BURTON v. THE CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 9/8/16. 9/8/16 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THE CITY OF PHILADELPHIA,
September 8, 2016
Before the court is the motion of defendant
Philadelphia Police Detective Justin Montgomery (“Detective
Montgomery”) for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure in this action under
42 U.S.C. § 1983.
Plaintiff Crystal Burton (“Burton”), the mother of
A.B., originally brought this lawsuit against The City of
Philadelphia, The Philadelphia Police Department, The City of
Philadelphia Department of Human Services, Pasquale Mignano,
Robert McGarrity (“McGarrity”), and Charles Ramsey (“Ramsey”).
After the defendants moved to dismiss, Burton filed her first
amended complaint naming as defendants only The City of
Philadelphia, Vanessa Garrett, McGarrity, and Ramsey.
defendants again moved to dismiss.
In response, the plaintiff
withdrew her claims against all defendants except McGarrity.
granted McGarrity’s motion to dismiss Count Six of the first
amended complaint but denied the motion of McGarrity with regard
to Counts One through Five because “at this early stage” we
“d[id] not have a sufficient record to decide the issue of
In April 2016, pursuant to a stipulation by the
parties, we entered an order dismissing Counts One, Two, Four,
and Five and substituting Detective Montgomery for McGarrity.
As such, the only remaining claim in this action is Count Three
alleging that Detective Montgomery violated Burton’s
constitutional right to be free from malicious prosecution.
The following facts are not in dispute.
In July 2013,
Burton’s three-year old son, A.B., was under the care of a
babysitter, who brought A.B. to a physician for asthma issues.
During the visit, the physician noticed one burn injury on
A.B.’s left elbow and another on his upper back.
In his notes,
the physician wrote “[c]hild stated that mom burned him.”
physician reported the burn injuries to the Philadelphia
Department of Human Services (“DHS”) as required by the Child
Protective Services Law, 23 Pa. Cons. Stat. § 6311.
subsequently notified the Philadelphia Police Department.
Detective Montgomery of the Philadelphia Police Department
Special Victim’s Unit was randomly assigned to the case.
Thereafter, A.B. was placed in a foster home.
of his investigation, Detective Montgomery visited A.B.’s foster
home to photograph his injuries.
He also obtained a search and
seizure warrant for A.B.’s medical records.
that search, he briefly spoke with the reporting physician.
physician told him that A.B.’s injuries were consistent with
cigar or cigarette burns.
Detective Montgomery also referred A.B. for a forensic
interview with the Philadelphia Children’s Alliance
Alliance has a team of forensic interviewers
specially trained to speak with children.
observed the interview from a separate room behind one-way
During the interview, A.B. stated that his
mother had burned his arms and legs.
When asked how Burton had
burned him, A.B. responded “my arms and legs.”
A.B. told the
Alliance interviewer that Burton had burned others but did not
respond when asked to identify those individuals.
interviewer asked if anyone had witnessed A.B. being burned by
A.B. identified “Nadine” as a witness. 1
In its interview summary, Alliance stated that A.B.
had “[p]rovide[d] information consistent with the allegations.”
Alliance noted that “[i]t should be considered that [A.B.] may
1. Detective Montgomery did not interview “Nadine” or mention
her in his Affidavit of Probable Cause.
not be able to provide clarifying information due to young age,
age appropriate developmental limitation and speech articulation
It indicated that A.B. had a below normal
developmental level for his age, namely “challenges with speech
In a section entitled “FORENSIC ISSUES Truth and
Lie/Real or Pretend,” Alliance wrote that A.B. had been
“[i]nconsistent in demonstration.”
The report also stated that
A.B. “[m]ay be unable to clearly disclose abuse Due to his young
age, age appropriate developmental limitations and speech
Detective Montgomery prepared an affidavit of probable
cause in support of an application for an arrest warrant for
It stated that A.B.’s treating physician notified DHS
of two burn injuries on A.B.’s body which were “in a healing
stage and consistent with being caused by a cigar.”
that the physician told DHS that A.B. had identified Burton as
the source of these injuries.
The affidavit also described the
interview of A.B. conducted by Alliance, during which A.B. had
stated that Burton burned various parts of his body.
the affidavit declared that A.B.’s medical records had been
obtained from the treating physician pursuant to a search
An assistant district attorney in the District
Attorney’s Charging Unit subsequently reviewed the arrest
After the assistant district attorney
approved the affidavit and charges 2, Detective Montgomery
submitted those documents to the arraignment court magistrate.
The arraignment court magistrate issued the arrest warrant.
Burton was subsequently arrested and incarcerated for
approximately four months at the Riverside Correctional
In December 2014, the Philadelphia Court of Common
Pleas dismissed the charges against Burton after finding that
A.B. was not competent to testify against her.
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A dispute is genuine if the evidence is such that a reasonable
factfinder could return a verdict for the nonmoving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
Summary judgment is granted where there is insufficient record
evidence for a reasonable factfinder to find for the nonmovant.
See id. at 252.
“The mere existence of a scintilla of evidence in
2. The charges were one count each of aggravated assault,
endangering the welfare of a child, possible instrument of a
crime, simple assault, and recklessly endangering another
support of the [nonmoving party]’s position will be insufficient;
there must be evidence on which the jury could reasonably find for
When ruling on a motion for summary judgment, we may
only rely on admissible evidence.
See, e.g., Blackburn v. United
Parcel Serv., Inc., 179 F.3d 81, 94-95 (3d Cir. 1999).
We view the
facts and draw all inferences in favor of the nonmoving party.
See In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.
However, “an inference based upon a speculation or
conjecture does not create a material factual dispute sufficient to
defeat entry of summary judgment.”
Robertson v. Allied Signal,
Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).
Burton alleges, under 42 U.S.C. § 1983, that Detective
Montgomery subjected her to malicious prosecution in violation
of the Fourth Amendment of the United States Constitution 3 as
incorporated by the due process clause of the Fourteenth
The Fourth Amendment provides:
[t]he right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by
Oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend IV.
“To recover under 42 U.S.C. § 1983, [the plaintiff]
must establish that a state actor engaged in conduct that
deprived [her] of ‘rights, privileges, or immunities’ secured by
the constitution or laws of the United States.”
See Wilson v.
Russo, 212 F.3d 781, 786 (3d Cir. 2000) (quoting Kneipp v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996)).
Detective Montgomery raises the defense of qualified
Under the doctrine of qualified immunity, government
officials are shielded “from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
See Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Qualified immunity “protects ‘all but the plainly incompetent or
those who knowingly violate the law.’”
See Anderson v.
Creighton, 483 U.S. 635, 638 (1987).
The qualified immunity doctrine requires a two-step
First, we must determine “whether the facts that a
plaintiff has . . . shown . . . make out a violation of a
See Pearson, 555 U.S. at 232.
we must decide whether the constitutional right at issue was
“clearly established” at the time of the alleged misconduct.
Unless the answer to both questions is “yes,” the official
is entitled to qualified immunity.
“permitted to exercise their sound discretion in deciding which
of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular
case at hand.”
Id. at 236.
Here, our analysis begins with the first prong.
arrange the facts in the light most favorable to the plaintiff,
and then determine whether, given precedent, those ‘facts,’ if
true, would constitute a deprivation of a right.”
212 F.3d at 786.
Our Court of Appeals has stated:
[t]o prevail in a Section 1983 action
malicious prosecution action, a plaintiff
(1) the defendant[ ] initiated a criminal
(2) the criminal proceeding ended in the
(3) the proceeding was initiated without
(4) the defendant[ ] acted maliciously or
for a purpose other than bringing the
plaintiff to justice; and
(5) the plaintiff suffered a deprivation of
liberty consistent with the concept of
seizure as a consequence of a legal
DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir.
2005) (citing Estate of Smith v. Marasco, 318 F.3d 497, 521
(3d Cir. 2003)).
Burton was incarcerated for approximately four months
and can therefore make out the fifth element because she
suffered a deprivation of her liberty.
With regard to the
second element, we note that the criminal proceeding was
dismissed by the Court of Common Pleas because A.B. was not
competent to testify against Burton.
We consider such a
dismissal as a resolution of the proceeding “in the plaintiff’s
We now turn to the third and fourth elements, that is
whether the proceeding was initiated without probable cause and
whether Detective Montgomery “acted maliciously or for a purpose
other than bringing the plaintiff to justice.”
F.3d at 601.
See DiBella, 407
Burton relies on a case from the Court of Appeals
for the Sixth Circuit for the proposition that proving malice is
equivalent to showing the absence of probable cause.
v. Anderson, 625 F.3d 294, 310 (6th Cir. 2010).
Sixth Circuit “conclude[d] that malice is not an element of a
§ 1983 malicious prosecution.”
However, that case is
Our Court of Appeals has time and again stated that
to prove a claim of malicious prosecution, “a plaintiff must
show . . . the defendant acted maliciously or for a purpose
other than bringing the plaintiff to justice” in addition to
proving the absence of probable cause.
See Black v. Montgomery
Cty., ____ F.3d ____, 2016 WL 4525230, at *4 (3d Cir. Aug. 30,
There is no evidence to show that Detective Montgomery
A physician reported and his medical records
confirmed that he had seen burn injuries on A.B., a three-year
old boy, and that the boy stated that his mother had burned him.
The boy repeated this statement later during an interview at the
Philadelphia Children’s Alliance.
Detective Montgomery cannot
be said to have acted maliciously against Burton under these
Furthermore, Burton cannot establish that probable
cause was lacking.
“Probable cause to arrest exists when the
facts and circumstances within the arresting officer’s knowledge
are sufficient in themselves to warrant a reasonable person to
believe that an offense has been or is being committed by the
person to be arrested.”
Merkle v. Upper Dublin Sch. Dist.,
211 F.3d 782, 788 (3d Cir. 2000) (quoting Orsatti v. N.J. State
Police, 71 F.3d 480, 482 (3d Cir. 1995)).
requires more than mere suspicion, however, it does not require
that the officer have evidence sufficient to prove guilt beyond
a reasonable doubt.”
Orsatti, 71 F.3d at 482.
probability, not certainty, is the touchstone of reasonableness
under the Fourth Amendment.”
See Hill v. California, 401 U.S.
797, 804 (1971).
“Although the question of probable cause is generally
a question for the jury, a district court may conclude on
summary judgment ‘that probable cause exists as a matter of law
if the evidence, when viewed in the light most favorable to the
plaintiff, reasonably would not support a contrary factual
Minatee v. Philadelphia Police Dep’t, 502 F. App’x
225, 228 (3d Cir. 2012) (quoting Merkle, 211 F.3d at 788–789).
In this regard, “it is irrelevant to the probable cause analysis
what crime a suspect is eventually charged with . . . or whether
a person is later acquitted of the crime for which she or he was
See Wright v. City of Philadelphia, 409 F.3d 595,
602 (3d Cir. 2005).
The affidavit submitted by Detective Montgomery to the
arraignment court magistrate as part of the arrest warrant
application undisputedly established probable cause to arrest
It noted that A.B.’s treating physician had identified
burn injuries on A.B.’s back and arm, which A.B. said were
caused by Burton.
It also stated that A.B. told Alliance
interviewers that his mother had burned several parts of his
The affidavit further explained that A.B’s medical
records, which had been obtained from the treating physician
pursuant to a search warrant, documented A.B.’s injuries and his
statement to the physician that Burton had caused those
We acknowledge that Detective Montgomery relied
substantially upon statements made by A.B., a three-year old
child, in applying for the arrest warrant.
noted above, A.B. stated on at least two separate occasions that
Burton had burned him.
Those statements were corroborated
during Detective Montgomery’s investigation, which included the
Alliance interview of A.B.
He had reviewed A.B.’s medical
records and had the benefit of the reporting physician’s written
and oral statements about the burn injuries on A.B.’s left arm
Although A.B. provided varying pieces of information
to the physician and to Alliance, that variation does not
undermine probable cause.
Burton cites United States v.
Frazier, 678 F. Supp. 499 (E.D. Pa. 1986), in arguing that
A.B.’s statements were unreliable.
In Frazier, the court upheld
the admissibility of out-of-court declarations by a three-year
old victim of sexual assault even though those accounts
“contained variations and discrepancies,” because each account
conveyed that the child had sustained a sexual assault of some
type and the physicians who examined and spoke with the child
confirmed that a sexual assault had taken place.
678 F. Supp. at 502.
Here, although A.B.’s statements to his
physician and Alliance contained varying information, each
statement clearly provided that Burton had burned A.B.
statements were corroborated by the burn injuries discovered by
the physician and by Detective Montgomery’s own observation of
It goes without saying that probable cause is a
lesser standard than proof beyond a reasonable doubt.
Moreover, Burton argues that no probable cause exists
because the investigation of A.B.’s injuries was inadequate.
At the time that he submitted the affidavit of
probable cause, Detective Montgomery had sufficient knowledge of
the facts and circumstances “to warrant a reasonable person to
believe that an offense ha[d] been committed by the person to be
See Orsatti, 71 F.3d at 484.
He “had no further
constitutional duty to continue [his] investigation in an
attempt to unearth potentially exculpatory evidence undermining
the probable cause determination.”
See Lincoln v. Hanshaw,
375 F. App’x 185, 190 (3d Cir. 2010) (citing Baker v. McCollan,
443 U.S. 137, 145-46 (1979)).
In particular, Detective
Montgomery was under no obligation to locate and interview
“Nadine,” the witness identified by A.B. during his Alliance
Finally, we must emphasize that the arrest of Burton
was the result of an arrest warrant.
application for the arrest warrant of Burton was approved by an
assistant district attorney and was thereafter approved by an
arraignment court magistrate.
Even viewing the facts in the light most favorable to
Burton, there is no evidence to establish that Detective
Montgomery violated her constitutional right to be free of
Thus, we have no need to inquire as to
whether that constitutional right was clearly established.
reasonable fact finder could return a verdict for Burton.
Accordingly, we will grant the motion of Philadelphia Police
Detective Justin Montgomery for summary judgment and enter
judgment in his favor.
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