SHORT v. PAYNE et al

Filing 11

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 4/20/16. 4/21/16 ENTERED AND COPIES MAILED TO PLAINTIFF, EMAILED TO COUNSEL AND COPY TO LEGAL.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HARVEY PATRICK SHORT,
Plaintiff,

CIVIL ACTION
NO. 15-5873

v.
CHIEF SHAWN PAYNE and OFFICER
PARKER, Millbourne Police Officers,
Defendants.
PAPPERT, J.

April 20, 2016
MEMORANDUM

Plaintiff Harvey Patrick Short (“Short”) sued Police Chief Shawn Payne (“Payne”) and
Officer Parker (“Parker”) of the Millbourne Police Department (collectively “the Officers”),
alleging the following claims: (1) false arrest and false imprisonment under 42 U.S.C. Section
1983; (2) an unreasonable search and seizure under the Fourth Amendment; (3) a due process
violation under the Fourteenth Amendment; and (4) intentional infliction of emotional distress.
Short’s allegations stem from a purported unlawful arrest which preceded his lawful arrest on
charges to which he ultimately pled guilty.
The Officers filed a motion to dismiss Short’s complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). Before the Court could rule on the Officers’ motion, Short filed a motion for
leave to amend his complaint. Attached to Short’s motion was a proposed amended complaint
which included additional claims of gross negligence and battery. The Court grants the Officers’
motion and denies Short’s motion given the futility of his proposed amendments.

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I.
On April 13, 2015, Chris Lynam (“Lynam), an employee at Perzan Auto Radio in Upper
Darby Township, Pennsylvania, told Payne that two cars were broken into over the previous
weekend. (Pl.’s Resp. to Defs.’ Mot. to Dismiss (“Pl.’s Resp.”) at Ex. A, ECF No. 7.)1 Lynam
stated that he was going to check the shop’s video cameras which faced the entrance to the
parking lot where the cars were parked. (Id.) The next day, Payne contacted Lynam and
discovered that a suspect—later identified as Short—was captured on video committing the
crimes. (Id.) After breaking into the cars, Short left the lot and walked in a westbound direction
on Market Street. (Id.) From the video footage, Payne was able to identify Short as “a light skin
black male approximately 5’7 160 lbs. wearing a black jacket, light colored pants and white
sneakers.” (Id.) Payne then went to a smoke shop at the intersection of Market and Burd Streets
to see if the store’s video recorded Short fleeing. (Id.) Payne obtained video of Short walking up
the street, but was still “attempting to get a good picture of the subject.” (Id.)
At approximately 11:15 p.m. on May 5, 2015, the Officers stopped Short on Market
Street as he was walking toward the intersection of Market and Burd Streets—the same area
where the crimes occurred. (Id.) Short was wearing dark sweat pants, white sneakers and a red
sweatshirt, and was carrying a black jacket and an open can of beer. (Id.) The Officers asked
Short where he was heading, to which Short responded, “to my sister Haddy’s house in Yeadon.”
(Id.) Short told the Officers that he sometimes lived at his sister’s, but also stayed at the
homeless shelter at 6310 Market Street. (Id.) “Based on the open container of alcohol and []
Short fitting the description” of the suspect captured on video, the Officers handcuffed Short and
brought him to the police station for investigation. (Id.; Compl. ¶¶ 4–7, ECF No. 1 at Ex. A.)
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Exhibit A to Short’s response is the affidavit of probable cause which ultimately led to his arrest. Since the
exhibit was attached to Short’s response and is “undisputedly authentic,” the Court may consider it in deciding the
Officers’ motion. Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

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Payne allegedly told Short that he had video of Short “committing misdemeanor crimes.”
(Compl. ¶ 8.) When they arrived at the station, Parker searched Short and handcuffed him to a
chair. (Id. ¶ 9.) The Officers then placed Short in a holding cell until they could verify the
addresses he provided. (Pl.’s Resp. at Ex. A.) After confirming the addresses, Payne took a
photo of Short and made copies of Short’s information, including his “4 identification cards,
social security card, medical cards and everything in [his] wallet.” (Id.; Compl. ¶ 11.) Short also
alleges the Officers took photos of his pants and shoes, “interrogated” him without advising him
of his Miranda rights, and subsequently put him in a cell. (Compl. ¶¶ 10, 13, 18.) While in the
cell, Short alleges that Payne “kept looking at video tapes on the computer and stating that the
person on the video looked like [Short].” (Id. at ¶ 12.) After “[a]bout 20 to 30 minutes, [Payne]
took [Short] out of the cell and said that he was not sure if it was [Short] in the video.” (Id.
¶ 20.) Payne returned Short’s belongings and released him. (Id. ¶ 21.)
Soon after releasing Short, Payne was able to access new video identifying Short as the
male breaking into the cars. (Pl.’s Resp. at Ex. A.) Specifically, one of the videos showed that
Short was wearing a red sweatshirt under his black jacket—the same red sweatshirt Short was
wearing when the Officers stopped him earlier that evening. (Id.) Payne thereafter filled out an
affidavit of probable cause for Short’s arrest. (Id.)
Short was arrested on June 9, 2015 and charged with committing the crimes for which he
was originally detained and questioned. (Id.) On August 31, 2015, Short pled guilty to
attempted theft from a motor vehicle and criminal mischief. (Id. at Ex. B.) He was later
sentenced to 23 months in jail and one year of probation, and was ordered to pay restitution.
(Id.)

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II.
A.
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead factual
allegations sufficient “to raise a right to relief above the speculative level . . . on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Short filed his complaint pro se so the Court “must
liberally construe his pleadings.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d. Cir. 2003)
(citation omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se
complaints to “less stringent standards than formal pleadings drafted by lawyers”). “‘Liberal
construction’ of pro se pleadings is merely an embellishment of the notice-pleading standard set
forth in the Federal Rules of Civil Procedure.” Castro v. United States, 540 U.S. 375, 386
(2003) (Scalia, J., concurring). “Courts are to construe complaints so ‘as to do substantial
justice,’ keeping in mind that pro se complaints in particular should be construed liberally.”
Bush v. City of Phila., 367 F. Supp. 2d 722, 725 (E.D. Pa. 2005) (citing Alston v. Parker, 363
F.3d 229, 234 (3d Cir. 2004) (citations omitted)).
A court should “consider only the allegations in the complaint, exhibits attached to the
complaint, matters of public record, and documents that form the basis of a claim.” Lum v. Bank
of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). Whether a complaint states a plausible claim for
relief is a context-specific task that “requires the reviewing court to draw on its judicial
experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citation omitted).
B.
Under Federal Rule of Civil Procedure 15(a), “courts may grant . . . amendments ‘when
justice so requires.’” Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir. 2003), as

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amended (Jan. 20, 2004) (citing FED. R. CIV. P. 15(a)). In the context of a pro se complaint, “a
district court must give the plaintiff an opportunity to amend his pleading to cure the defect
unless such an amendment would be futile or prejudicial.” Chatman v. City of Pittsburgh, 437 F.
App’x 115, 116 (3d Cir. 2011) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d
Cir. 2002)). “Futility” means that the amended complaint would fail to state a claim upon which
relief could be granted. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citing In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)).
III.
Counts I and II of Short’s complaint allege claims for false arrest and false imprisonment.
(Compl. ¶¶ 22–23.) Claims for false arrest and false imprisonment under Section 1983 originate
from the Fourth Amendment’s guarantee against unreasonable seizures. See Basile v. Twp. of
Smith, 752 F. Supp. 2d 643, 650–51 (W.D. Pa. 2010); James v. City of Wilkes-Barre, 700 F.3d
675, 682 (3d Cir. 2012). Because false arrest and false imprisonment claims are nearly identical,
they are generally analyzed together.2 See Brockington v. City of Philadelphia, 354 F. Supp. 2d
563, 571 n.8 (E.D. Pa. 2005) (quoting Maiale v. Youse, No. 03-5450, 2004 WL 1925004, at *12
(E.D. Pa. Aug. 27, 2004)). Short separately alleges an unlawful search and seizure claim in
Count IV. (Compl. ¶ 25.) That claim, however, is based on the same facts which form the basis
for his Section 1983 claims. (Id.) The Court accordingly analyzes Counts I, II and IV together.
Count V of Short’s complaint alleges a due process violation under the Fourteenth
Amendment, again premised on the same facts as Counts I, II and IV. (Id. ¶ 26.) Given that
“[t]he Fourth Amendment—the more specific form of relief—is the proper vehicle for th[ese]
claim[s],” Count V of Short’s complaint is dismissed. Geist v. Ammary, 2012 WL 6762010, at *2
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Claims of false arrest and false imprisonment are predicated on an arrest made without probable cause in
violation of the Fourth Amendment. See Quinn v. Cintron, No. 11-2471, 2013 WL 5508667, at *3 (E.D. Pa. Oct. 3,
2013) (citations omitted).

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n.9 (E.D. Pa. Dec. 20, 2012) (citing Quales v. Borough of Honesdale, 2011 WL 3020904, at *5
(M.D. Pa. July 22, 2011)); see also Rosembert v. Borough of E. Lansdowne, 14 F. Supp. 3d 631,
639 (E.D. Pa. 2014) (dismissing Fourteenth Amendment due process claim predicated on the
same facts as the plaintiff’s Fourth Amendment unreasonable search and seizure claims).
The Officers contend that Short’s Fourth Amendment claims are not cognizable under
Heck v. Humphrey, 512 U.S. 477 (1994) in light of Short’s guilty plea. (Defs.’ Mot. at 3–4.) In
Heck, the Supreme Court of the United States examined whether a person convicted of a crime
may recover damages related to his conviction under 42 U.S.C. Section 1983. The Court held
that:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus[.]
Heck, 512 U.S. at 486–87. If, however, the district court determines “that the plaintiff’s action,
even if successful, will not demonstrate the invalidity of any outstanding criminal judgment
against the plaintiff, the action should be allowed to proceed.” Id. at 487. The primary issue in
this case is therefore whether Short’s claims “necessarily imply the invalidity of his conviction,”
and thus, whether Heck bars those claims. Id.
The Third Circuit Court of Appeals has held that in certain circumstances, a guilty plea is
sufficient to bar a subsequent Section 1983 claim under Heck. See Rosembert, 14 F. Supp. at 640
(citing Gilles v. Davis, 427 F.3d 197, 209 n.8 (3d Cir. 2005)). Heck does not, however, bar a
claim “where a plaintiff seeks damages for the defendant’s use of improper procedures, so long
as the validity of a plaintiff’s conviction is not called into question.” Id. (citing McBride v.
Cahoone, 820 F. Supp. 2d 623, 632 (E.D. Pa. 2011)). For example, “a conviction and sentence
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may be upheld even in the absence of probable cause for the initial stop and arrest.”
Montgomery v. De Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998) (citing Mackey v. Dickson, 47
F.3d 744, 746 (5th Cir. 1995) (stating that “[i]t is well established that a claim of unlawful arrest,
standing alone, does not necessarily implicate the validity of a criminal prosecution following the
arrest”)).
If, however, a successful false arrest claim could result in the suppression of essential
evidence discovered during that arrest, it necessarily calls into question the validity of the
conviction. See Rosembert, 14 F. Supp. 3d at 640–41 (citing Mosby v. O’Brie, 532 Fed. App’x
84, 86 (3d Cir. 2013) (finding that Heck barred a Fourth Amendment claim where an arrest made
without probable cause would have resulted in the evidence obtained from the arrest being
suppressed in a criminal trial)). Short does not contend that his second arrest was unlawful.
Rather, he contends that his initial detention was without probable cause. (Pl.’s Resp. at 5.)
Short’s Fourth Amendment claims are barred by Heck even if his first arrest was not
supported by probable cause. When the Officers detained Short, they noticed that he was
wearing a red sweatshirt. (Pl.’s Resp. at Ex. A.) At that time, the Officers did not have video
showing the suspect wearing a red sweatshirt as he broke into the cars. (Id.) After releasing
Short, however, the Officers acquired additional video establishing that Short’s red sweatshirt
matched the one worn by the suspect. (Id.) Given that the red sweatshirt was only discovered
pursuant to the Officers’ initial arrest, “a finding that the search and/or arrest was unlawful
would likely result in the exclusion of this evidence.” Rosembert, 14 F. Supp. 3d at 640–41
(citing Mosby, 532 Fed. App’x at 86). Because Short pled guilty, a finding that he was arrested
without probable cause would likely result in the suppression of evidence which ultimately led to
the issuance of his arrest warrant, and therefore necessarily imply the invalidity of his conviction.

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As Short’s conviction has not been vacated or otherwise invalidated, the Court finds Counts I, II
and IV of Short’s complaint barred by Heck.3
IV.
Count III of Short’s complaint alleges a claim for intentional infliction of emotional
distress (“IIED”). (Compl. ¶ 24.) To establish a claim for IIED, Short must show conduct that is
“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Hoy v.
Angelone, 720 A.2d 745, 754 (Pa. 1998) (citing Buczek v. First Ntl. Bank of Mifflintown, 531
A.2d 1122, 1125 (Pa. Super. Ct. 1987)). “Conduct that Pennsylvania courts have deemed
sufficiently outrageous to constitute IIED includes: (1) killing the plaintiff’s son with an
automobile and then burying the body, rather than reporting the incident to the police; (2)
intentionally fabricating documents that led to the plaintiff’s arrest for murder; and (3)
knowingly releasing to the press false medical records diagnosing the plaintiff with a fatal
disease.” Dull v. W. Manchester Twp. Police Dep’t, 604 F. Supp. 2d 739, 756 (M.D. Pa. 2009)
(citing Hoy, 720 A.2d at 754 (collecting cases)). Pennsylvania courts also require, for purposes
of an IIED claim, evidence of a physical injury caused by the defendant’s conduct. See Hart v.
O’Malley, 647 A.2d 542, 554 (Pa. Super. Ct. 1994).
Short alleges that he suffered from “shock, fright, fear, mental anguish, physical
discomfort, embarrassment, loss of enjoyment of life, etc.” (Compl. ¶ 27.) While these

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To the extent Short’s complaint can be read to allege Fifth or Sixth Amendment Miranda violations, those
claims are also dismissed. “The Fifth Amendment protects against compelled self-incrimination.” James v. York
Cty. Police Dep’t, 160 F. App’x 126, 133 (3d Cir. 2005) (citing Chavez v. Martinez, 538 U.S. 760, 766 (2003)
(plurality)). Short does not allege that he incriminated himself in any way, and the Officers released him after thirty
minutes. He therefore cannot bring a claim pursuant to 42 U.S.C. § 1983 merely for being questioned before being
provided with Miranda warnings. See Chavez, 538 U.S. at 766–70; Renda v. King, 347 F.3d 550, 552 (3d Cir.
2003). Likewise, Short has no free-standing Fifth Amendment claim for denial of counsel during his interrogation
given that the right to counsel during a custodial interrogation is merely a procedural safeguard, and not a
substantive right. See Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir.1994)).

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conclusory allegations are typically insufficient to survive a 12(b)(6) motion, the Court accepts
them as true given that Short’s complaint was filed pro se. In any event, Short fails to allege
conduct that “go[es] beyond all bounds of decency” such that it is “utterly intolerable in a
civilized society.” Hoy, 720 A.2d at 754. Even without probable cause, the Officers’ actions in
detaining and ultimately releasing Short after thirty minutes were reasonable under the
circumstances. See, e.g., Dull, 604 F. Supp. 2d at 756 (finding improper arrests not sufficiently
extreme or outrageous to prevail on an IIED claim where defendants “[a]t most . . . miscalculated
the propriety of their law enforcement activities”). Count III is accordingly dismissed.
V.
Short’s proposed amended complaint seeks to add claims of gross negligence and battery.
(Pl.’s Prop. Am. Compl. (“Am. Compl.”) ¶¶ 38–39, ECF No. 9 at *7.) Short also seeks to add
the following allegations: (1) he only pled guilty because a probation officer told him that his
probation would be reinstated regardless of the outcome; (2) he was admitted to “Crozer Key
Stone Health Network Hospital’s psychiatric unit for major depression, suicidalness [sic], and
schizophrenia for 13 days”; (3) he suffered high blood pressure and migraine headaches; and
(4) he was given medication while in the psychiatric unit. (Am. Compl. ¶¶ 28–32.) Short’s
allegations of additional physical injury purportedly stemming from the Officers’ initial arrest
are futile. As discussed supra Part IV, the Officers’ actions were not akin to those “utterly
intolerable in a civilized society.” Hoy, 720 A.2d at 754.
Short’s proposed gross negligence claim is also futile. The Political Subdivision Tort
Claims Act (“PSTCA”), 42 Pa. Cons. Stat. § 8541 et seq., “grants broad immunity from tort suits
to local agencies and their employees.” Cooper v. City of Chester, 810 F. Supp. 618, 625 (E.D.
Pa. 1992). The Act generally immunizes local agencies and their employees unless the alleged

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wrongdoing falls into one of the eight exceptions listed in the Act. See id. (citing 42 Pa. Cons.
Stat. §§ 8541, 8545). Those exceptions are: (1) vehicle liability; (2) care, custody or control of
personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility
service facilities; (6) streets; (7) sidewalks; (8) care, custody or control of animals. 42 Pa. Cons.
Stat. § 8542(b). None of Short’s allegations fall into one of these eight exceptions. His proposed
gross negligence claim is therefore futile as it is barred by PSTCA.
Likewise, Short’s proposed battery claim is futile. Generally, a defendant is liable for
battery if they intend to cause a harmful or offensive contact or an imminent apprehension of
such a contact, and an offensive contact directly or indirectly results. See Montgomery v. BazazSehgal, 742 A.2d 1125, 1130 (Pa. Super. Ct. 1999), aff’d, 798 A.2d 742 (Pa. 2002). Even where
an arrest is not supported by probable cause, “[t]he reasonableness of the force used in making
the arrest determines whether the police officer’s conduct constitutes . . . [a] battery.” Glass v.
City of Philadelphia, 455 F. Supp. 2d 302, 366 (E.D. Pa. 2006) (citation omitted) (finding no
viable battery claim despite a lack of probable cause to make the arrest where the force used was
neither excessive nor unreasonable). Short fails to allege conduct by the Officers that was
excessive or unreasonable. Short was seen in the area of the crimes at roughly the same time of
night the crimes were committed. He was wearing clothes that substantially resembled those
worn by the suspect in the video. Given their belief that Short was the suspect—which
ultimately proved accurate—the Officers’ actions in detaining Short for thirty minutes and
subsequently releasing him were reasonable under the circumstances.
The Court grants the Officers’ motion to dismiss and denies Short’s motion for leave to
file an amended complaint given the futility of the allegations. Short’s complaint is accordingly
dismissed. An appropriate order follows.

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BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

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