AKL v. PENNSYLVANIA STATE POLICE TROOP K- DELAWARE COUNTY et al

Filing 66

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 3/6/18. 3/6/18 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

YASMINE AKL
Plaintiff
vs.
PENNSYLVANIA STATE POLICE
TROOP K- DELAWARE COUNTY,
ET. Al.,
Defendants

:
:
: CIVIL ACTION
:
:
:
:
: NO. 16-CV-1096
:
:
:

MEMORANDUM AND ORDER

JOYNER, J.

March 6, 2018

This case is once again before this Court on Motion of
Defendant Donald Prifti for Summary Judgment.1

For the reasons

which follow, the motion shall be granted.
Factual Background
As was discussed in greater detail in our recent Memorandum
and Order addressing the Pennsylvania State Troopers’ Motion for
Summary Judgment, this case arose out of an incident which
occurred on the evening of June 28, 2015 at Plaintiff’s residence
located at 4 Eavenson Way in Garnet Valley, Pennsylvania.
Earlier that day, Defendant Donald Prifti had received a phone

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Moving Defendant filed a Motion to Join the Motion for Summary
Judgment filed by the Pennsylvania State Police Defendants - Troopers Gibson
and Wright and Corporal Michaels, which we now treat as a separately-filed
motion for summary judgment.

call from his cousin, Defendant Donika Plyku asking for his help
in obtaining her possessions from the Plaintiff’s home, where she
had been living with her husband, Ramsey Kraya, Plaintiff, who is
Kraya’s mother and his adult brother and sister.

Some two days

prior, Plaintiff and Kraya had informed Plyku that she was not to
return to the Garnet Valley house unless and until she had signed
a post-nuptial agreement.

Prifti subsequently met Plyku at the

Troop K Barracks of the State Police in Media, Pennsylvania,
where they spoke with Defendant Troopers Matthew Gibson and
Carlton Wright.
After explaining the situation to the Troopers and producing
documentary evidence verifying her identification and
demonstrating her residency, Plyku asked what she could do to
collect her belongings.

Defendant Gibson informed Ms. Plyku that

because her husband had not harmed her physically, there were no
grounds for filing a petition for a protection from abuse order.
However, apparently satisfied that Plyku resided at the property,
Gibson advised her to go to the house and ask Plaintiff and her
family for access to the residence so she could claim her
belongings.

In the event that she was unable to gain access or

that she was in danger of having an altercation, Gibson told
Plyku to call the state police immediately.
Plyku and Prifti then left the barracks and went to the
Plaintiff’s house.

No one answered the door and it appeared as

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though no one was home.

After trying to enter the house using

her keys, Plyku found that the locks had been changed.

She

called the state police barracks and Troopers Gibson and Wright,
as well as Corporal Mark Michaels, arrived at the residence a
short while later.

The troopers knocked on the doors to the

residence and announced their presence but received no response.
Cpl. Michaels then instructed Plyku to call Kraya and, while he
did not answer initially, he did call her back fairly quickly.
Plyku put the call on speaker and told Kraya she was at the house
and wanted to get her belongings.

Kraya insisted she was not

allowed to be there and that she was not going to get her
possessions, at one point asking her: “What don’t you get?
You’re not getting in that house.”

Hearing this exchange, Cpl.

Michaels told Kraya that he was a Pennsylvania State Trooper,
that he was at the house with Plyku and that she was entitled to
enter the home and collect her possessions.

Cpl. Michaels asked

Kraya to please come and let his wife into the residence so she
could remove her belongings.

At the time, Plaintiff and all

three of her adult children were approximately an hour away
attending an event in Princeton, NJ.

Plaintiff then got on the

phone and repeatedly told Michaels that she (Plaintiff) owned the
house, that Plyku did not live there, did not belong there and
that she was not allowed in the house.

After again asking

Plaintiff to please come and let Plyku into the house and

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Plaintiff again insisting that Plyku was not allowed to be there,
Cpl. Michaels told Plaintiff that he believed that Plyku lived
there and that she could therefore enter the home in any manner
that she saw fit.

As Plaintiff continued to insist that Plyku

was not allowed to be there, Cpl. Michaels advised Plyku to end
the call and she did so.
Following this exchange, Plyku and Prifti considered various
ways to gain entry to the house.

Eventually, they gained entry

when Prifti retrieved a tire iron from his car and threw it into
the sliding glass door from the rear deck, shattering the glass
and activating the alarm.

Plyku then permitted Prifti and

Troopers Wright and Gibson into the residence.

The Troopers did

a quick walk-through of the property to make sure there was in
fact no one present and then exited and waited outside on the
front lawn and driveway while Prifti and Plyku collected her
possessions.

Some 30 minutes later, everyone departed the

property.
In her Second Amended Complaint2, Plaintiff contends that
the Defendants broke into her home by smashing the glass out of
her patio doors with a tire iron and that they took away a large

2

Previously, this Court partially granted the State Police Defendants’
Motion to Dismiss, striking the claims against all of the police defendants in
their official capacity, the claims for violation of Plaintiff’s 14 th
Amendment substantive and procedural due process and larceny claims, and the
respondeat superior claims against Captain Raykovitch and Lt. Turk as the
Commander and Station Commanding officers for Troop K. Leave to amend was
granted and Plaintiff filed an Amended Complaint, which was subsequently again
amended to identify the precise state troopers involved.

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quantity of her personal property, including cash, gold coins,
computers, tablets, watches, earrings and other jewelry, coats,
clothing and shoes, pots and pans, cameras, purses, rugs,
Waterford and Lenox glasses, plates and bowls, a coffee maker and
shelving from her refrigerator.

By her amended pleadings,

Plaintiff alleges causes of action against all of the Defendants
pursuant to 42 U.S.C. §1983 for unlawful search and seizure and
failure to protect her property from unlawful seizure under the
Fourth and Fourteenth Amendments and against Plyku for common law
conversion.

By separate Memorandum and Order, we recently

granted the motion for summary judgment of the Pennsylvania State
Policemen, which motion Defendant Prifti seeks to join and which
we now independently address here.
Standards for Ruling on Summary Judgment Motions
Under Fed. R. Civ. P. 56(a), any party may move for summary
judgment on any claim or defense and the Court shall grant the
motion “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.”

In all cases, the initial burden is on the party

seeking summary judgment to point to the evidence which it
believes demonstrates the absence of a genuine issue of material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.

2548, 91 L. Ed. 2d 265 (1986); United States v. Donovan, 661 F.
3d 174, 185 (3d Cir. 2011).

And, the court reviewing a motion

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for summary judgment should view the facts in the light most
favorable to the non-moving party and draw all reasonable
inferences in that party’s favor. Burton, supra,(citing
Scheidemantle v. Slippery Rock University, State System of Higher
Educ., 470 F.3d 535, 538 (3d Cir. 2006)).
It should be noted that the line between reasonable
inferences and impermissible speculation is often “thin,” but is
nevertheless critical because “an inference based upon a
speculation or conjecture does not create a material factual
dispute sufficient to defeat summary judgment.”

Halsey v.

Pfeiffer, 750 F. 3d 273, 287 (3d Cir. 2014)(quoting Robertson v.
Allied Signal, Inc., 914 F.2d 360, 382, n.12 (3d Cir. 1990) and
Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469, 474 (3d Cir.
1985)).
Id.

Inferences must flow directly from admissible evidence.

Further, an issue is genuine only if there is a sufficient

evidentiary basis on which a reasonable jury could find for the
non-moving party, and a factual dispute is material only if it
might affect the outcome of the suit under governing law. Kaucher
v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)(citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986)).

In any event, to survive summary

judgment, the non-moving party must present more than a mere
scintilla of evidence; there must be evidence on which the jury
could reasonably find for the non-movant.

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Burton, supra,(quoting

Jakimas v. Hoffman-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir.
2007)).
Discussion
Defendant Prifti makes two arguments in support of his
assertion that he is entitled to the entry of judgment in his
favor.

First, he claims that he can only be found to have

violated the Plaintiff’s constitutional rights if he were acting
as an instrument or agent of the state police.

He secondarily

argues that if he is found to be a private actor assisting
government officials, he too is entitled to qualified immunity.
It is well-settled that the purpose of §1983 is to deter
state actors from using the badge of their authority to deprive
individuals of their federally guaranteed rights and to provide
relief to victims if such deterrence fails.

Wyatt v. Cole, 504

U.S. 158, 161, 112 S. Ct. 1827, 1830, 118 L. Ed.2d 504 (1992).
To accomplish this objective, §1983 provides a cause of action
against any person who deprives an individual of federally
guaranteed rights “under color” of state law.

And, “[a]nyone

whose conduct is ‘fairly attributable to the State’ can be sued
as a state actor under §1983.”

Filarsky v. Delia, 566 U.S. 377,

383, 132 S. Ct. 1657, 1661, 182 L. Ed.2d 662, 668 (2012)(citing
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744,
73 L. Ed.2d 482 (1982) and 42 U.S.C. §1983).

Thus, §1983 can

sometimes impose liability upon a private individual.

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Richardson

v. McKnight, 521 U.S. 399, 403, 117 S. Ct. 2100, 2103, 138 L.
Ed.2d 540 (1997).
In addressing what “under color of state law” means, the
Supreme Court has observed:
“[p]rivate persons, jointly engaged with state officials in
... prohibited action are acting ‘under color’ of law for
purposes of [§1983]. To act ‘under color’ of law does not
require that the accused be an officer of the State, [i]t is
enough that he is a willful participant in joint activity
with the State or its agents.”
Lugar, 157 U.S. at 941, 102 S. Ct. 2756(quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1605-1606, 26 L.
Ed.2d 142 (1970)).

Stated otherwise, “[a]ction under color of

state law ‘requires that one liable under §1983 have exercised
power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state
law.’” Harvey v. Plains Township Police Dep’t., 635 F.3d 606, 609
(3d Cir. 2011)(quoting Abbott v. Latshaw, 164 F.3d 141, 146 (3d
Cir. 1998)).

If a defendant has not acted under color of state

law, there is no grounds for suit under §1983. See, Rendell-Baker
v. Kohn, 457 U.S. 830, 838, 102 S. Ct. 2764, 2770, 73 L. Ed.2d
418 (1982)(“If the action of the respondent school is not state
action, our inquiry ends”); Pennsylvania General Energy Co., LLC
v. Grant Township, Civ. A. No. 14-209ERIE, 2017 U.S. Dist. LEXIS
48716 (W.D. Pa. March 31, 2017)(“Generally, a private corporation
does not act under color of state law and a legal claim against
such a private actor under §1983 fails”).
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Moreover, what actions may be fairly attributable to the
State “is a matter of normative judgment, and the criteria lack
rigid simplicity.”

Brentwood Academy v. Tennessee Secondary

School Athletic Ass’n., 531 U.S. 288, 295, 121 S. Ct. 924, 148 L.
Ed.2d 807 (2001).

To illustrate, the Supreme Court has held that

a challenged activity may be state action: (1) when it results
from the State’s exercise of “coercive power;” (2) when the State
provides “significant encouragement, either overt or covert, or
when a private actor operates as a “willful participant in joint
activity with the State or its agents;” (3) when a “nominally
private entity” “is controlled by an ‘agency of the State,” when
it has been “delegated a public function by the State,” when it
is “entwined with governmental policies,” or “when government is
‘entwined in its management or control.”

Id,(quoting, inter

alia, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 627-628,
111 S. Ct. 2077, 114 L. Ed.2d 660 (1991); Blum v. Yaretsky, 457
U.S. 991, 1004, 102 S. Ct. 2777, 73 L. Ed.2d 534 (1982); Lugar,
supra, and Evans v. Newton, 382 U.S. 296, 299, 301, 86 S. Ct.
486, 15 L. Ed.2d 373 (1966)).
On the other hand, “[t]he doctrine of qualified immunity
protects government officials 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 known.”

Messerschmidt v. Millender, 565 U.S. 535,

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546, 132 S. Ct. 1235, 1244, 182 L. Ed.2d 47 (2012)(quoting
Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L.
Ed.2d 565 (2009)).

“Qualified immunity ‘gives government

officials breathing room to make reasonable but mistaken
judgments,’ and ‘protects all but the plainly incompetent or
those who knowingly violate the law.’” Id,(quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 743, 131 S. Ct. 2074, 2081, 179 L. Ed.2d
1149, 1157 (2011)).

Hence, “qualified immunity may be available

to private actors under certain circumstances where they are, in
effect, acting as government officials.”

Jefferson v. Husain,

Civ. A. No. 14-2485, 2016 U.S. Dist. LEXIS 43382 at *49 (E.D. Pa.
March 31, 2016)(quoting Lang v. Pa. Higher Education Assistant
Agency, 610 Fed. Appx. 158, 163, n. 7 (3d Cir. 2015)).
Having now read and carefully reviewed the record evidence
produced in this case, we cannot find that Defendant Prifti was a
state actor or that he was acting under color of state law when
he took the actions complained of on June 28, 2015.

In this

regard, the testimony of the State Troopers is that after
interviewing Donika Plyku and reviewing the copies of the checks
she gave to her husband, the medical bills addressed to her at
the Garnet Valley address, her monthly Amtrak transpasses, and
her marriage certificate, they believed that she resided at the
Plaintiff’s house.

After listening to Plyku’s conversation with

Kraya and as a result of Cpl. Michaels having had his own

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conversation with Plaintiff, it further appeared that neither
Plaintiff nor Kraya would allow Plyku to enter the property to
retrieve her belongings, despite Cpl. Michaels informing
Plaintiff that Plyku as a resident, had the right to enter her
own residence in any manner that she deemed fit.

Cpl. Michaels

and Trooper Gibson both testified that this was what they told
both Plyku and Prifti – that since it was her home, they were not
going to tell her to not go in to the property, that was up to
her and that she could enter if she wanted to.
Defendant Plyku and Prifti both testified that Prifti had a
conversation with Cpl. Michaels about how to get into the house
and that in the course of that conversation, Cpl. Michaels
suggested that there might be something in the trunk of their
cars that could be used to help them gain access to the house.
Cpl. Michaels said that he suggested that if Plyku wanted to get
into the house, the easiest way is to pry open a window.
Subsequent to that, Prifti went into the trunk of his car,
retrieved a tire iron and threw it through the sliding glass
door, shattering the glass and that was how they gained entry.
As all of the state troopers testified, shattering the sliding
glass door was not what they had expected Prifti to do.
Regardless, there is no evidence on this record that in so acting
and in subsequently entering the property and helping Plyku to
remove property from the residence, Prifti “exercised power

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possessed by virtue of state law” or that his actions were made
possible only because [he] was “clothed with the authority of the
state.”

As we noted in our Memorandum and Order of February 26,

2018, none of the Pennsylvania state trooper defendants searched
or seized any property from Plaintiff’s home and thus we cannot
find that Defendant Prifti was a “willful participant in joint
activity with the State or its agents.”

Nor can we find that by

referencing a tool normally kept in a car trunk and suggesting
that he try to pry open a window, the state troopers coerced,
controlled or significantly controlled Prifti’s activities nor
did they delegate to him a public function.

Prifti at all times

was and remained a private citizen acting at the request of and
behest of another.

He was not a state actor and he can not be

held liable to Plaintiff under Section 1983.3
For these reasons, Defendant Prifti is entitled to the entry
of judgment in his favor as a matter of law on Counts I and II of
Plaintiff’s Second Amended Complaint.

3

An order follows.

In light of our finding that Donald Prifti was not acting as a
government agent or official, we need not reach the issue of his entitlement
to qualified immunity.

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