CHERKAS v. WHITE et al
MEMORANDUM OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 4/13/2018. 4/16/2018 ENTERED AND COPIES E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
P/O SYLVESTER WHITE AND P/O
Plaintiff Robert Cherkas was arrested for allegedly driving while intoxicated. After the
Commonwealth of Pennsylvania withdrew its criminal charges, Plaintiff initiated this lawsuit
against Police Officers Sylvester White and James Tokinson. Plaintiff sued Defendants for false
arrest under the Fourth Amendment (Count I), “improper search and seizure” under the Fourth
Amendment (Count II), assault (Count III), battery (Count IV), intentional infliction of
emotional distress (Count V), malicious prosecution (Count VI), and false imprisonment (Count
VII). Defendants now move for summary judgment, which shall be granted in part and denied in
Plaintiff was arrested after he illegally parked his car. Plaintiff, driving on a two-way
street, pulled across the oncoming lane of traffic and into a parallel parking spot facing the
opposite direction. He parked his car at an angle over the sidewalk, though the parties dispute
whether both or only one front tire was on the sidewalk. Plaintiff then left his car to buy a jacket
from a street vendor. He returned and entered his car. Officer White then approached him.
Officer White asked Plaintiff to place his vehicle in park. He noted that Plaintiff’s eyes
were bloodshot (though the parties dispute the degree to which they were bloodshot), and he told
Plaintiff that he believed that Plaintiff was “stoned on something” or drunk. Plaintiff talked to
Officer White loudly, though Plaintiff claims he raised his voice only after he was accused by
Officer White of being intoxicated. Officer White, on the other hand, claims that Plaintiff was
loud before he made that accusation. Plaintiff also told Officer White that he was a TV and
YouTube celebrity. Plaintiff recalled having not slept for a while and that he may have told
Officer White that he had not slept.
After Plaintiff’s arrest, he was taken to the police station, spending approximately 24 to
48 hours there.1 A nurse drew his blood for testing. After his tests came back negative for any
substances, the Commonwealth dropped its criminal charges against him.
Summary judgment must be granted to a moving party if “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 Alabama v. North Carolina, 560 U.S. 330, 344 (2010). Material facts are
determined by reference to the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A genuine dispute “exists if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.” See U.S. ex rel. Greenfield v. Medco Health Solutions, Inc.,
880 F.3d 89, 93 (3d Cir. 2018). The non-moving party must show where in the record evidence
a genuine dispute exists and not merely deny the moving party’s pleadings. See id. Summary
judgment will be granted “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986).
Plaintiff claims that he was placed into a police car and handcuffed and that the handcuffs were so tight that they
caused him pain.
A. False Arrest, False Imprisonment & Malicious Prosecution Claims
Plaintiff’s Section 1983 claims for false arrest, false imprisonment, and malicious
prosecution are addressed together, as each claim requires him to establish the absence of
probable cause. See James v. City of Wilkes-Barre, 700 F.3d 675, 680, 682-83 (3d Cir. 2012)
(false arrest); Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) (false
imprisonment); Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en banc) (malicious
prosecution).2 Plaintiff’s state law claims for false arrest, malicious prosecution, and false
imprisonment, similarly require a showing of probable cause. See Manley v. Fitzgerald, 997
A.2d 1235, 1241 (Pa. Commw. 2010) (false arrest and false imprisonment); Kelley v. Gen.
Teamsters, Chauffeurs, & Helpers, Local Union 249, 544 A.2d 940, 941 (Pa. 1988) (malicious
prosecution). The probable cause analysis for the state-law claims is the same as that for the
federal claims. See Russoli v. Salisbury Twp., 126 F. Supp.2d 821, 869 (E.D. Pa. 2000)
(“Pennsylvania state law false arrest claims and federal constitutional false arrest claims are coextensive both as to the elements of proof and elements of damages.”). Thus, the probable cause
inquiry as to Plaintiff’s false arrest, false imprisonment, and malicious prosecution claims –
whether styled as state or federal – will be identical.
The question of whether there is probable cause is answered by reviewing the “totality of
the circumstances.” See District of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018). The analysis
The brief detention of Plaintiff subsequent to his arrest follows from “the need to take the administrative steps
incident to arrest.” See Gerstein v. Pugh, 420 U.S. 103, 114 (1975). So, Plaintiff’s claim of “false imprisonment”
subsequent to his arrest is subject to the same analysis as his arrest. See id. at 120 (for pretrial detention, “the
standard is the same as that for arrest.”); see also Wallace v. Kato, 549 U.S. 384, 388-89 (2007) (“False arrest and
false imprisonment overlap; the former is a species of the latter”); Manuel v. City of Joliet, 137 S. Ct. 911, 918
(2017) (“The Fourth Amendment prohibits government officials from detaining a person in the absence of probable
cause [which] can happen when the police hold someone without any reason before the formal onset of a criminal
turns on evaluating “the events leading up to the arrest” and then deciding “whether these
historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to
probable cause.” Id. (internal citations omitted).
Here, the officer was confronted with an illegally parked vehicle that had pulled across
oncoming traffic to fit into a space at an angle, facing the wrong way. The car’s front tire was
(or both were) on the sidewalk. Upon confronting the driver of the car when he returned from
purchasing a jacket the officer noted that the driver’s eyes were watery and bloodshot. Officer
White also stated to the driver that he appeared “stoned” or drunk. Plaintiff raised his voice
during the conversation and claimed to be an internet and television celebrity. A reasonable
police officer could infer from these circumstances that Plaintiff had been driving while
intoxicated or under the influence of other substances.
Plaintiff fails to create a genuine dispute as to any of these material facts. Plaintiff takes
issue with the degree to which the car was parked on the sidewalk, suggesting that only one tire
was on the sidewalk. But given that the car was parked facing oncoming traffic, at an angle in a
parallel parking spot, and undisputedly on the sidewalk, the degree to which the tires were on the
sidewalk is immaterial. And while Plaintiff adds that the degree to which his eyes were
bloodshot is debatable, he does not dispute that his eyes were bloodshot. Similarly, Plaintiff
claims he only became loud after he was told that he might be drunk or high, but that does not
negate Officer White’s observation that his was loud.3
Because facts material to the issue of probable cause are ultimately not in dispute,
summary judgment in favor of Defendants is appropriate as to Plaintiff’s federal and state-law
claims predicated upon his arrest, detention, and prosecution. See Montgomery v. De Simone,
Plaintiff’s briefing also seems to suggest that he was loud after Officer White began “mocking” him. Again, as
noted, this does not negate Officer White’s observations suggesting Plaintiff was intoxicated.
159 F.3d 120, 124 (3d Cir. 1998) (according to the Third Circuit, “the question of probable cause
in a section 1983 damage suit is one for the jury,” but summary judgment is appropriate where “a
reasonable jury could not find a lack of probable cause for Montgomery’s stop and arrest.”);
Kelley v. Gen. Teamsters, Chauffeurs, & Helpers, Local Union 249, 544 A.2d 940, 941 (Pa.
1988) (in Pennsylvania, “Usually, the existence of probable cause is a question of law for the
court rather than a jury question, but may be submitted to the jury when facts material to the
issue of probable cause are in controversy.”).4
B. Search and Seizure
Defendants are entitled to summary judgment on Plaintiff’s Fourth Amendment search
claims because Plaintiff consented to the search at issue. While a blood draw is a “search” under
Fourth Amendment jurisprudence, it is legal when proper, voluntary consent is given. See
Birchfield v. North Dakota, 136 S.Ct. 2160, 2173 & 2187 (2016). Here, Defendants annexed to
their supplemental brief the forms signed by the Plaintiff showing his consent to the search.
Accordingly, summary judgment shall be granted on Plaintiff’s improper search claims.
C. Assault & Battery
Plaintiff’s assault and battery claim fails for the same reason his search claim fails.
According to Pennsylvania law, “[a]ssault is an intentional attempt by force to do an injury to the
person of another, and a battery is committed whenever the violence menaced in an assault is
actually done, though in ever so small a degree, upon the person.” See Renk v. City of
Pittsburgh, 641 A.2d 289, 293 (Pa. 1994). A battery does not occur, however, if there is consent.
See Cooper ex rel. Cooper v. Lankenau Hosp., 51 A.3d 183, 191 (Pa. 2012). Here, Plaintiff’s
“[The] conclusion that the officers had probable cause to arrest [Plaintiff] is sufficient to resolve this case.” Wesby,
138 S. Ct. at 589. Nevertheless, even if no probable cause existed, Defendants are entitled to qualified immunity
because they might have “reasonably but mistakenly” believed that probable cause existed for Plaintiff’s arrest,
detention, and prosecution. See id. at 591.
express consent forms show that he consented to the blood draw, and Plaintiff does not point to
evidence that would create a genuine dispute about his consent. Thus, summary judgment shall
be granted on Plaintiff’s assault and battery claim.
D. Intentional Infliction of Emotional Distress
Defendants contend that Plaintiff’s claim for intentional infliction of emotional distress
fails as a matter of law because he presents no expert evidence or medical proof of injury. See
Tuman v. Genesis Assocs., 935 F. Supp. 1375, 1393 (E.D. Pa. 1996) (granting summary
judgment for emotional distress claim because plaintiffs did not offer “expert medical
confirmation that they actually suffered the claimed distress”) (citing Kazatsky v. King David
Mem’l Park, Inc., 527 A.2d 988, 995 (Pa. 1987)). Plaintiff’s opposition to Defendants’ motion
does not address his intentional infliction of emotional distress claim. Thus, summary judgment
shall be granted. See Sang Geoul Lee v. Won Il Park, MD, --- F. App’x ---, 2017 WL 6508840 at
*2 (“[I]t is the responsibility of neither the District Court nor this Court to make the parties’
arguments for them; therefore, we will not engage in a freewheeling investigation into . . . state
law without meaningful briefing on the subject.”).
An appropriate order follows.
BY THE COURT:
/s/Wendy Beetlestone, J.
WENDY BEETLESTONE, J.
April 13, 2018
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?