Perez v. Gamez et al

Filing 62

MEMORANDUM re dft /ganez's MOTION for Judgment on the Pleadings 53 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 02/21/14. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EVER PEREZ,

:
:
Plaintiff
:
:
v.
:
:
CORPORAL RICHARD GAMEZ;
:
OFFICER ANDREW CRONE;
:
BRIAN HUNTER; OFFICERS JOHN :
DOE 1-6; PRESIDENT JUDGE
:
TODD HOOVER; CAROLYN
:
THOMPSON; JUDGE BERNARD
:
COATES, JR.; JUDGE DEBORAH
:
CURCILLO; JASON LAMBRINO;
:
STEVEN MIMM; JOSEPH
:
GAVAZZI; DAUPHIN COUNTY
:
JANE DOES 1-6,
:
:
Defendants
:

Civil No. 1:13-CV-1552

Judge Sylvia H. Rambo

MEMORANDUM
In this Section 1983 civil rights action, Plaintiff sued several individuals
asserting violations of his rights protected by the Fourth and Fourteenth
Amendments, as well as pendent state law claims. Plaintiff alleged that several
police officers, a county sheriff, three judges, a court administrator, three public
defenders, and twelve unidentified individuals were the cause of his being
incarcerated as the unfortunate result of his brother intentionally misrepresenting
himself as Plaintiff during a traffic stop.1 Presently before the court is a motion for
judgment on the pleadings filed by the arresting officer (Doc. 53), wherein he
contends that he had probable cause to file charges against Plaintiff and is entitled to

By separate memoranda and orders, the court has dismissed Defendants Hunter,
Lambrino, Mimm, and Gavazzi (Doc. 47), Defendants Hoover, Thompson, Coates, and Curcillo (Doc.
50), and Defendant Crone (Doc. 52). Thus, Defendant Gamez is the only remaining named defendant in
this action.
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qualified immunity, and is therefore entitled to judgment in his favor.2 (Doc. 58.)
For the following reasons, Defendant’s motion will be denied.
I.

Background
As in a Rule 12(b)(6) motion, the court is limited in its review under

Rule 12(c) to a few basic documents: the complaint, exhibits attached to the
complaint, matters of public record, and undisputed authentic documents if the
plaintiff’s claims are based upon those documents. See Pension Benefit Guar. Corp.
v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). The standards
governing Rule 12(c) motions are the same ones that govern motions to dismiss
under Rule 12(b)(6). Allah v. Hayman, 442 F. App’x 632, 635 (3d Cir. 2011) (citing
Spruill v. Gillis, 372 F.3d 218, 223 n. 2 (3d Cir. 2004)). Thus, the court must view
the facts and the inferences to be drawn therefrom in the light most favorable to the
nonmoving party. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir. 2005).
A.

Facts

At the time relevant to the instant action, Plaintiff, Ever Uribe Perez
Velazquez, was 27 years old, and approximately five feet and a half-inch tall. (Doc.
7, ¶¶ 17-20; see also Doc. 3-1.) Plaintiff’s brother, Jose Luis Perez Velazquez
(“Jose”),3 was 21 years old4 and approximately five feet and seven inches tall. (Doc.
Defendant also argues that he is entitled to judgment in his favor on the pendent state law
claim asserted at Count III of the amended complaint. (Doc. 58, pp. 23 of 28.) In response, Plaintiff
abandons his state law claims against Defendant Gamez. (Doc. 60, p. 3 n. 1 of 11.)
2

For ease of reference, the court refers to Plaintiff’s brother as “Jose.” Such use of a more
familiar name is intended solely to avoid confusion between Plaintiff and his brother. No disrespect is
intended to Plaintiff’s brother by the use of this name convention.
3

Jose was 21 years old at the time of the events providing the basis for Plaintiff’s claims,
i.e., Plaintiff’s arrest and subsequent detention beginning on June 11, 2011. The court notes that at the
(continued...)
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2

7, ¶¶ 31, 32.) Both Plaintiff and Jose are Hispanic and citizens of Mexico (Id. at ¶¶
17, 21, 31), and, while Plaintiff “understands some English” but speaks only Spanish
(Id. at ¶ 22), Jose speaks some English (Id. at ¶ 33). Defendant, Richard Gamez, is a
corporal employed by the Pennsylvania State Police. (Id. at ¶ 5; Doc. 24, ¶ 5.)
The facts giving rise to the claims against Defendant ensue from the
stop of Jose’s operating Plaintiff’s vehicle, a burgundy 1998 Ford Windstar minivan,
on November 19, 2010 at approximately 9:30 p.m. within the Middle District of
Pennsylvania. (See Doc. 7, ¶¶ 35, 36; Doc. 3-3; Doc. 24, ¶ 36.) According to
Defendant’s affidavit of probable cause, he initiated the traffic stop due to his
observing the vehicle traveling fifteen miles per hour over the speed limit, swerving,
crossing the white fog line on three occasions, and nearly striking the westside
guardrail. (Doc. 3-3, p. 6 of 6.) Jose identified himself as Plaintiff by giving
Plaintiff’s Mexican passport, which was in the glovebox, to Defendant. (Doc. 7, ¶¶
38, 39.) During the encounter, Defendant observed several indicia of intoxication,
and, after Jose failed a portable breath test, Defendant arrested him for driving under
the influence of alcohol, and drove him to the Harrisburg Hospital for a blood test,
the results of which confirmed that Jose’s blood alcohol content was in excess of the
legal limit. (Id. at ¶¶ 40, 41; Doc. 3-3, p. 6 of 6.) Defendant released Jose from
custody after photographing him and informing him that he would receive a
summons to appear in court. (Doc. 7, ¶¶ 42, 43.) Because Jose produced Plaintiff’s
passport as his only form of identification, Defendant released Jose believing him to
be Plaintiff. (Id. at ¶ 39; see also Doc. 3-3, p. 6 of 6.)
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(...continued)
time of the underlying event, i.e., the date Jose was stopped by Corporal Gamez and had a blood alcohol
level of .081% on November 19, 2010, Jose was only 20 years old.
3

On November 30, 2010, Defendant filed a police criminal complaint
charging Plaintiff with six counts related to the November 19, 2010 incident. (See
Doc. 7, ¶ 44; see also Doc. 3-3.) In the affidavit of probable cause, Defendant
recounted the events giving rise to the stop and stated that “[t]he defendant was
identified by his International ID as Ever URIVE [sic] PEREZ, DOB: [redacted as
submitted].” (Doc. 3-3, p. 6 of 6.) On December 1, 2010, Magisterial District Judge
Gregory D. Johnson issued a summons for Plaintiff to appear for a preliminary
hearing scheduled for February 7, 2011. (Doc. 7, ¶¶ 49, 53.) Plaintiff alleges he did
not receive either summons, and, consequently, failed to appear. (Id. at ¶¶ 50, 54.)
Due to Plaintiff’s failure to appear, a bench warrant was issued for
Plaintiff’s arrest. (Doc. 3-4, p. 1 of 5.) On June 11, 2011, at approximately 11:00
a.m., Middletown Police Officer Andrew Crone stopped Plaintiff, who was operating
his burgundy 1998 Ford Windstar minivan in the Middle District of Pennsylvania,
for speeding. (Doc. 7, ¶ 60.) Plaintiff provided Officer Crone with several
documents, including his passport. (Id. at ¶ 62.) After discovering the outstanding
bench warrant, Officer Crone effectuated Plaintiff’s arrest with the assistance of
several other law enforcement officers. (Id. at ¶ 64.) Due to a series of
continuances, Plaintiff was held at Dauphin County Prison until October 18, 2011, at
which time a hearing before Dauphin County Court of Common Pleas Judge
Deborah E. Curcillo was held. (Id. at ¶¶ 105-06.) During this hearing, Defendant
compared a photograph of the individual taken at Harrisburg Hospital on the night of
the incident to Plaintiff and realized that Plaintiff was not the individual whom he
pulled over on November 19, 2010. (Id. at ¶ 107; Doc. 3-7, p. 2 of 4.) The
prosecutor agreed to amend the information to reflect the name of the individual who
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was actually driving, Jose, and to release Plaintiff. (Doc. 3-7, p. 2 of 4.) Plaintiff
was released from custody on October 18, 2011. (Doc. 7, ¶ 108.)
B.

Procedural History

Plaintiff initiated this action on June 10, 2013, and filed his first
amended complaint on June 28, 2013. (Doc. 7.) In his amended complaint, Plaintiff
asserted several constitutional claims, pursuant to 42 U.S.C. § 1983, and named ten
defendants, including two law enforcement officers, a county sheriff, three state
judges, a court administrator, and three public defenders, in addition to twelve
unidentified “Jane” or “John” Doe individuals. (Id.) Relevant to the instant motion,
Plaintiff claimed that Defendant’s naming Plaintiff in his affidavit of probable cause
was made with a reckless disregard for the truth (Id. at ¶ 138) and resulted in an
unlawful seizure and malicious prosecution under Pennsylvania state law (Id. at ¶¶
135-148). Defendant filed his answer on August 26, 2013. (Doc. 24.)
On December 16, 2013, Defendant filed the instant motion for judgment
on the pleadings (Doc. 53), followed by a brief in support on January 10, 2014 (Doc.
58), to which Plaintiff filed a brief in opposition on January 24, 2014 (Doc. 60). On
February 7, 2014, Defendant filed his reply. (Doc. 61.) Thus, the matter has been
fully briefed and is ripe for consideration.
II.

Legal Standard
Federal Rule of Civil Procedure 12(c) permits a party to move for

judgment on the pleadings “after the pleadings are closed – but early enough not to
delay trial.” Fed. R. Civ. P. 12(c). Judgment on the pleadings is appropriate if the
movant clearly establishes that there are no material issues of fact and that he is
entitled to judgment as a matter of law. Rosenau v. Unifund Corp., 539 F.3d 218,
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221 (3d Cir. 2008). In analyzing a Rule 12(c) motion, a court applies the same legal
standards as applicable to a motion filed pursuant to Rule 12(b)(6), Turbe v.
Government of V.I., 938 F.2d 427, 428 (3d Cir. 1991); Bangura v. City of Phila., 338
F. App’x 261, 264 (3d Cir. 2009), and must view the facts and the inferences to be
drawn therefrom in the light most favorable to the nonmoving party. Morris v. West
Manheim Twp., Civ. No. 12-cv-1647, 2014 WL 582265, *2 (M.D. Pa. Feb. 14, 2014)
(citing Sikirica, 416 F.3d at 220).
Accordingly, a complaint will survive a motion under Rule 12(c) only if
it states “sufficient factual matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Third Circuit, following
Twombly and Iqbal, has held that Rule 8(a) “requires not merely a short and plain
statement, but instead mandates a statement showing that the pleader is entitled to
relief.” Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). As in a
Rule 12(b)(6) motion, the court is limited in its review under Rule 12(c) to a few
basic documents: the complaint, exhibits attached to the complaint, matters of public
record, and undisputedly authentic documents if the complainant’s claims are based
upon those documents. See Pension Benefit, 998 F.2d at 1196.
III.

Discussion
As Plaintiff brings his claims against Defendant pursuant to Section

1983, the court will briefly address the law as it pertains to that statute. Section 1983
offers private citizens a means to redress violations of federal law committed by state
officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
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the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding
for redress.
Id. “Section 1983 is not a source of substantive rights, but merely a method to
vindicate violations of federal law committed by state actors.” Pappas v. City of
Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe,
536 U.S. 273, 284-85 (2002)). To establish a claim under this section, a plaintiff
must demonstrate that: (1) the conduct complained of was committed by persons
acting under color of state law; and (2) the conduct violated a right, privilege, or
immunity secured by the Constitution or laws of the United States. Harvey v. Plains
Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487
U.S. 42, 48 (1988)).
The Fourth Amendment provides the right to be free from unreasonable
seizures, a right that an arresting officer violates when the officer arrests a person
without probable cause. See Hanks v. County of Delaware, 518 F. Supp. 2d 642, 648
(E.D. Pa. 2007) (citing Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988)).
Probable cause exists when the facts and circumstances within an arresting officer’s
knowledge are sufficient to warrant a reasonable person to believe that an offense
has been or is being committed by the person to be arrested. Orsatti v. N.J. State
Police, 71 F.3d 480, 483 (3d Cir. 1995).
Plaintiff contends that he was arrested without probable cause in
violation of his Fourth Amendment right to be free from unreasonable seizure. He
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acknowledges that he was arrested pursuant to a warrant, but claims that the warrant
was not supported by probable cause. The statements Defendant gave to Magisterial
District Judge Johnson clearly established probable cause. Indeed, Defendant swore
that, following a traffic stop for the driver’s erratic operation of a motor vehicle, he
observed several indicia of intoxication and subsequently confirmed his suspicion
that the driver was operating the motor vehicle while intoxicated. (Doc. 3-3, p. 6 of
6.) Additionally, Defendant identified Plaintiff as the actor based on the
international identification provided to him. (Id.)
In light of these facts, the only way Plaintiff can succeed is if he
proffers evidence that Defendant recklessly disregarded the truth in his affidavit of
probable cause and that the affidavit based on what Defendant should have told the
Magisterial District Judge would have lacked probable cause for a summons to issue
for Plaintiff’s appearance. Indeed, neither Plaintiff nor Defendant contest that a
plaintiff may succeed in a Section 1983 action for false arrest made pursuant to a
warrant if the plaintiff shows, by a preponderance of the evidence: (1) that the police
officer “knowingly and deliberately, or with a reckless disregard for the truth, made
false statements or omissions that create a falsehood”; and (2) that such statements or
omissions are material, or necessary, for the finding of probable cause.” Sherwood v.
Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997) (emphasis supplied). Probable cause
exists if there is a “fair probability” that the person committed the crime at issue. See
Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000). “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.” Id.
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Here, there is no allegation that Defendant deliberately withheld
exculpatory evidence or knowingly misidentified Plaintiff as the individual he
arrested on November 19, 2010. To the contrary, Plaintiff characterizes Defendant’s
identification of Plaintiff as “reckless” because “any reasonably prudent officer
would have recognized that the drunk driver he had just stopped was not the same
person depicted in the identification that the driver presented during the traffic stop,”
especially “in an age of rampant identity theft.” (Doc. 60, p. 4 of 11.) Defendant
responds that Jose’s intentional misrepresentation was sufficient to establish
probable cause that the identified party was the offender. While the court agrees that
an identification based on an accepted form of identification may be, without more,
sufficient to establish probable cause, this qualified precept cannot be rendered
absolute.
At this juncture, the court is unprepared to grant judgment in
Defendant’s favor. Although the court cannot conclude that Defendant acted
unreasonably in accepting Plaintiff’s international identification for that of Jose on
November 19, 2010, it also cannot conclude that Defendant acted reasonably. The
court has not had the luxury of comparing the physical appearances of Plaintiff and
Jose5 to assess the reasonableness of Defendant’s reliance on Plaintiff’s passport.
Indeed, drawing all reasonable inferences in Plaintiff’s favor, the transcript from
October 18, 2011 hearing may support a finding that Jose and Plaintiff look
significantly different, considering Defendant’s concession, upon comparing the
November 19, 2010 photographs to Plaintiff’s physical appearance, that the

As noted by Defendant, Plaintiff attaches to his complaint a copy of his passport that was
issued in 2012, over a year after the incident. (See Doc. 3-1.)
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individual whom he photographed at the hospital (Jose) was not the person standing
before him in court (Plaintiff). Thus, the pleadings do not clearly establish that
Defendant’s accepting the identification proffered by Jose was reasonable.
It is for the same reason the court cannot definitively conclude that
Defendant is entitled to qualified immunity. Defendant bears the burden of
establishing entitlement to qualified immunity. See Campbell v. Moore, 92 F. App’x
29, 33 (3d Cir. 2004) (citing Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n. 15 (3d
Cir. 2001)). In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court established
a two-part test to determine whether a defendant can be shielded by qualified
immunity. First, the court considers whether, “[t]aken in the light most favorable to
the party asserting the injury, . . . the facts alleged show the officer’s conduct
violated a constitutional right[.]” Id. at 201. If the facts read in the light most
favorable to the plaintiff show a violation of a constitutional right, the court must ask
“whether the right was clearly established . . . in light of the specific context of the
case.” Id. A right is clearly established if “it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.” Id. at 202. “A
defendant police officer will not be immune if, on an objective basis, it is obvious
that no reasonably competent officer would have concluded that a warrant should
issue.” Reedy v. Evanson, 615 F.3d 197, 224 (3d Cir. 2010).
Viewing the allegations in the light most favorable to Plaintiff, “no
reasonably competent officer would have concluded that a warrant should issue” for
Plaintiff based on Jose’s giving Defendant a passport containing a photograph that
did not look like the individual standing before Defendant on November 19, 2010.

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(See Doc. 7, ¶ 34 (“[Plaintiff] and Jose do not look alike.”).) Accordingly, the court
cannot conclude that Defendant is entitled to qualified immunity.
To be clear, the court’s denial of Defendant’s motion for judgment on
the pleadings on qualified immunity grounds is solely that it is not definitively
warranted at this early stage in this case. Qualified immunity remains an available
defense, though its applicability cannot be conclusively determined until, at the
earliest, the court has the benefit of considering a more developed factual record.
IV.

Conclusion
Based on the foregoing reasons, the court cannot conclude that, when

viewed in the light most favorable to Plaintiff, Defendant’s reliance on the
identification produced by Jose was reasonable and established probable cause that
Plaintiff was the individual arrested for operating a motor vehicle while under the
influence of alcohol on November 19, 2010. Accordingly, the court cannot
determine whether Defendant acted with a reckless disregard when he filed charges
against Plaintiff and will deny Defendant’s motion for judgment on the pleadings on
that basis. Furthermore, based on the allegations contained in the complaint, the
court cannot unequivocally conclude that Defendant’s reliance on the identification
produced by Jose was reasonable. Thus, the court will, at this time, deny
Defendant’s motion for judgment on the pleadings on that basis.
An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: February 21, 2014.

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