BERRY v. KABACINSKI et al
Filing
57
MEMORANDUM OPINION (Order to follow as separate docket entry) re 44 MOTION to Strike 38 Brief in Opposition to Motion for Summary Judgment, 39 Answer to Statement of Facts filed by Matthew Kabacinski, 32 MOTION for Summary Judgment filed by Matthew Kabacinski. Signed by Magistrate Judge Martin C. Carlson on July 12, 2016. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEVEN BERRY,
:
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:
:
:
:
:
:
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Plaintiff
v.
MATTHEW KABACINSKI,
Defendant
Civil No. 1:15-CV-169
(Magistrate Judge Carlson)
MEMORANDUM OPINION
I.
INTRODUCTION
This is an action brought by Steven Berry against Matthew Kabacinski, a
Pennsylvania State Trooper, for malicious prosecution, false arrest, and false
imprisonment, all relating to Kabacinski’s 2013 investigation into a complaint by
Berry’s ex-wife who alleged that he had violated a Protection from Abuse (“PFA”)
Order that had been entered against him. Kabacinski became involved in this
matter on May 10, 2013, after he had been dispatched to the home of Joan Berry,
whom he did not know, and was told by her that Steven Berry had violated the
PFA after he sent her numerous text messages and approached her and physically
contacted her at an event at their children’s school. Kabacinski took down the
information that Ms. Berry provided, and later determined that Steven Berry had
1
previously pled guilty just two months earlier to violating a previous PFA Order.
Kabacinski relayed the information that he had to the York County Assistant
District Attorney, who in turn authorized the filing of charges against Berry for
stalking, harassment and violation of the PFA Order.
Berry was arrested on May 10 and transported to detention at York County
Prison, not by Kabacinski but by other officers who are not named in this
litigation.1 Berry was later brought before a Magisterial District Judge who held a
preliminary hearing at which Joan Berry and Trooper Kabacinski testified.
Following this hearing, the Magisterial District Judge found that there was
probable cause to support the charges, and bound the plaintiff over for trial.
Following this proceeding, Berry sought habeas corpus relief before the York
County Court of Common Pleas, which denied the request following a hearing.
1
According to Berry, he was never given an opportunity to make bail on the new
charges. Although Berry was questioned during a deposition about whether he was
being held for violating the terms of his probationary sentence, he attested that he
was jailed on the new charges alone. This dispute is not entirely cleared up in the
parties’ briefs or supporting papers. Although it is initially concerning that Mr.
Berry believes that he was held without bail, or even a bail consideration, for
nearly one full year while the new charges were eventually brought to trial or later
resolved, whether or not Mr. Berry received appropriate bail consideration is not a
matter before the Court in this action. We note simply some degree of confusion
appears to surround this issue, although there is no apparent dispute that Mr. Berry
was initially seen by a Magisterial District Judge and a Common Pleas Court Judge
during which he challenged the validity of the charges. We note that there is no
indication in the transcript that either party raised the issue of bail during the
preliminary hearing before the Magisterial District Judge. (Doc. 33, Ex. 6.)
2
Before his trial on the charges, the plaintiff spent nearly one year in jail,
during which time both his brother and mother died, and he suffered significant
financial hardships, including the foreclosure of his home in Baltimore. He was
eventually brought to trial, after which he was acquitted of stalking and
harassment. The charge for violating the PFA Order was continued after Berry
agreed to undergo a drug and alcohol evaluation and a mental health assessment
and after he agreed to the entry of another PFA Order. The charge for violating the
PFA Order was withdrawn after Berry successfully completed these evaluations,
and after entry of the new PFA Order.
Berry brought this action by filing a complaint in the United States District
Court for the Eastern District of Pennsylvania on December 11, 2014. (Doc. 1.)
The case was subsequently transferred to this Court on January 26, 2015. (Doc. 7.)
The defendant answered the complaint on April 17, 2015. (Doc. 14.) Berry filed
an amended complaint on May 26, 2015.
(Doc. 24.)
Defendant Kabacinski
answered the new pleading on June 4, 2015. (Doc. 26.) Thereafter the parties
consented to proceed before the undersigned (Doc. 27.), and engaged in a period of
discovery into Berry’s claims. On January 21, 2016, the defendant moved for
summary judgment on all of the plaintiff’s claims, arguing that the plaintiff lacks
factual support for his legal claims, and asserting that he is entitled to qualified
immunity on the undisputed facts surrounding Berry’s arrest and prosecution.
3
(Doc. 32.) The motion is now fully briefed and ripe for disposition, and for the
following reasons the motion will be granted.2
II.
BACKGROUND
Steven Berry married Joan on July 11, 2011. The couple has two daughters,
and their marriage ended in divorce in 2014. (Def. SMF ¶¶ 7-9.) The marriage
The parties’ briefing has been marked by some dispute, most notably by the
defendant’s motion to strike the plaintiff’s response to the defendant’s statement of
undisputed material facts (“Def. SMF”). (Doc. 44.) The defendant charges that the
plaintiff has peppered his responsive statement with impermissible explanations
and reference to material that was never disclosed during discovery, or other
material that does not bear upon the truthfulness of the factual assertions that have
been made. We do not find it necessary to strike the plaintiff’s counterstatement,
and will deny this motion to strike, although the defendant’s explanation and
argument regarding what the plaintiff has offered in an effort to dispute factual
assertions is helpful to evaluating the pending motion for summary judgment. In
the end, the Court agrees that much of what Berry would have the Court rely upon
to find disputed issues of fact are really efforts at misdirection, because they do not
speak to the relevant issue of what Kabacinski did and learned as part of his
investigation, or what he was told by Joan Berry, or what actually transpired during
the multiple legal proceedings that followed the filing of charges against Steven
Berry and his eventual arrest and prosecution. However, because striking a
pleading is viewed as a drastic remedy, such motions are “generally disfavored.”
Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1057 (5th Cir. 1982). As one court has aptly observed: “striking a party's
pleadings is an extreme measure, and, as a result, . . . ‘[m]otions to strike under
Fed .R.Civ.P. 12(f) are viewed with disfavor and are infrequently granted.’
Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.1977) (citing 5 Wright &
Miller, Federal Practice and Procedure. Civil § 1380 at 783 (1969)). See also
Resolution Trust Corp. v. Gibson, 829 F.Supp. 1103, 1106 (W.D.Mo.1993); 2
James Wm. Moore et al., Moore's Federal Practice § 12.37[1] (3d ed. 2000).”
Stanbury Law Firm v. I.R.S.,221 F.3d 1059, 1063 (8th Cir. 2000). In practice,
courts should exercise this discretion and strike pleadings only when those
pleadings are both “redundant, immaterial, impertinent, or scandalous” and
prejudicial to the opposing party. Ruby v. Davis Foods, Inc. , 269 F.3d 818, 820
(7th Cir. 2001). Therefore, we will deny this motion to strike. (Doc. 44.)
4
2
was fractious, and the parties’ each sought PFA Orders against the other. In March
2013, Steven Berry pled guilty to four counts of violating a PFA Order and, as a
result, received a sentence of 18 months’ probation. (Id. ¶¶10-12; Ex. 4.)
On May 10, 2013, Trooper Kabacinski was dispatched to Joan Berry’s
home. (Id. ¶ 13.) Prior to this encounter, Kabacinski had never met Joan Berry.
Upon his arrival, Joan Berry told Kabacinski that she wanted to report a PFA
violation. (Id. ¶¶ 15-16.) As part of her statement, Ms. Berry told Kabacinski that
she had received multiple text messages from Steven Berry. (Id. ¶ 17.) She also
told Kabacinski that her ex-husband had been convicted of violating prior PFA
orders. (Id. ¶ 18-19.) According to Kabacinski, he also learned that Steven Berry
was not to attend an event at the school where one of the couple’s daughters was a
student because Joan Berry was to be present at the May 9, 2013 event as well.
(Id.) Berry told Kabacinski that Steven Berry attended the event despite the PFA
order, and that while there he tapped her on the shoulder and handed her flowers. 3
(Id. ¶ 21.)
3
Berry seeks to interject a number of other facts that he alleges are true, although
his support for those facts is somewhat unclear in the record he has made.
Regardless of the veracity of these facts – including the assertion that Joan Berry
was herself a violent person, who had PFA orders entered against her for hitting
Steven Berry with a frying pan and chasing him with a brick, or that she was
vindictive and untrustworthy – they ultimately are not relevant to determining
whether there is any dispute in the record about what Joan Berry actually told
Trooper Kabacinski. Steven Berry concedes that he was not present at the time of
Kabacinski’s interview with Joan Berry, and he has not developed any other
5
After his meeting with Joan Berry concluded, Kabacinski returned to his
station to complete a report and to look up information on Steven Berry. (Id. ¶ 23.)
During this part of his investigation, Kabacinski confirmed that Berry had a
criminal record for prior PFA violations, and also confirmed that there was an
extant PFA Order that prohibited Berry from coming into contact with Joan, except
to facilitate visitation of the couple’s children. (Id. ¶ 24.)
Having received Joan Berry’s report, and having confirmed that Berry had
previously violated PFA Orders, and that he was currently the subject of a PFA
Order that substantially restricted his ability to contact or be around Joan Berry,
Kabacinski contacted the York County District Attorney’s Office and after
relaying the information that he had obtained, was advised by an Assistant District
Attorney to file charges of stalking, harassment and violating the PFA Order that
had been entered against him. (Id. ¶ 25.) Kabacinski did as authorized and
directed by the prosecutor’s office. (Id. ¶ 26.) These charges filed were based in
part on the fact that the plaintiff had texted Joan Berry six times and also that he
had “contacted the victim in person following conviction for PFA violation.” (Id. ¶
evidence to dispute what Kabacinski attested Joan Berry told him when he met her
in response to her complaint. We are not disputing the truth of what Steven Berry
alleges about Joan Berry, and her own prior violent outbursts. To the extent it is
true, which we presume for purposes of resolving the pending motion, it does in
fact seem to be something that could be relevant to her own motivations or
tendency for truthfulness. However, these facts, even if true, do not create a triable
issue of fact as to what Joan Berry actually told to Kabacinski during their meeting
to discuss her complaint.
6
27, quoting Criminal Charges, Ex. 5.) After he filed the charges, Kabacinski
clocked out of work at 3:00 PM on May 10, 2013. (Id. ¶ 28.) Steven Berry was
arrested later that same day – but not by Trooper Kabacinski. (Id. ¶¶ 29-30.)
Following his arrest, Berry was transported to detention by Trooper Brooks, who is
not named as a defendant in this action. (Id. ¶ 31.) Because Berry was arrested
while on probation for his prior convictions for violating other PFA orders, Berry
was not afforded the opportunity for a bail hearing. (Id. ¶ 32.)
It was not until July 11, 2013, that Berry had a preliminary hearing on the
charges against him. (Id. ¶ 33.) That hearing was conducted by a Magisterial
District Judge, and Berry was represented by counsel. During the hearing, the
court heard testimony from both Joan Berry and Trooper Kabacinski. Joan Berry
testified that the plaintiff had contacted her by text message, and she testified that
even though she had informed her ex-husband that she was attending the evening
concert and that he should attend the earlier concert during the day, he came to the
evening program anyway. Ms. Berry testified that when the evening performance
had concluded, the plaintiff approached her, tapped her on the shoulder, and
handed her flowers that he had brought for his daughter, telling her to give them to
her. (Id. ¶¶ 34-37.)
Following the hearing, the Magisterial District Judge found on the record
that after hearing about “the flower incident at the school,” the testimony
7
“definitely substantiates one of the charges.” (Id. ¶ 38, and Prel. H’rg. N.T. at 18,
Ex. 6.) The court further stated:
It seems like definitely Mr. Berry is pushing the
envelope, you know. You’re thinking in a position of his
that he’s been told with a PFA no contact you’d very
careful not to cross that line, and it doesn’t appear that
he’s doing that. Definitely again the contact, the physical
contact with the flowers at the school is definitely not
allowed and a violation . . . with having numerous
contacts and knowing that he shouldn’t be doing that and
again the physical contact with the flowers, I’m going to
allow these charges to be bound over for Common Pleas .
. . I think, there’s you know, prima faci[e] evidence to be
able to do that today to bind these over.
(Id. ¶ 39, Prel. Hr’g N.T. at 18-19, Ex. 6.) Thus, based on testimony that it heard,
the court concluded that there existed probable cause to support the charges filed.4
Following the preliminary hearing, in mid-July 2013, the plaintiff filed a
motion for habeas corpus relief. (Def. SMF ¶ 40 and Ex. 7.) The plaintiff drafted
the motion himself, and in the motion acknowledged that he had pled guilty just a
Notably, the Magisterial District Judge appeared to have some concern that some
of the charges had very thin support in the record. (Id.) The court even seemed to
pause somewhat regarding the nature of the text messages, acknowledging that
although he understood that there were six in total he did not have access to the
text messages themselves. In the end, based on the prior conduct and the
testimony, the court found that there was at least “prima facie” evidence to bind the
charges over, but he expressed his optimism that the Commonwealth would be able
to subpoena phone company records so the matter could be reviewed “fairly
easily” by the Court of Common Pleas. (Id.) It appears that the Magisterial
District Judge anticipated that this matter would admit of resolution well before it
did, as in the end Mr. Berry wound up spending nearly a year in prison on two
charges of which he was acquitted, and a third that was withdrawn.
8
4
few months earlier to violating an earlier PFA that had been entered against him.
(Id. ¶ 41 and Ex. 7.) In the petition, Berry admitted that he had been sentenced to
18 months of probation for that violation. (Id. ¶ 41 and Ex. 7.) Nevertheless,
Berry argued that there was no probable cause to support the latest charges, and he
maintained that Joan Berry was lying. (Id. ¶ 43 and Ex. 7.) Judge Gregory M.
Snyder of the York County Court of Common Pleas convened a hearing on the
petition, at which the plaintiff was represented by counsel. (Id. ¶ 44.) During that
hearing, Judge Snyder observed that “we also have the Defendant approaching the
alleged victim, the mother of these children, from behind, tapping her on the
shoulder and handing her flowers.” (Id. ¶ 45 and Ex. 8, Habeas Order at 1-2.)
Based upon this finding, Judge Snyder found:
I think if you take all of those things together, given the
history between these two, if the jury were to believe all
of the evidence presented by the Commonwealth and by
their argument, that would be sufficient to make a prima
facie case . . . . [T]hat’s all we need to bind this case over
for trial . . . . Therefore, we deny the relief requested by
the Defendant in his habeas corpus motion and bind all
counts over for trial.
(Def. SMF ¶ 45 and Ex. 8, Habeas Order at 2.) At this point in the plaintiff’s
criminal proceedings, two separate judicial officers had found, following hearings
and argument, that there existed probable cause to believe that Berry had
committed the violations charged.
9
The plaintiff was tried in the spring of 2014, and on April 1, 2014, he was
acquitted of the stalking and harassment charges. (Def. SMF ¶ 46.) By court
order, the charge for violating the PFA Order was continued pending Berry’s
completion of a drug and alcohol program and mental health evaluation. The same
order also required that Berry would comply with “all recommendations” that
came out of these evaluations, and also provided that Berry would not contest the
entry of a Pennsylvania PFA Order. (Id. ¶ 48 and Ex. 10, Order to Continue.)
Thereafter, the plaintiff successfully completed the drug and alcohol program and a
PFA Order was entered against him, after which the charges for violating the prior
PFA were withdrawn. (Def. SMF ¶¶ 49-51.) According to Berry’s deposition
testimony, what followed an initially hasty and incomplete criminal investigation
resulted in him spending nearly a full year in prison, during which time he suffered
the loss of his mother and brother, and incurred substantial financial costs,
including a home foreclosure, because he was incarcerated.
Thereafter, the plaintiff initiated this action against Trooper Kabacinski,
alleging that he did a shoddy investigation into Joan Berry’s complaint and filed
baseless charges that constituted a malicious prosecution. He also alleges that
Kabacinski is liable for false arrest and false imprisonment, for his role in causing
the charges to be filed against Berry without sufficient probable cause. Berry
maintains that if Kabacinski had conducted a more thorough investigation, which
10
would have revealed numerous instances of Joan Berry’s prior bad conduct and
tendency for mendacity, he would have had reason to doubt her version of the
events that led to the charges being filed.
III.
DISCUSSION
A.
Summary Judgment Standard
The defendants have moved for judgment pursuant to Rule 56(a) of the
Federal Rules of Civil Procedure, which provides that “[t]he court shall grant
summary judgment 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. Rule 56(a). Through summary adjudication a court is empowered to
dispose of those claims that do not present a “genuine dispute as to any material
fact,” Fed. R. Civ. P. 56(a), and for which a trial would be “an empty and
unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F. Supp. 2d
465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material,
and “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is
genuine only if there is a sufficient evidentiary basis that would allow a reasonable
fact finder to return a verdict for the non-moving party. Id. at 248-49.
11
The moving party has the initial burden of identifying evidence that it
believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub.
Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving
party has shown that there is an absence of evidence to support the nonmoving
party’s claims, “the non-moving party must rebut the motion with facts in the
record and cannot rest solely on assertions made in the pleadings, legal
memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d
195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). If the nonmoving party “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 at trial,” summary judgment is appropriate. Celotex, 477 U.S. at
322. Summary judgment is also appropriate if the non-moving party provides
merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249.
There must be more than a scintilla of evidence supporting the nonmoving party
and more than some metaphysical doubt as to the material facts. Id. at 252; see
also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In making this determination, the court must “consider all evidence in the light
most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs.,
486 F.3d 791, 794 (3d Cir. 2007).
12
B.
Trooper Kabacinski is Entitled to Summary Judgment on the
Plaintiff’s Claim for Malicious Prosecution
Berry first alleges that Trooper Kabacinski is liable for malicious
prosecution for his role in conducting an extremely limited investigation into Joan
Berry’s allegations, and the filing of criminal charges against Berry for what the
plaintiff contends was simply a misunderstanding between him and his ex-wife.
Berry notes that Kabacinski did nothing more than to interview, and believe, Joan
Berry’s version of the events, and to determine that Berry had recently been
convicted of violating another PFA, for which he received a probationary sentence
that he was then currently serving. We do not find that Berry has come forward
with evidence to show sufficient disputed issues of material fact exist that could
permit this claim to proceed past summary judgment.
The plaintiff brings his claims for malicious prosecution, false arrest, and
false imprisonment pursuant to 42 U.S.C. § 1983. In order to state a claim under §
1983, “a plaintiff must allege the violation of aright secured by the Constitution
and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” Harvey v. Plaints Twp.
Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487 U.S.
42, 48 (1988)).
13
With respect to the malicious prosecution claim, Berry alleges that Trooper
Kabacinski’s actions violated the plaintiff’s rights under the Fourth Amendment to
the United States Constitution, which provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and now
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. Under the Fourth Amendment, a prosecution undertaken or
arrest made without probable cause is a constitutional violation that may be
redressed under 42 U.S.C. § 1983. See Estate of Smith v. Marasco, 318 F.3d 497,
521 (3d Cir. 2003) (malicious prosecution); Walmsley v. Philadelphia, 872 F.2d
546, 551 (3d Cir. 1989) (citing Patzig v. O’Neill, 577 F.2d 841, 848 (3d Cir. 1978)
(false arrest).
To prove malicious prosecution under § 1983, a plaintiff must establish the
following elements: (1) the defendant initiated a criminal proceeding; (2) the
criminal proceeding ended in the plaintiff’s favor; (3) the proceeding was initiated
without probable cause; (4) the defendants acted maliciously or for a purpose other
than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of
liberty consistent with the concept of seizure as a consequence of a legal
proceeding. Marasco, 318 F.3d at 521.
14
For purposes of the second element, that the criminal proceeding have ended
in the plaintiff’s favor, the Third Circuit Court of Appeals has instructed that for a
malicious prosecution claim to lie, the underlying criminal proceedings must have
entirely terminated in the plaintiff’s favor. Kossler v. Crisanti, 564 F.3d 181, 18687 (3d Cir. 2009). This means that “a malicious prosecution claim cannot be
predicated on an underlying criminal proceeding which terminated in a manner not
indicative of the innocence of the accused.”
Id. at 187; see also Heck v.
Humphrey, 512 U.S. 477, 484 (1994) (holding that the purpose of the favorable
termination rule is to avoid “the possibility of the claimant succeeding in the tort
action after having been convicted in the underlying criminal prosecution, in
contravention of a strong judicial policy against the creation of two conflicting
resolutions arising out of the same or identical transaction.”); Donahue v. Gavin,
280 F.3d 371, 383 (3d Cir. 2002) (holding that a prior criminal case must have
been disposed of in a manner that indicates the innocence of the accused in order to
satisfy the favorable termination element).
This requirement that a plaintiff demonstrate that a prior criminal proceeding
ended in its entirety in a manner that demonstrates his actual innocence of the
charges thus precludes a malicious prosecution claim even where the underlying
proceedings were expunged as part of an accelerated rehabilitative program
(ARD), which the Third Circuit has held is not a favorable termination because
15
such a program “imposes several burdens upon the criminal defendant not
consistent with innocence.” Gilles v. Davis, 427 F.3d 197, 211 (3d Cir. 2005).
Although the Third Circuit has cautioned that it may not be necessary for a
plaintiff to be acquitted of all charges in order to satisfy the favorable termination
element of a malicious prosecution claim, it has also held that a partial acquittal
will not satisfy the favorable termination rule if the acquitted charges arose out of
the same conduct for which the plaintiff was convicted on a different charge.
Kossler, 564 F.3d at 192. This is because when a plaintiff is acquitted of certain
charges but convicted of others arising out of the same general course of conduct,
this disposition does not “indicate the plaintiff’s innocence of the misconduct
underlying the offenses charged.” Id. at 188.
This focus on the entirety of the underlying criminal proceeding, and the
requirement that a plaintiff establish a disposition of the underlying charges in a
way that demonstrates actual innocence, is relevant in this case. The plaintiff was
acquitted of the most serious charges of stalking and harassment, but the charge for
violation of the PFA Order was continued by the prosecutor as part of an
agreement struck with the plaintiff that required him to undergo drug and alcohol
counseling, a mental health evaluation, and to consent to the entry of a new PFA
order against him. There is no question from reviewing the record that all three of
the charges brought against Steven Berry arose out of the same discrete conduct,
16
and indeed the same set of circumstances surrounding his attendance at a school
event, his multiple text messages to Joan Berry, and the claim that he approached
and touched her at that school function. The question is whether the negotiated
withdrawal of the charge for violating the PFA Order indicated that the proceeding
terminated in his favor. We find that it does not.
As an initial matter, the mere fact that a prosecutor elects to withdraw
charges, or seeks the grant of a nolle prosequi as to certain charges, does not in and
of itself satisfy the favorable termination rule.
Donahue, 280 F.3d at 383
(“[W]hile ‘a grant of nolle prosequi can be sufficient to establish the favorable
termination requirement for malicious persecution, not all cases where the
prosecutor abandons criminal charges are considered to have terminated
favorably.’”) (quoting Hilfirty v. Shipman, 91 F.3d 573, 579-80 (3d Cir. 1996)).
Instead, “it is sufficient only when the circumstances ‘indicate the innocence of the
accused.’” Tighe v. Purchase, No. 1:11-CV-224, 2014 WL 3058434, at * (W.D.
Pa. July 7, 2014) (quoting Donahue, 280 F.3d at 383) (emphasis in Tighe). Thus,
for example, a nolle prosequi does not necessarily indicate the innocence of the
accused where a district attorney has entered into a compromise agreement with
the defendant, whereas a nolle prosequi entered when a prosecutor lacks sufficient
evidence would do so. Donahue, 280 F.3d at 383.
17
The Third Circuit has held that a plaintiff’s placement into an ARD program
is not a favorable termination, even though it may result in the expungement of the
plaintiff’s arrest record, because “the ARD program imposes several burdens upon
the criminal defendant not consistent with innocence[.]” Gilles, 427 F.3 at 211.
Those “burdens” include “restitution . . . imposition of costs, and imposition of a
reasonable charge relating to the expense of administering the programs.” Id. at
197. Accordingly, it is clear that in this circuit, a defendant’s agreement to enter
into a negotiated resolution of the criminal charges against him by agreeing to
enroll in ARD will check-mate a future malicious prosecution claim regarding the
charges. Id.
Following Gilles, another district court from within the Third Circuit
concluded that the resolution of a charge for disorderly conduct that was nolle
prossed pursuant to a negotiated agreement with the defendant foreclosed a later
malicious prosecution claim because “there [we]re no facts suggesting that [the
prosecutor] nolle prossed the charge because Plaintiff was innocent.” Tighe, 2014
WL 3058434, at *15. Additionally, the court noted that the Commonwealth had
reserved the right to reinstate the charge if the plaintiff in that case failed to comply
with the terms of the compromise agreement, something that court found “hardly
suggests that [the prosecutor] believed plaintiff was innocent.” Id.
18
We find that the Gilles, Hilfirty and Donahue decisions essentially foreclose
the plaintiff’s claims here, and our finding is bolstered by the district court’s
decision in Tighe, where charges were withdrawn as part of a negotiated resolution
that did not reflect or even imply the defendant’s actual innocence of the charges.5
We recognize that the plaintiff was acquitted of the two most serious charges for
stalking and harassment, and that the third charge for violating the PFA Order was
withdrawn after the plaintiff honored his agreement to participate in a mental
health evaluation and receive drug and alcohol counseling, as well as consent to
the entry of a new PFA Order against him. However, the plaintiff has not adduced
– and, on the undisputed record, is unable to adduce – facts that could suggest that
he was actually innocent of violating the PFA. What the record shows is that this
charge was withdrawn only because the plaintiff held up his end of a negotiated
bargain by participating in counseling and a mental health evaluation, and
consenting to the entry of a new PFA Order.
The undisputed facts thus
demonstrate that the plaintiff is unable to show that the criminal proceeding that
We also note that in Kossler, the Third Circuit explained that district courts faced
with claims for malicious prosecution may elect to analyze and, if appropriate,
dispose of such claims based upon the favorable termination requirement. 564
F.3d at 194 (“We reiterate that district courts need not reach the probable cause
element unless they first make a finding of favorable termination after examining
whether the proceeding as a whole indicates the innocence of the accused with
respect to the conduct underlying all of the charges.)
19
5
was initiated against him terminated in his favor, and, therefore, his claim for
malicious prosecution fails as a matter of law.
C.
Trooper Kabacinski is Entitled to Summary Judgment on the
Plaintiff’s Claim for False Arrest and False Imprisonment
We similarly find that Trooper Kabacinski is entitled to summary judgment
on Berry’s claim that he was subjected to a false arrest or false imprisonment,
which are distinct from a claim for malicious prosecution. In general, “[t]he torts
of false arrest and false imprisonment are essentially the same actions.” Tarlecki v.
Mercy Fitzgerald Hosp., No. Civ. A. 01-1347, 2002 WL 1566668, at *3 (E.D. July
15, 2002) (citing Olender v. Twp. Of Bensalem, 32 F. Supp. 2d 775, 791 (E.D. Pa.
1999)). A false imprisonment claim brought under 42 U.S.C. § 1983 is grounded
in the Fourteenth Amendment protection against deprivations of liberty without
due process of law. Baker v. McCollan, 443 U.S. 137, 142 (1979); Groman v.
Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). A false imprisonment claim,
which is based on an arrest made without probable cause, is also based on the
Fourth Amendment’s guaranty against unreasonable seizures. Groman, 47 F.3d at
636; Barna v. City of Perth Amboy, 42 f.3d 809, 820 (3d Cir. 1994). The claims
are “generally analyzed together.” Brockington v. City of Phila., 354 F. Supp. 2d
563, 570 n.8 (E.D. Pa. 2005).6
“A claim for false arrest, unlike a claim for malicious prosecution, covers
damages only for the time of detention until the issuance of process or
20
6
In order to prevail on a claim for false arrest, a plaintiff must demonstrate
that police officers lacked probable cause to arrest him.
Thus, “[t]he proper
inquiry in a section 1983 claim based on false arrest . . . is not whether the person
arrested in fact committed the offense but whether the arresting officers had
probable cause to believe the person arrested had committed the offense.” Groman
v. Twp. Of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (quoting Dowling v. City
of Phila., 855 F.2d 136, 141 (3d Cir. 1988)). Stated differently, “an arrest [that
was] based on probable cause [can] not become the source of a claim for false
imprisonment.” Id. at 636 (citing Baker v. McCollan, 443 U.S. 137, 142 (1979)).
Furthermore, as long as probable cause existed to support any single offense that
could have been charged, an arrest will be deemed to have been supported by
probable cause. Barna, 42 F.3d at 819.
Probable cause, in turn, exists if there is a “fair probability” that the person
committed the crime at issue. 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
arraignment, and not more.” Montgomery v. De Simone, 159 F.3d 120, 126 (3d
Cir. 1998); see also id. at 128-29 (Roth, J., dissenting) (“[A] false arrest claim, in
which a person may have been illegally arrested though guilty of the prosecuted
offense, is very different from a malicious prosecution claim where the propriety of
the prosecution itself depends on it being initiated with probable cause.”).
21
be arrested.” Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995). A
police officer thus may be liable for civil damages if “no reasonable competent
officer” would conclude that probable cause existed. Wilson, 212 F.3d at 789-90
(citing Malley v. Briggs, 475 U.S. 335, 341 (1986)).
In general, the Third Circuit Court of Appeals has viewed “the question of
probable cause in a section 1983 damage suit [as] one for the jury.” De Simone,
159 F.3d at 124; Patzig v. O’Neil, 577 F.2d 841, 848 (3d Cir 1978). However, a
district court may conclude in the appropriate case that probable cause did exist as
a matter of law if the evidence, viewed most favorably to plaintiff, reasonably
would not support a contrary factual finding. Estate of Smith v. Marasco, 318 F.3d
497, 514 (3d Cir. 2003).
Furthermore, we note that “an arrest warrant issued by a magistrate or judge
does not, in itself, shelter an officer from liability for false arrest.” Wilson v.
Russo, 212 F.3d 781, 786 (3d Cir. 2000) (citing Sherwood v. Mulvihill, 113 F.3d
396, 399 (3d Cir. 1997)). Rather, in such cases a plaintiff may prevail in a § 1983
action for false arrest or false imprisonment 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 in applying for a warrant,” and (2)
22
that “such statements or omissions are material, or necessary, to the finding of
probable cause.” Id.
In this case, the plaintiff has not come forward with any evidence to show
that Trooper Kabacinski knowingly or deliberately, or with a reckless disregard for
the truth, made false statements or omissions that created a falsehood in seeking to
have Steven Berry charged and arrested. And other than to seek to reargue that
Joan Berry was an untrustworthy source and that Trooper Kabacinski should have
done more to determine the veracity of her complaint, Berry has really not come
forward with evidence in support of his false arrest claim. The evidence shows
simply that Joan Berry made a complaint about her ex-husband violating a PFA
Order, and Trooper Kabacinski was the law enforcement officer who responded to
that complaint. In so doing, he interviewed Joan Berry, confirmed that Steven
Berry had sent her multiple text messages on the day in question, and learned that
he was currently on probation for violating a prior PFA Order. This evidence,
standing alone, is sufficient for probable cause, which was the conclusion reached
by the Magisterial District Judge who arraigned Berry on the charges, and by
Judge Snyder on the Court of Common Pleas who also considered the information
during the hearing that was held on Berry’s motion for habeas corpus relief.
Furthermore, it seems entirely undisputed that Berry violated the strict terms of the
PFA order when he engaged in brief physical contact with his ex-wife, a violation
23
that as the state courts noted was particularly problematic given Berry’s past
history of PFA violations and the fact that he was on probation for violating a prior
PFA order at the time of this incident.
Notably, Berry does not really dispute many of these facts so much as he
argues that they do not tell the whole story; and he acknowledges that Joan Berry
and Trooper Kabacinski testified at the preliminary hearing that followed his
arrest, after which an independent judicial officer found that probable cause existed
to support the charges. Rather than dispute these facts, Berry tries instead to argue
that Trooper Kabacinski effectively mislead the prosecutor and the court by failing
to dig deeper into Joan Berry’s background, which would have revealed her own
prior misconduct and suggest a penchant for dishonesty and even vindictiveness.
At bottom, Berry argues that Trooper Kabacinski did an inadequate investigation
prior to contacting the District Attorney’s Office to seek guidance about what
charges should be filed, and he charges that Trooper Kabacinski conducted a
negligent investigation into Joan Berry’s complaint. But even if Berry could prove
by a preponderance of the evidence that Trooper Kabacinski’s investigation was
unreasonably limited, or even negligent, that would not support a claim for false
arrest or false imprisonment since “negligent police work, even if proven, does not
violate the due process clause.” Wilson v. Russo, 212 F.3d 781, 783 n.1 (3d Cir.
2000); see also Orsatti, 71 F.3d at 484 (“[T]he issue is not whether the information
24
on which police officers base their request for an arrest warrant resulted from a
professionally executed investigation; rather, the issue is whether that information
would warrant a reasonable person to believe that an offense has been or is being
committed by the person to be arrested.”).
It also would not alter the immutable fact that Berry’s physical contact with
his estranged wife—contact which took place at a time when Berry had previously
been convicted of PFA violations and was on probation for a prior PFA violation
conviction--violated the literal terms of the outstanding PFA order that had been
lodged against him at the time of this episode. Therefore, notwithstanding Berry’s
misgivings about his ex-wife’s motives and credibility, it seems uncontested that
he had physical contact with her of a type which was not authorized under the PFA
order. It is this action by Berry, and apparent violation of the strict terms of a PFA
order, albeit one that was not motivated by malice, which set in motion the chain of
events that led to Berry’s prosecution and, ultimately, this lawsuit.
While Berry’s failure to abide by the literal terms of this PFA order is what
led to this prosecution, we are not unmindful that Steven Berry was arrested on
charges of which he was largely later acquitted, and that before that occurred, he
endured nearly a year in prison and suffered much attendant hardship. 7 These
We also note again the confusion that exists with respect to which
charges Berry was actually being held on for 11 ½ months, since there
is some suggestion that Berry was incarcerated for violating the terms
25
7
circumstances are unfortunate and regrettable, but may have been largely avoidable
through the exercise of some greater measure of restraint by Berry, restraint that
was called forgiven Berry’s pending probation for violating a PFA order. We are
also mindful that Steven Berry raised a number of serious issues with respect to
Joan Berry, her own checkered past and subsequent circumstances that the plaintiff
claims resulted in him being awarded sole custody of the couple’s youngest
daughter. It is possible that these or other similar facts might have been relevant to
a prosecutor or judicial officer, but they do not undermine the fact that probable
cause existed for at least some of the charges for which Berry was arrested based
simply on Joan Berry’s report, the confirmation of multiple text messages that
Berry sent, confirmation of his past violations of PFA Orders and current
probationary sentence for such violations, and the fact that Berry was at that time
under significant restrictions as the result of a new PFA Order.
Berry makes an impassioned argument that Trooper Kabacinski should have
done more; what he has not done is to show that Kabacinski withheld material
information as part of seeking guidance from the prosecutor about the charges to
be filed, or in testimony at Berry’s criminal proceedings. Berry has, in the end,
made a modest showing that Kabacinski could have done more before he contacted
the prosecutor’s office to seek guidance. However, he has not suggested that
of his probationary sentence. Regardless, Berry was confined for nearly
a year before either being acquitted or having charges withdrawn.
26
Kabacinski lied or omitted information, and he has not come forward with
sufficient evidence to show that probable cause did not exist, which we find was
sufficiently supported, and which two judges similarly found in the course of
Berry’s criminal proceedings.
D.
Trooper Kabacinski is Entitled to Qualified Immunity
However, even if we were to find that Berry had managed to develop some
evidence to create a triable issue with respect to whether probable cause existed for
at least one of the crimes for which he was arrested, we would nevertheless find
that Trooper Kabacinski is entitled to qualified immunity from Berry’s false arrest
and false imprisonment claims.
The doctrine of qualified immunity shields 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine
protects public officials “from undue interference with their duties and from
potentially disabling threats of liability.” Wright v. City of Philadelphia, 409 F.3d
595, 599 (3d Cir. 2005). In accordance with this doctrine, government officials
will be immune from suit in their individual capacities unless, “taken in the light
most favorable to the party asserting the injury, . . . the facts alleged show the
officer’s conduct violated a constitutional right” and “the right was clearly
27
established” at the time of the objectionable conduct. Saucier v. Katz, 533 U.S.
194, 201 (2001). Courts may exercise their discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in
consideration of the circumstances presented by the particular case at hand.
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009).
“The relevant dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. This inquiry
“must be undertaken in light of the specific context of the case.” Id. at 201.
Accordingly, “to decide whether a right was clearly established, a court must
consider the state of the existing law at the time of the alleged violation and the
circumstances confronting the officer to determine whether a reasonable state actor
could have believed his conduct was lawful.” Kelly v. Borough of Carlisle, 622
F.3d 248, 253 (3d Cir. 2010).
At the time of plaintiff’s arrest, it was clearly established that an arrest could
be made only on the basis of probable cause. Kelly, 622 F.3d at 256. We have
found, even taking the evidence in the light most favorable to Berry, that probable
cause existed and that such a determination may properly be made from the record
evidence in this case. But there is an additional reason why we find that, under the
circumstances of this particular case, Trooper Kabacinski is entitled to qualified
28
immunity: he sought the guidance of the York County District Attorney before
filing any charges, and before other officers were dispatched to arrest Steven Berry
based on Trooper Kabacinski’s investigation.
The United States Court of Appeals for the Third Circuit has addressed the
question of whether a police officer’s reliance upon the legal advice of a district
attorney prior to making an arrest cloaks the officer with qualified immunity. In
Kelly, the Third Circuit “reject[ed] the notion that a police officer’s decision to
contact a prosecutor for legal advice [prior to making an arrest] is per se
objectively reasonable.” 622 F.3d at 255. At the same time, the appeals court
acknowledged “the virtue in encouraging police, when in doubt, to seek the advice
of counsel.” Id. After surveying other courts’ treatment of this question, the Third
Circuit held that “encouraging police to seek legal advice serves such a salutary
purpose” that it constitutes a “‘thumb on the scale’” in favor of qualified immunity.
Id. Therefore, the court held that “a police officer who relies in good faith on a
prosecutor’s legal opinion that the arrest is warranted under the law is
presumptively entitled to qualified immunity from Fourth Amendment claims
premised on a lack of probable cause.” Id. at 255-56.
At the same time, however, the Court instructed that an officer’s reliance on
such legal advice “must itself be objectively reasonable . . . because ‘a wave of the
prosecutor’s wand cannot magically transform an unreasonable probable cause
29
determination into a reasonable one.’” Id. at 256 (quoting Cox v.Hainey, 391 F.3d
25, 34 (1st Cir. 2004)). Therefore, a plaintiff may rebut the presumption that an
arrest was based upon probable cause “by showing that, under all the factual and
legal circumstances surrounding the arrest, a reasonable officer would not have
relied on the prosecutor’s advice.” Id.
In this case, we do not find that Steven Berry has rebutted this presumption,
and he has offered scant legal support for his contention that qualified immunity is
unavailable here. Indeed, he misperceives the reach of qualified immunity in
federal court when he asserts, without citation, that qualified immunity should only
be given to police officers when they are in danger or under exigent circumstances.
(Doc. 38, at 13.)
Berry is simply wrong about the availability of qualified
immunity for law enforcement officers like Trooper Kabacinski, and he fails to
perceive that the law recognizes that an officer in Trooper Kabacinski’s position
who contacts a prosecutor for guidance prior to bringing charges, and who relies in
good faith on that guidance, will be presumptively entitled to qualified immunity.
Nothing in the record suggests that Trooper Kabacinski acted in anything other
than good faith when he called the District Attorney’s Office to report what he had
learned during his investigation, and when he acted on the advice of a prosecutor
who offered professional judgment about the charges that should be filed. We
believe that this precisely the kind of case that the Third Circuit anticipated in
30
Kelly, where qualified immunity should be granted, and Berry’s inability to adduce
evidence to discredit Trooper Kabacinski’s investigation or good-faith reliance
upon the advice of a prosecutor prior to bringing charges now compels judgment in
the defendant’s favor.
Indeed, the reasonableness of the legal advice that the trooper received from
the Assistant District Attorney is underscored by the fact that two different state
court judges also agreed following evidentiary hearings that probable cause existed
to file these charges. In this setting, where the trooper followed the guidance of the
prosecutor, and the state courts twice agreed that this guidance was sound, we
cannot say that Trooper Kabacinski should have known that his actions
transgressed clearly established constitutional norms. Therefore, the defendant is
entitled to qualified immunity from damages.
IV.
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment
will be granted. An Order consistent with this Memorandum shall issue separately.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
31
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