Rose et al v. Barret Township et al

Filing 85

MEMORANDUM & OPINION For the reasons set forth in this memorandum opinion, the Court will decline to adopt Magistrate Judge Methvin's Report and Recommendation, Defendants' Motion for Summary Judgment will be denied, and the case will be set for trial.Signed by Honorable Robert D. Mariani on 1/18/13. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DOLOROS M. ROSE

Plaintiff

v.

3:09-cv-1561
(JUDGE MARIANI)

BARRET TOWNSHIP, et at
Defendants
MEMORANDUM OPINION
This matter arises upon the complaint of Plaintiff Doloros M. Rose ("Plaintiff")
following the death of her husband Edward Rose ("Mr. Rose") while in the custody of
Defendants Barret Township ("Township"), Larry Raisner ("Raisner"), and Roger Burns
("Burns")(collectively, "Defendants"). Plaintiff asserts several causes of action including,
inter alia, false arrest, false imprisonment, and malicious prosecution under 42 U.S.C. §
1983, in addition to multiple state law claims.
On December 17, 2012, Magistrate Judge Mildred E. Methvin issued a Report and
Recommendation on Defendants' Motion for Summary Judgment. Magistrate Judge
Methvin recommended that summary judgment be granted in favor of Defendants; however,
the Court cannot adopt the Report and Recommendation, and will schedule the case for
trial.

BACKGROUND
Defendants Raisner and Burns are efficers with the Barret Tewnship Pelice
Department. On the night ef August 17, 2007, they stepped Mr. Rese after Raisener
allegedly neticed a "registratien lamp" dangling from belew the bumper ef Mr. Rese's truck.

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The officers made a U-turn and effectuated a traffic step. VideO' feetage and audiO'
recerding frem a camera meunted to' the dash ef Defendants' patrO'l car captured significant
pertiens ef Defendants' enceunter with Mr. Rese. The camera alsO' depicts the registratien
lamp hanging frem belew the bumper ef Mr. Rese's truck.
After speaking briefly with Mr. Rese, Raisner then teld Burns to' tell Mr. Rese that he

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smelled alcehel "to' cever his rear end." (See Dec. 781J 14; Dec. 72, Ex. K.) The
Defendants then cenducted a series ef feur field sebriety tests, in additien to' twO' separate
breathalyzer tests. Each ef these tests was captured by the patrO'l car's meunted camera.
The breathalyzer revealed results substantially belew the legal blood alcehel centent limit.
The meunted camera revealed that Burns did net want to' arrest Mr. Rese. Raisner then
teld Burns that he weuld arrest Mr. Rese is Burns refused. Raisner then placed Mr. Rese
under arrest fer driving under the influence. He was handcuffed, and subsequently
cellapsed. Resuscitatien efferts were unsuccessful and Mr. Rese was preneunced dead at
the hespital.

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DISCUSSION

Magistrate Judge Methvin's Report and Recommendation provides the Court with a
complete and accurate description of the law surrounding the propriety of a motor vehicle
stop on the basis of reasonable suspicion and the arrest of an allegedly intoxicated driver
based upon probable cause. Nevertheless, the Report and Recommendation contains
findings of fact that the Court cannot adopt at the summary judgment stage.
I.

Reasonable Suspicion to Effectuate Motor Vehicle Stop

Magistrate Judge Methvin found that Defendants had reasonable suspicion to
effectuate the initial traffic stop based upon the dangling registration lamp. Judge Methvin
found that the "video clearly depicts a license plate light hanging below the vehicle's rear
bumper." See Report and Recommendation, ECF Dkt. 82, at 18. However, the court finds
that the overall record and the patrol car video are unclear as to whether there is another
light properly 'functioning to iIIurninate Mr. Rose's license plate. The Pennsylvania Motor
Vehicle Code requires the following with regard to acar's rear lighting:
Every vehicle operated on a highway shall be equipped with a rear lighting
system including, but not limited to, rear lamps, rear reflectors, stop lamps
and license plate light, in conformance with the regulations of the department.
75 Pa. Cons. Stat. §§ 4303{b),
Judge Methvin found that it "need not be determined whether Mr. Rose did, in fact,
violate the Vehicle Code in order to validate the traffic stop," See Report and

Recommendation, at 19. Under the totality of the circumstances, however, the Court is
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unable to determine whether a second license plate light was functioning on Mr. Rose's car,
and whether the specific, objective fact that a light hung beneath Mr. Rose's bumper
constitutes "reasonable" suspicion warranting an investigatory traffic stop. We believe the
facts surrounding the claim of reasonable suspicion, as well as the question of
reasonableness itself, are matters for ajury to decide, as the Court cannot make such
findings at the summary judgment stage.
II.

Question of Probable Cause to Arrest Mr. Rose

Magistrate Judge Methvin found that there was probable cause to effectuate an
arrest upon Mr. Rose for driving under the influence of alcohol. Judge Methvin
acknowledges that the issue of the existence of "probable cause in effecting an arrest is
typically one for the jury." See Report and Recommendation, at 21 (citing Estate of Smith v.
Marasco, 318 F.3d 497,514 (3d Cir. 2003)). She further noted, however, that "where the
evidence, viewed most favorably to a plaintiff, reasonably would not support acontrary
factual finding, a court may conclude that probable cause exists as amatter of law." See
Report and Recommendation, at 21 (citing Merckle v. Upper Dublin Sch. Dist., 211 F.3d
782, 788-89 (3d Cir. 2000)). "The proper inquiry ... 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." Ball v. Twp. of Silver Spring, 833 F. Supp.
2d 415,418 (M.D. Pa. 2011}(quoting Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d
Cir. 1988)}.
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Judge Methvin found several factors militating in favor of a determination of the

existence of probable cause for Mr. Rose's arrest. First, she placed emphasis on the fact
that Mr. Rose admitted to consuming five (5) beers. Although Mr. Rose admits to drinking
beer, and the number five was uttered by Mr. Rose, the recording is not sufficiently clear to
definitively establish that Mr. Rose consumed five beers within a period that might render
him in violation of Pennsylvania law.
Judge Methvin also acknowledged that Burns testified that he smelled alcohol on Mr.
Rose's breath. At the summary judgment stage, however, the Court cannot credit such
testimony as an objective fact. The credibility of Defendant Burns is an issue that must be
determined by ajury.
The Report and Recommendation relies heavily upon the contention that Mr. Rose
performed poorly on the four field-sobriety tests administered by Defendants. The Court
believes that reasonable jurors might differ as to whether they believe that Mr. Rose failed
any of the sobriety tests, and making such a determination at the summary judgment stage
would require the Court to engage in inappropriate fact-finding.
Further, the breathalyzer test administered by Defendants yielded results far below

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the legal limit of blood alcohol content levels permitted for an automobile driver in

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Pennsylvania. Although the test is not definitive for the purpose of determining probable

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cause, it does not support Defendants' contention that Mr. Rose was under the influence of

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alcohol. Particularly troublesome is the discussion between Raisner and Burns in which
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Burns told Raisner that he would not place Mr. Rose under arrest. Raisner responded to
Burns that if Burns refused to arrest Mr. Rose, then Raisner would do it himself. Ajury
should be permitted to determine whether this conversation, captured by the police cruiser's

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mounted camera, negates afinding of probable cause. It is a matter of credibility that

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cannot be determined at summary judgment.

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III.

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Malicious Prosecution

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Judge Methvin appropriately found that Plaintiffs claim for malicious prosecution
pursuant to the Fourth Amendment under §1983 cannot withstand summary judgment.
As Judge Methvin noted, aclaim for malicious prosecution under the Fourth Amendment
pursuant to § 1983 requires proof of five elements:
(1)
(2)
(3)
(4)

Defendant initiated a criminal proceeding;
the criminal proceeding ended in defendant's favor;
the defendant initiated the proceeding without probable cause;
the defendant 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.

Dice v. Johnson, 711 F. Supp. 2d 340,364-65 (M.D. Pa. 2010)(Caldwell, J.)(quoting
Johnson v. Knorr, 477 F.3d 75,81-82 (3d Cir. 2007)).
In the present matter, no criminal prosecution was ever brought against Mr. Rose.
The record further contains no evidence that Defendants failed to "disclose eXCUlpatory
evidence." Finally, Mr. Rose was never found innocent of the charges for which he was
arrested because he was deceased and never charged. Accordingly, for these reasons and

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for the reasons set forth in Judge Methvin's Report and Recommendation, summary
judgment in favor of Defendants will be granted on this claim.
IV.

State Law Claims

Under the Pennsylvania Political Subdivision Tort Claims Act ("PSTCA"), 42 Pa.
Cons. Stat. § 8541, et seq., municipal employees are provided immunity, commensurate
with the immunity provided to their employer, but only if the act committed was within the
scope of the employee's employment. 42 Pa. Cons. Stat. § 8545. The PSTCA includes
eight exceptions to local agency immunity. As noted by Judge Methvin, 'Ta] willful
misconduct exception exists: a public official does not receive immunity when his action
'constituted a crime, actual fraud, actual malice or willful misconduct.'" See Report and
Recommendation, at 33 (quoting 42 Pa. Cons. Stat. Ann. § 8550).
In the matter sub judice, it is unclear whether Defendants' actions, if any, were
malicious or motivated by willful misconduct. Like the earlier factual questions concerning
reasonable suspicion and probable cause, the Court is unwilling to make findings of this
nature at the summary judgment stage. Accordingly, Plaintiff's state law claims should be
presented to ajury.

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CONCLUSION

For the reasons set forth in this memorandum opinion, the Court will decline to adopt
Magistrate Judge Methvin's Report and Recommendation, Defendants' Motion for Summary
Judgment will be denied, and the case will be set for trial,..:-._ _

DATE: January 18, 2012

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