Cosby v. Magnotta et al

Filing 85

MEMORANDUM OPINION - Based on the foregoing considerations, Plaintiffs Motion for Summary Judgment (Doc. 52) is DENIED and Defendants' Motion for Summary Judgment (Doc. 62) is GRANTED IN PART and DENIED IN PART. Aseparate Order follows.Signed by Honorable Robert D. Mariani on 2/24/14. (jfg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PAUL W. COSBY, M.D.,
Plaintiff,

3:10-CV-01881

v.
(JUDGE MARIANI)
RENEE MAGNOnA, et al.,
Defendants.

MEMORANDUM OPINION
I. Introduction

Presently before the Court are cross-motions for summary judgment. (Docs. 52; 62.)
Plaintiff Paul Cosby, a medical doctor, filed this action alleging violations of his constitutional
rights stemming from an alleged search, seizure, and subsequent criminal prosecution for
illegal mishandling and distribution of prescription drugs. Now, each side seeks summary
judgment on the following counts: illegal seizure under 42 U.S.C. § 1983 (Count I) and
illegal search under § 1983 (Count 11).1 In addition, Defendants also seek summary
judgment on the counts of conspiracy to violate § 1983 (Count III) and a supervisory liability
Plaintiff also seeks summary judgment on his claims of malicious prosecution (Count IV) and
abuse of process (Count V). (See PI.'s Brief in Supp. of PI.'s Mot. for Summ. J., Doc. 54, at 33.) However,
these claims were already voluntarily withdrawn by stipulation of the parties as against Defendant
Magnotta, (see Doc. 24), and the Court subsequently approved that stipulation, (see Doc. 25), so Plaintiff
cannot seek summary judgment on these claims. Because the claims were withdrawn against Magnotta,

Plaintiff cannot now assert the claims against Fox in his supervisory capacity either, because the only

underlying violator for whom Fox could be responsible was Magnotta. Accordingly, the only claims that

remain at issue are the four claims that the parties have made the subject of their summary judgment

motions, as discussed infra.

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claim under § 1983 (Count VII), but Plaintiff does not. For the reasons set forth below, the

Court will deny the Motions in all respects except as to unlawful search, which will be
granted in favor of the Defendants.
II. Statement of Undisputed Facts

The undisputed, material facts at issue are as follows.
At the time of the events giving rise to this lawsuit, Dr. Paul Cosby was a licensed
emergency room physician who lived in rural Wayne County, Pennsylvania. (PI.'s
Statement of Material Facts, Doc. 55, at mr 5,30.) Despite "not hav[ing] a patient based
practice," (id. at ~ 5), he treated a single patient, referred to in the 'filings as "Jane Doe," for
"chronic pain in the form of migraine headaches since the 1970s," (id. at 1m 10). Doe was

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the pastor of the Assembly of the Word Church, which is located on ninety-two acres of land

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of rural land. (Id. at 1m 16,79-80.) For his part, Cosby "has been a member and contributor
of the Assembly of the Word since its inception in the late 1970s." (Id. at ~ 82.) He also
appears to be an active member of the church, in that he "also, on occasion, uses the
facilities at the Church Lodge, boards his pet in the Church aviary when he is away on
locums trips and occasionally stays overnight at the Church Lodge if it fits his travel
schedule." (Id. at ~ 48.) Because Doe was the pastor of Cosby's church and a longtime
close friend, "all treatment including prescribing and supplying the needed medical items
were done at no cost to Patient Doe with arare exception." (/d. at ~ 16.)

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In late 2007, the Drug Enforcement Administration (DEA) received notice from a

pharmaceutical sales company that Dr. Cosby was making "high volume purchases of [the
drugs] Demerol and Dilaudid." (Defs.' Statement of Material Facts, Doc. 64, at 118.) This
information was relayed to Renee Magnotta, an agent for the Pennsylvania Office of the
Attorney General's Bureau of Narcotics Investigation and Drug Control, (id. at 111), and an
investigation was commenced, (id. at 1m 7-8).
As part of the investigation, on the morning of April 9, 2008, Magnotta and two DEA
agents went on a federal site inspection of Dr. Cosby's property. (Doc. 55 at 1132.) The
inspection occurred at Cosby's residence because he "does not maintain an office" and "his
residence is the location where his medical records and some of the medications he had
ordered were retained." (Doc. 64 at 1110.)
When the agents arrived, Cosby first spoke to them outside his residence. (Doc. 55
at 1134.) During this conversation, Cosby informed the DEA agents that he does not have
an office, but rather keeps medication in his home trailer. (Id.) He further indicated that any
medication he has is for one single patient. (ld.)
Next, Cosby Signed a consent form allowing the investigators to search his
"premises." (Id. at 1154; Doc. 64 at 1111.) The consent form informed Cosby of his
constitutional right to not have an administrative inspection made in the absence of a
warrant, to refuse consent to the inspection, and to withdraw consent at any time. (See
DEA Consent Form, Doc. 59, Ex. F, at 1.) It further informed him that "(a]nything of an
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incriminating nature which may be found may be seized and used against you in a criminal

prosecution." (ld.) The consent form does not specify the scope of any search, but simply
indicates that Cosby "voluntarily give[s] consent for inspection of these controlled premises,"
designated as 451 Flat Rock Road, Forest City, Pennsylvania. (Id.) IIControlled premises"
are defined in the consent form as "places where original or other records or documents
required under [the relevant provisions of the Controlled Substances Act] are kept or
required to be kept," as well as "places, including factories, warehouses, or other
establishments, and conveyances, where persons registered under [the relevant sections]
may lawfully hold, manufacture, or distribute, dispense, administer, or otherwise dispose of
controlled sUbstances." (Id. at 2.)
The agents then proceeded to inspect the premises. Cosby apparently felt some
trepidation in letting the investigators in, in that he "was somewhat embarrassed by the
[unkempt] condition of his living quarters." (Doc. 55 at ~ 40.) Nonetheless, according to
Cosby, one of the DEA agents responded that "the condition of the living quarters was not
relevant to their Site Inspection." {Id.)2 Despite this professed lack of concern, Magnotta
proceeded to photograph the interior of Cosby's residential trailer, apparently because she
found the inside of the trailer "peculiar." (Doc. 55 at ~ 56.)
During the course of the inspection, Dr. Cosby also secured the verbal consent of
Patient Doe for the release of her medical records to the government inspectors. (Id. at ~
Defendant Magnotta recalls, somewhat differently. only that the investigator "said she 'wasn't
concerned about the unkempt trailer.'" (Defs.' Counterstatement of Material Facts, Doc. 69, at ~ 40.)
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43.} Due to space constraints in his trailer, Cosby took his computer to his garage to review

his medical records with the agents. (Id. at ~ 45.) Cosby subsequently printed, and the
agents took, 197 pages of printed medical records. (ld. at ~ 46, 57.) The agents then
questioned Cosby as to whether he personally uses the medications intended for Doe and
who pays for these medications. (Id. at 1MJ47-4S.) The DEA agents (but not Agent
Magnotta) also inspected the DEA Form 222 records that Cosby keeps with respect to the
medications at issue and inventoried the medication, which was kept in acabinet in Cosby's

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trailer. (Id. at 1MJ41, 50, 66.) As to the drugs inventoried, "a certain amount of the drugs
[ordered by Dr. Cosby] were not present." (Doc. 64 at ~ 1S.) Moreover, Agent Magnotta
"believed the records provided were inadequate and did not comply with state regulations
based on statements made by [on-scene DEAl Investigator Jackson about the content (or
lack thereon of the records." (Id. at ~ 22.)
Following the site inspection, the various agents drove to the Assembly of the Word
Church and photographed the property. (Doc. 55 at ~ 6S.) Magnotta admits that, at this
time, she had atheory that Cosby was illegally distributing controlled medications to fellow
church members. (Id. at ~ 69; see also Doc. 69 at ~ 69 (admitting that, while Magnotta
never characterized the church as "a religious sect," "one of Agent Magnotta's theories was
that Dr. Cosby was possibly dispensing the controlled medications to church members").)
On September 16, 200S, a criminal complaint was filed against Dr. Cosby in a
Susquehana County court, charging him with one felony count of prescribing outside

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accepted treatment principles and one misdemeanor count of refusal or failure to keep

required records. (Doc. 55 at 1m 108, 111.) In the time between the site inspection and the
filing of the criminal complaint, Magnotta, among other omissions, never had a medical
professional review Doe's records; never consulted with a medical professional about the
Cosby investigation; never spoke to Doe herself; never performed an audit of Dr. Cosby's
ARCOS prescription ordering information; never reviewed medical manuals to determine if
Cosby's ordering practices were appropriate; and never saw Doe's medical records from the
Hospital of the University of Pennsylvania, which Cosby believes support his chosen
treatments, though as to this latter point Defendants allege that Cosby was asked to provide
these documents but never produced them. 3 (See generally Doc. 55 at 1m 94-107.)
Cosby appeared before a magistrate judgment on September 25 for arraignment.

(Id. at 11 112; Doc. 64 at 11 26.) The judge set unsecured bail in the amount of $10,000.
(Doc. 55 at 11 112.) Cosby was then fingerprinted, photographed, and processed at the
State Police Barracks in Gibson, Pennsylvania. (Id. at 11 113; Doc. 64 at 11 28.) In the
intervening time, "Dr. Cosby resisted each and every attempt by the Commonwealth to have
him enter a plea to" the conduct at issue. (Doc. 55 at 11 110.) Nonetheless, as aresult of
the criminal charges, the Pennsylvania Board of Professional and Occupational Affairs

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(See Doc. 69 at mr 96, 107.)

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temporarily revoked Cosby's license to practice medicine, which was not reinstated until

2010. (Id. at 1f 109.}4
Finally, on January 20,2010, the Commonwealth filed a Motion to Nolle Prosse both
of the criminal charges against Dr. Cosby, based on a lack of probable cause. (Id. at W
115-116.) The Motion was granted and the charges were withdrawn. (Doc. 64 at 1f 29.)
III. Statement of Disputed Facts
The material disputed facts primarily center on the existence of probable cause for
the search and for any subsequent seizure of Dr. Cosby that may have occurred. Thus, for
instance, Cosby asserts that "Agent Magnotta articulated while on the Cosby property that
she was certain drug diversion was occurring and she had indicated that the Church to
which Dr. Cosby belonged was a cult." (Doc. 55 at 1f 52.) Cosby argues that Magnotta
created theories of criminal liability without basis in fact, solely "as a result of the perception

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that Cosby was 'different,'" in that he was a "spiritual" individual living in "spartan conditions"
in rural Wayne County. (See Pl,'s Brief in Supp. of Partial Summ. J., Doc. 54, at 4-5.)
Moreover, according to Cosby, Magnotta "had absolutely no facts to support her 'theories,'"
which also include the claims "that Dr. Cosby was self abusing the drugs; that Dr. Cosby
Defendants only admit that a petition to suspend Dr. Cosby's license was filed. (Doc. 69 at 1f
109.) They deny the remainder of paragraph 109 as "unsupported. ({d.) The Court nevertheless finds
sufficient evidence in the record to conclude that the petition to revoke the license was, in fact, granted.
For instance, Defendants rely on Cosby's curriculum vitae (Doc. 59, Ex. 8) as a definitive statement of his
employment history. (See Doc. 69 at 1m 5, 7.) Thus, Defendants deny the statement that "Dr. Cosby has
been practicing as an emergency room physician for the past thirty years, because his curriculum vitae
does not reflect any employment since June, 200S." ({d. at 7.) However, that same cuniculum vitae states
that the reason for Cosby's unemployment was the suspension of his medical license in connection with the
criminal charges. (See Doc. 59, Ex. 8, at 5.) Defendants also admit the fact of suspension in their Answer
to the Second Amended Complaint. (See Defs: Answer to Second Am. Comp!., Doc. 31, at 1f SO.)

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was giving the drugs to a third party; or that Patient Doe and her husband were

redistributing the controlled medications to persons in their 'religious sect.'" (Id. at 18.)
Instead, Cosby argues, Magnotta disregarded plainly exculpatory evidence to pursue a
baseless criminal prosecution. (Id. at 17~18.)
Relatedly, there is a dispute as to the scope of the consent form that Cosby signed.
Cosby argues that Magnotta's acts of photographing the inside of his trailer exceeded the
consent granted. (Id. at 21.) The Defendants, on the other hand, argue that the consent
form was broad enough to include photography and that, in any event, Cosby never
objected to the photography during the site inspection. (See Defs.' Brief in Opp. to PI.'s
Mot. for Partial Summ. J., Doc. 68, at 20.)
Though the existence of probable cause and the scope of consent involve legal
determinations, they also involve factual components are we"~suited for jury determination.

See, e.g., Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998) ("[T]he question of
probable cause in a section 1983 damage suit is one for the jury."); United States ex reI.

Harris v. Hendricks, 423 F.2d 1096, 1099 (3d Cir. 1970) ("It is settled that the existence and
voluntariness of a consent is a question of fact, to be decided in the light of the attendant
circumstances by the trier of facts.") (internal quotations and citations omitted).
Finally, it is unclear to what extent the second Defendant, William Fox, who was
Magnotta's supervisor at the time, had personal involvement in the events at issue in this
case. As discussed in Section V.5., infra, Defendant Fox met with Magnotta frequently to

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discuss ongoing investigations, but it is unclear to what extent he was involved in, knew

about, or acquiesced in any actions that Magnotta took with respect to Cosby.
IV. Standard of Review

Through summary adjudication, the court may dispose of those claims that do not
present a "genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). "As to materiality,
... [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, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The party moving for
summary judgment bears the burden of showing the absence of a genuine issue as to any
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,106 S. Ct. 2548, 2552, 91 L. Ed.
265 (1986). Once such a showing has been made, the nonmoving party must offer specific
facts contradicting those averred by the movant to establish a genuine issue of material fact.

Lujan V. Nat'l Wildlife Fed'n, 497 U.S. 871, 888,110 S. Ct. 3177, 3188,111 L. Ed. 2d 695
(1990). "Inferences should be drawn in the light most favorable to the non-moving party,
and where the non-moving party's evidence contradicts the movant's, then the non­
movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d
1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912 (1993).

V. Analysis

As related above, the parties do not dispute a significant amount of material facts.
Nonetheless, even though the disputed facts are comparatively few, the Court finds that

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they are of sufficient materiality to defeat both parties' motions for summary judgment,
except as noted below.

1. Unlawful Seizure
Cosby's first claim is for an unlawful seizure under section 1983. "To recover under
42 U.S.C. § 1983, [the Plaintiff] must establish that a state actor engaged in conduct that
deprived him of 'rights, privileges, or immunities' secured by the constitution or laws of the
United States." Wilson v. Russo, 212 F.3d 781,786 (3d Cir. 2000). When the conduct
alleged is an unlawful seizure, the Plaintiff must show that he was seized without probable
cause in violation of the Fourth Amendment. See, e.g., Orsatti v. New Jersey State Police,
71 F.3d 480, 482-83 (3d Cir. 1995) (discussing elements of a section 1983 claim for false
arrest).
However, it should be noted that Cosby's claim for an unlawful seizure is a relatively
narrow one. Having already stipulated to the dismissal of his malicious prosecution claim,
(see Doc. 24), Cosby can no longer assert a claim relating to the conduct of his criminal
prosecution. Rather, he can only assert aclaim related to his seizure by government
authorities and any damages that followed such seizure. See, e.g., Johnson v. Knorr, 477
F.3d 75,82 (3d Cir. 2007) ("Malicious prosecution differs from false arrest inasmuch as 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 arraignment, and not more.") (internal
quotations and alterations omitted)
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a. Existence of a Seizure
In the present case, it is undisputed that Cosby was never arrested in the
traditional sense. He was not arrested during the site inspection and later appeared
voluntarily before the magistrate for his arraignment, at which paint he was released on
bail. However, the United States Supreme Court has held that an arrest need not only

be effected through direct physical force: "where that is absent, submission to the
assertion of authority" can constitute an arrest. California v. Hodari D., 499 U.S. 621,
626,111 S.Ct.1547, 1551, 113L.Ed.2d690(1991). As the Third Circuit has
interpreted the case law,
seizures can be of different intensities. Thus, whereas an arrest that
results in detention may be the most common type of seizure, an
investigative stop that detains a citizen only momentarily also is a seizure.
See Terry v. Ohio, 392 U.S. 1, 16-18,88 S. Ct. 1868, 1877-78,20 L. Ed.
2d 889 (1968). Terry demonstrates that the legal distinction between an
arrest and an investigative stop is not that one is a seizure and the other is
not, but that the police may be able to execute a stop based on
circumstances not rising to the level of probable cause for an arrest. See
392 U.S. at 2 n.16, 88 S. Ct. at 1879 n.16. This analysis suggests that the
restrictions imposed on [the plaintiff, discussed a p. 12, infra,] would qualify
as aseizure, even though they did not amount to a full blown arrest.

Gallo v. City of Philadelphia, 161 F.3d 217,223 (3d Cir. 1998).

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In this respect, Cosby argues that

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[w]hen his criminal defense attorney received a contact advising him that

an arrest warrant had issued, Dr. Cosby was threatened by Defendant

Magnotta who showed her authority by restraining the liberty of Dr. Cosby

by stating that she would come pick him up if he would not surrender.

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Clearly, Dr. Cosby subjected himself to Defendant Magnotta's assertion of
her authority by appearing at the Office of the District Justice with a threat
of arrest looming over his head.
(PI.'s Brief in Opp. to Defs.' Mot. for Summ. J., Doc. 73, at 5.)
In Gallo v. City of Phi/adelphia, supra, the Third Circuit found that a criminal
defendant who "had to post a $10,000 bond, ... had to attend all court hearings
including his trial and arraignment, ... was required to contact Pretrial Services on a
weekly basis, and ... was prohibited from traveling outside New Jersey and
Pennsylvania" had in fact been seized under the Fourth Amendment. Gal/o, 161 F.3d at
222. The Circuit subsequently clarified, in more general terms, that, while "[p]retrial
custody and some onerous types of pretrial, noncustodial restrictions constitute a Fourth
Amendment seizure," merely having to attend one's criminal trial does not. DiBella v.
Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005). In the latter case, in finding
that no seizure sufficient to support a section 1983 claim occurred under the facts
presented, the DiBella court noted that the civil plaintiffs "were only issued a summons;
they were never arrested; they never posted bail; they were free to travel; and they did
not have to report to Pretrial Services. Their liberty was restricted only during the
MuniCipal Court trials ...." Id.
Cosby's pretrial restrictions appear to fit somewhere in between those imposed in
Gallo and DiBella. Unlike the plaintiff in DiBella, awarrant was issued for Cosby's arrest.

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(See Notice of Preliminary Hearing and Bail Documentation, Doc. 59, Ex. N, at 5.) While
the Court is unaware of any travel restrictions, requirements to report to pretrial services,
or other restrictions beyond those incident to the payment of bail, Cosby was required to
pay $10,000 in unsecured bail, (id. at 7), and was not released until he submitted for
fingerprints, (id. at 3), and a mug shot, (see Mug Shot Photograph of Plaintiff, Doc. 59,
Ex. 0, at 2.)
While these restrictions could at most give rise to a less obvious seizure than
would have occurred if Magnotta physically handcuffed Cosby and brought him to the
courthouse, the Court believes they are nonetheless sufficient to create ajury question
on whether Cosby was in fact seized. Accordingly, summary judgment will be denied on
this ground.
b. Existence of Probable Cause
As noted above, the existence of probable cause is a question of fact best left for the
jury. See Montgomery, 159 F.3d at 124. Moreover, U[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." Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir.
1988). "Probable cause exists where 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."
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United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990). "Whether probable cause
exists depends upon the reasonable conclusion to be drawn from the facts known to the
arresting officer at the time of the arrest." Devenpeck v. Alford, 543 U.S. 146, 152, 125
S. ct. 588, 593, 160 L. Ed. 2d 537 (2004). In reaching this conclusion, the arresting
officer's state of mind is irrelevant; all the factfinder must ask is whether the facts
available to the arresting officer objectively gave rise to a finding of probable cause at
the time the arrest was made. Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct.
1769, 1774, 135 L. Ed. 2d 89 (1996) (summarizing case law and concluding that

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"[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment

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analysis").
However, II[a]n officer contemplating an arrest is not free to disregard plainly
exculpatory evidence, even if substantial inculpatory evidence (standing by itselij
suggests that probable cause exists." Wilson, 212 F.3d at 790 (quoting Kuehl v. Burtis,
173 F.3d 646, 650 (8th Cir. 1999)). Nor does
an arrest warrant issued by a magistrate or judge . . ., in itself, shelter an

officer 'from liability for false arrest. See Sherwood v. Mulvihill, 113 F.3d 396,

399 (3d Cir. 1997). Rather, a plaintiff may succeed in a § 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 in applying for a warrant; and (2) that

such statements or omissions are material, or necessary, to the finding of

probable cause.

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ld. at 786-87.
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Consistent with case law, the issues of probable cause in Cosby's case are best left
for jury determination. Primarily, there is the question of whether Magnotta disregarded
plainly exculpatory evidence when she initiated criminal charges against Cosby and
obtained an arrest warrant. The fact that Magnotta did not review a series of records
pertaining to the investigation that she might have had access to and which could have
exculpated Cosby, as detailed on page 6, supra, may be cause for a reasonable jury to find
that Magnotta lacked probable cause. This is especially so if the jury were to find, as stated
in Plaintiffs statement of facts, that Magnotta was not present when Cosby explained his
medical records to the DEA investigators, (see Doc. 55 at ~ 66), that Magnotta was
unfamiliar with the appropriate medical practices for a patient in Doe's situation, (see Doc.
55 at ~ 98), and that this lack of knowledge would have led a reasonable officer to doubt the
existence of probable cause. On the other hand, a reasonable jury could find that there was
sufficient evidence to support probable cause despite these purported shortcomings. In any
event, this determination, based as it is on disputed facts and the interpretations of those
facts, is one unsuited for the Court's resolution at the summary judgment stage.
Accordingly, the Court will deny the cross-motions for summary judgment as to the
unlawful seizure claim.

2. Unlawful search
Cosby's next claim is for an unlawful search in violation of section 1983. Because
Cosby signed aconsent form allowing the investigators to search his "premises," without

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specification of where within the premises the investigators were permitted search, the issue
of unlawful search is limited to whether Magnotta exceeded the consent that Cosby gave.
The Supreme Court has "long approved consensual searches because it is no doubt
reasonable for the police to conduct a search once they have been permitted to do so."

Florida v. Jimeno, 500 U.S. 248, 250-51, 111 S. Ct. 1801, 1803, 114 L. Ed. 2d 297 (1991)
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d
854(1973)).
Cosby alleges that, even if he did consent to asearch of his premises, Magnotta's
act of photographing the inside of his trailer went beyond the scope of his consent. (See
Doc. 54 at 21; Doc. 73 at 11.) In ruling on this question, "[t]he standard for measuring the
scope of a suspect's consent under the Fourth Amendment is that of 'objective'
reasonableness-what would the typical reasonable person have understood by the
exchange between the officer and the suspect?" Jimeno, 500 U.S. at 251 (citing Illinois v.

Rodriguez, 497 U.S. 183-189, 110 S. Ct. 2798-2802, 111 L. Ed. 2d 148 (1990)).
This Court is aware of no controlling authority addressing whether photography falls
outside the scope of consent to a search as

a matter of law. 5

Other Circuits, however, have

held that unconsented photography during otherwise legal searches does not constitute an
Defendants claim that "the Third Circuit has supported and encouraged the taking of
photographs during searches as part of the plain view doctrine." (Brief in Supp. of Defs.' Mot. for SlJmm. J.,
Doc. 65, at 12.) However, their only support for this sweeping proposition is an Eastern District of
Pennsylvania case from the year 1983 which mentioned, in the course of a seventeen-page opinion, that
photographs may authorized under certain circumstances, and which the Third Circuit subsequently
affirmed without opinion. See United States v, Waxman, 572 F. Supp. 1136, 1150 (E.D. Pa. 1983), aff'd
754 F.2d 49. The Court cannot derive any precedential policy from such meager authority.
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unlawful seizure. See United States v. Mancari, 463 F.3d 590,596 (7th Cir. 2006); Bills v.

Aseltine, 958 F.2d 697, 707 (6th Cir. 1992); United States v. Espinoza, 641 F.2d 153,167
(4th Cir. 1981). Such a position is justified under the plain-view doctrine, which holds that,
for purposes of aFourth Amendment search, "[i]f an article is already in plain view, neither
its observation nor its seizure would involve any invasion of privacy." Horton v. California,
496 U.S. 128, 133, 110 S. Ct. 2301,2306, 110 L. Ed. 2d 112 (1990). The Sixth Circuit
summarized the logic of this position when it held:
In Arizona v. Hicks, 480 U.S. 321, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987),
the Supreme Court held that the mere recording of serial numbers of certain
pieces of stereo equipment did not constitute a seizure because the recording
Iidid not Imeaningfully interfere' with respondent's possessory interest in either
the serial numbers or the equipment ...." Id. at 324,107 S. Ct. at 1152. By
a parallel process of reasoning, it follows that the recording of visual images
of a scene by means of photography does not amount to a seizure because it
does not "meaningfully interfere" with any possessory interest. Thus, under
the Supreme Court's reasoning, photographs taken by the police officers in
this case would not constitute a seizure. Because the police officers in this
case were properly on the Bills' premises, they could record by photography
scenes presented to their plain view.

Bills, 958 F.2d at 707.
When we apply such reasoning to the facts of the present case, Cosby's claim
appears increasingly weaker. First, Cosby executed a consent for the investigators to
search, which is not alleged to have been made under duress or under any other condition
that could vitiate the voluntariness of the consent. This means that Magnotta was lawfully
within Cosby's trailer when she took the pictures. Second, there was nothing in the consent
form that limited the scope of the consent being given, nor any allegations that Cosby orally
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limited his consent beyond what was specified in the form. And while the Court must

evaluate the scope of Cosby's consent under an objective reasonableness standard, there
is no reason to believe that photographs of portions of the trailer taken in plain view were
unreasonable, given that the Supreme Court has held that agovernment officer does not
violate any expectation of privacy by observing an object in plain view. The case might be
otherwise if Cosby had objected to the photographs or placed some kind of limits on the
scope of his consent, but no such facts were presented here.
However, the Court need not definitively determine whether the photographs violated
Cosby's Fourth Amendment rights because, even if Cosby can argue that he has a Fourth
Amendment right against photography despite the existence of a signed consent form
without any such limitations, Magnotta would still be protected by qualified immunity.s
In deciding whether to grant qualified immunity, the Court must consider two
questions: First, "[t]aken in the light most favorable to the party asserting the injury, do the
facts alleged show the officer's conduct violated aconstitutional right?" Saucier v. Katz, 533

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U.S. 194,201,121 S. Ct. 2151, 2156,150 L. Ed. 2d 272 (2001). Second, "if a violation

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could be made out on afavorable view of the parties' submissions, the next, sequential step

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is to ask whether the right was clearly established." Id. The Supreme Court has
subsequently relaxed Saucier's two-step structure, and allows district courts "to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity analYSis
Defendants raise the defense of qualified immunity for the search claim only, and not for the
seizure claim. (See Doc. 65 at 11-13; Doc. 68 at 20-22.) Accordingly, the Court only need consider
qualified immunity in the present context.
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should be addressed first in light of the circumstances of the particular case at hand."

Pearson v. Callahan, 555 U.S. 223, 236,129 S. ct. 808, 818,172 L. Ed. 2d 565 (2009).
Here, while the Court may assume arguendo that Cosby could meet Saucier's first
prong, his clear failure to meet the second prong and demonstrate a "clearly established
right" makes summary judgment for the Defendants on the unreasonable search claim
appropriate.
A right is clearly established when

[t]he contours of the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right. This is not to say

that an official action is protected by qualified immunity unless the very action

in question has previously been held unlawful, but it is to say that in the light

of pre-existing law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640, 107 S. ct. 3034, 3039, 97 L. Ed. 2d 523 (1987)
(internal citations omitted). "This inquiry turns on the on the 'objective legal reasonableness
of the action, assessed in light of the legal rules that were clearly established at the time it
was taken.'" Pearson, 555 U.S. at 244 (quoting Wilson v. Layne, 526 U.S. 603, 614,119 S.
Ct. 1692, 1699, 143 L. Ed. 2d 818 (1999)).
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The Court cannot conclude that a reasonable officer could have believed that taking
photographs of objects in plain view during aconsent search was unlawful, because the
state of the law of photography under the plain-view doctrine was unclear at the time that
Magnotta took the photographs (and remains so). Cf. Wilson, 526 U.S. at 615 ("In this
case, the appropriate question is the objective inquiry whether a reasonable officer could

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have believed that bringing members of the media into a home during the execution of an

arrest warrant was lawful, in light of clearly established law and the information the officers
possessed."). While it is possible to make fine legal distinctions between taking a
photograph of an object in plain view and simply looking at the same object, it is not at all
clear from a review of the Fourth Amendment case law that the federal courts would or
should accept such a distinction. As such, a reasonable officer cannot be expected to make
that distinction.
For all of the foregoing reasons, the Court will grant Defendants' Motion for
Summary Judgment as to the unlawful search claim, and will deny Plaintiffs Motion as to
the same.

3. Conspiracy
Next, Defendants seek summary judgment on Count III of Plaintiffs Second
Amended Complaint, which alleges aconspiracy to violate section 1983.7 (See Doc. 65 at
13-14.) Plaintiff alleges only that Magnotta and the two DEA agents "conspired with each
other to violate Dr. Cosby's rights under the Fourth and Fourteenth Amendments to the
United States Constitution." (Second Am. Comp!., Doc. 16 at ~ 106.)
In order to prove a claim of conspiracy to deprive a plaintiff of his civil rights, the
plaintiff must prove "that two or more conspirators reached an agreement to deprive him or
her of a constitutional right 'under color of law.'" Parkway Garage, Inc. v. City of
7 Plaintiff does not seek summary judgment on his conspiracy claim. Nor does he seek summary
judgment on the supervisory liability claim, discussed in Section V.4, infra.

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Philadelphia, 5 F.3d 685, 700 (3d Cir. 1993) (citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 150,90 S. Ct. 1598, 1604,26 LEd. 2d 142 (1970)). Cosby argues for the existence of
conspiracy as follows:
Had the investigatory team left the property of Dr. Cosby and proceeded with
further investigation or efforts against Dr. Cosby alone, there would be no
claim of conspiracy. The claim of conspiracy here is based upon the view by
Agent Magnotta that Dr. Cosby was part of a cult-like religious organization
that was utilizing the controlled substances he ordered for sacrificial
purposes. 8

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(Doc. 73 at 15.) Cosby pOints to further evidence of conspiracy in the facts that, after

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leaving his home, the investigators proceeded to his church, trespassed on church property

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to photograph the buildings, and began a criminal inquiry against Jane Doe and her

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husband. (Id. at 15-16.) All of this, Cosby argues is sufficient "circumstantial evidence ...
to support the inference that Agent Magnotta and the DEA investigators engaged in
concerted or joint action relative to Agent Magnotta's wild theory on the use of the controlled
substances which Dr. Cosby ordered. (Id. at 17.)
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The Court agrees that the record contains sufficient circumstantial evidence of a
conspiracy to survive summary judgment. If, as discussed above, Magnotta lacked

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probable cause to continue with the investigation, and only continued it based on theories
that were not supported by the facts known to her, then there is evidence from which a
reasonable jury could conclude that she acted to deprive Cosby of his civil rights.

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It is unclear what Plaintiff means by ·sacrificial purposes," as it is not apparent from the record
provided that Magnotta believed that the church was using drugs to perform sacrifices. However, as
discussed above, there are reasonable disputes in the record as to whether Magnotta believed that the
drugs were being used for other improper purposes.
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Moreover, because the investigators acted in concert with Magnotta in the acts constituting

the alleged deprivation when they drove to the church property and photographed the
buildings with her, ajury could infer that they "reached an agreement" to engage in acts
which violated Cosby's constitutional rights,9
Accordingly, Defendants' Motion for Summary Judgment will be denied as to the

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4. Supervisory Liability
Finally, Defendants seek summary judgment on all counts against William Fox,

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Magnotta's supervisor at the Bureau of Narcotics Investigation and Drug Control. (See Doc.
16 at 1f 5.) In the Second Amended Complaint, Plaintiff alleged all allegations against Fox in
his supervisory capacity. (Id. at 1f 120.) However, Defendants argue that Plaintiff has not
shown that Fox was personally involved in any of the events giving rise to the claim, aside
from "routine day-to-day actions of communicating with his staff and reviewing their reports."

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(Doc. 81 at 17.)

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In their Reply Brief, Defendants argue that this evidence at most shows a conspiracy to violate
the third-party rights of Doe, her husband, and her church, and not Cosby's personal rights. {See Reply
Brief in Supp. of Defs.' Mot. for Summ. J., Doc. 81, at 17 ("The only circumstantial evidence cited by
Plaintiff points to a potential conspiracy to violate the rights of his religious institution and its Pastor and her
husband,H).) The Court disagrees. While ajury could conclude that the only rights violated were those of
third parties, it could just as reasonably conclude that asubstantial purpose of the trespassing and
photographing was to build acase against Cosby that was not supported by probable cause. Such a
conclusion could support aclaim of conspiracy under section 1983, even if the means by which the
conspiracy was accomplished consisted solely of violating the rights of third parties, as long as the goal of
the conspiracy was to violate Cosby's rights, and as long as such a violation of Cosby's rights did, in fact,
occur. Because the Court has already found that there are sufficient questions of fact to reach ajury as to
whether Cosby's rights were in fact violated, then the conspiracy claim may proceed to the jury as well.
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A "supervisor may be personally liable under § 1983 if he or she participated in
violating the plaintiff's rights, directed others to violate them, or, as the person in charge,
had knowledge of and acquiesced in his subordinates' violations." A.M. ex reI. J.M.K. v.

Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe
Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Even though the Plaintiff must show personal
involvement in the alleged wrongs, and may not predicate a section 1983 claim on atheory
of respondeat superior, "[p1ersonal involvement can be shown through allegations of
personal direction or of actual knowledge and acquiescence." Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988).
Therefore, even accepting as true Defendants' argument that "[t1here is no evidence
that Supervisor Fox had personal involvement in the filing of charges against Dr. Cosby or
the search of his residence/office," (see Doc. 65 at 15), the Court still finds that there is
sufficient evidence for the supervisory liability claim as to his involvement in other aspects of
the investigation to survive summary judgment. As Cosby points out, Fox only supervised
six narcotics agents, with whom he conferenced about ongoing investigations daily. (See
Dep. Test. of William Fox, Doc. 59, Ex. R, at 11:2-12:2.) Moreover, Fox admits to
discussing the Cosby investigation with Magnotta, (id. at 12:23-13:1), and appears to know
at least the basic facts of the case, (id. at 41 :13-43:21 (stating his understanding that Cosby
"was distributing narcotics to two people ["a husband and wife"1 in the Honesdale area" and
stating that Magnotta showed him photographs of the Does' residence).) Given the small
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number of agents that Fox supervised, the frequency with which he discussed ongoing
cases with them, and the fact that he was made at least somewhat aware of the Cosby
investigation during its pendency, a reasonable jury could conclude that Fox knew about
and acquiesced in any violations of Cosby's constitutional rights that Magnotta might have
committed.
Accordingly, the Court will deny Defendants' Motion for Summary Judgment as to
supervisory liability.
VI. Conclusion

Based on the foregoing considerations, Plaintiffs Motion for Summary Judgment
(Doc. 52) is DENIED and Defendants' Motion for Summary Judgment (Doc. 62) is
GRANTED IN PART and DENIED IN PART. Aseparate Order follows

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