Mawson v. Pittston City Police Department et al

Filing 99

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 11/18/15. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT WILLIAM MAWSON, SR., :
Plaintiff

:

v.

:

THE PITTSTON POLICE
DEPARTMENT, et al.,

CIVIL ACTION NO. 3:13-1714
(JUDGE MANNION)

:
:

Defendants
MEMORANDUM
Pending before the court is the report of Judge Schwab, (Doc. 90),
which recommends that the Court deny the defendant, Officer DiSimone’s
motion for summary judgment because material factual disputes remain.
Based upon the court’s review of the record, the court will ADOPT in part and
NOT ADOPT in part Judge Schwab’s Report and Recommendation, and
therefore partially GRANT the defendant’s motion for summary judgment on
qualified immunity grounds solely in relation to the defendant’s initial decision
to stop the plaintiff.

I.

PROCEDURAL BACKGROUND
By way of relevant background, on June 24, 2013, Robert William

Mawson, Sr., the plaintiff, filed a complaint and an application to proceed in

forma pauperis. (Docs. 1, 2). The plaintiff was granted leave to proceed in
forma pauperis; however Judge Schwab, after screening the complaint,
concluded that it failed to state a claim upon which relief may be granted, but
granted the plaintiff leave to file an amended complaint. (Doc. 8).
The plaintiff filed his amended complaint on October 8, 2013, naming
the Pittston City Police Department along with five police officers as
defendants. (Doc. 9). In his complaint, the plaintiff asserted numerous claims
arising from two incidents involving the Pittston City Police Department. Id.
Pursuant to this court’s order on July 28, 2014, all but one of the plaintiff’s
claims have been dismissed, (Doc. 34), and all defendants except for Officer
DiSimone (“defendant”) have been dismissed from the action entirely. Id. The
remaining claim alleges that Officer DeSimone seized the plaintiff in violation
of his Fourth Amendment rights, and the plaintiff is seeking compensatory and
punitive damages. Id.
On August 29, 2014, the defendant filed his answer to the amended
complaint, denying plaintiff’s allegations and asserting numerous affirmative
defenses, including the defense of qualified immunity. (Doc. 40). After a case
management conference was held, (Doc. 42), the parties began discovery.
After numerous telephone conferences to resolve discovery disputes and
challenges, the parties completed discovery. (Docs. 44-68). The defendant
then filed a motion for summary judgment, on January 19, 2015, on the
2

grounds that he is entitled to qualified immunity and that the plaintiff abused
his in forma pauperis status. (Doc. 69). The plaintiff initially filed a brief in
opposition to the motion for summary judgment, but failed to respond to the
defendant’s statement of material facts. (Doc. 73). The plaintiff then filed a
motion for the court to rule on whether the defendant had improperly withheld
discovery. (Doc. 79). Judge Schwab denied the plaintiff’s motion and ordered
him to file a response to the defendant’s statement of material facts filed in
support of the defendant’s motion for summary judgment. (Doc. 83). Finally,
in March and April of 2015, the plaintiff filed his response to the defendant’s
statement of material facts through a series of submissions to the court, where
he disputed most facts presented by the defendant. (Docs. 85-89).
Upon completion of briefing for the defendant’s motion for summary
judgment, Judge Schwab submitted her report and recommendation (“R&R”),
which proposed that the motion for summary judgment be denied. (Doc. 90).
The plaintiff timely filed what he titles “Letter/Objections” in response to Judge
Schwab’s R&R on September 16, 2015. (Doc. 91).The defendant filed
objections to the R&R on September 28, (Doc. 92, 93), and filed a response
to the plaintiff’s objections (or “Letters/Objections”) on September 30, 2015.
(Doc. 94). Finally, on October 5, 2015, the plaintiff filed a response to the

3

defendant’s objections. (Doc. 95).1

II.

STANDARD OF REVIEW
When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of the
report to which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue,
649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent
of review is committed to the sound discretion of the district judge, and the
court may rely on the recommendations of the magistrate judge to the extent
it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000)
(citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
However, Federal Rule of Civil Procedure 72 states that a “a party may
serve and file specific written objections to the proposed findings and
recommendations,” Fed.R.Civ.P. 72, and Local Rule 72.3 further explains that
objections “shall specifically identify the portions of the proposed findings,
recommendations or report to which objection is made and the basis for such

1

The plaintiff also filed a “letter” to the court in which he attached his
previously submitted response to the defendant’s objections, and also
attached a document entitled, “The Plaintiffs Responce to Defendants
Objection to the Plaintiffs Partial Objection Filed Sept 16, 15.” (Doc. 96, pp.
32-46 (sic)). This attachment includes a stamp from the clerk’s office dated
October 6, 2015; however, the document was not filed in the docket until
October 16, 2015 as part of Doc. 96.
4

objections.” Local Rule 72.3 (emphasis added). This requires a party to
specifically point to the Magistrate Judge’s arguments, findings, or errors to
which he objects and identify the basis for such objection. Id.; Goney v. Clark,
749 F.2d 5, 7 (3d Cir. 1984). If a party fails to do so, then “a court is not
required to address those objections.” Pellicano v. Blue Cross Blue Shield
Ass'n, No. 11-406, 2012 WL 1828027, at *3 (M.D. Pa. May 18, 2012) aff'd,
540 F. App'x 95 (3d Cir. 2013) (citing Reid v. Lawler, No. 085674, 2010 WL
1186320, at *3 (E.D.Pa. Mar.25, 2010)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp. 2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.3.

III.

DISCUSSION
5

Both the plaintiff and the defendant filed objections to Judge Schwab’s
R&R, and each party’s objections will be reviewed by the court in turn. Judge
Schwab thoroughly reviewed the briefs and statements of material facts
offered by both parties, and made material factual findings noting which facts
are disputed by the parties. (Doc. 90, pp. 6-12). The court agrees that these
facts are supported by the record and thus adopts and incorporates by
reference Judge Schwab’s factual findings for the purposes of this
memorandum.2 Id.

A.

Plaintiff’s Objections

Judge Schwab’s report recommended that the defendant’s motion for
summary judgment be denied, a favorable result for the plaintiff. Despite the
favorable ruling, the plaintiff filed a document, “Letter/Objections,” that
appears to contain objections to Judge Schwab’s R&R.
The plaintiff asserted seven (7) numbered objections, (Doc. 91); each
will be briefly identified. Objection 1 alleges that the police report prepared by
the defendant regarding the incident from which this action arises was
falsified. The second objection argues that the defendant withheld the names
2

The defendant objects that it “appears that the Magistrate Judge may
have misconstrued the facts,” (Doc. 92, ¶1-2) (emphasis added); however, his
interpretation is incorrect, as will be discussed below in the court’s review of
the defendant’s objections.
6

of all of the police officers present at the scene during discovery. Objection 3
claims that there was “intence[sic] police intrusion” supported by Debbie
Williams’ sworn deposition. (Doc. 91, p. 3). Next, in objection 4, the plaintiff
objects to the defendant’s assertion that Dayna Williams is a known drug
addict. Objection 5 relates to whether Stefanie’s Bar, the location of the
incident, is part of an FBI investigation; the plaintiff states that there is no
evidence of this and this fact arose after the close of discovery. In Objection
6, the plaintiff identifies instances of bad faith and deceit on the part of the
defendant since this action commenced. The seventh and final objection
complains that the defendant targeted the plaintiff and retaliated against the
plaintiff for another pending lawsuit that the plaintiff commenced against the
Pittston City Police Department.
Throughout his objections, the plaintiff fails to specifically identify any
portion of Judge Schwab’s R&R to which he objects; in fact, the plaintiff does
not mention the R&R at all. The plaintiff also fails to identify the basis or
grounds for each objection, as required by Local Rule 72.3. All of the
objections are either reiterations of previous arguments from the plaintiff’s
earlier pleadings or facts previously presented in his material facts statements
that he wants this court to note (most notably those presented in documents
he submitted in opposition to the instant summary judgment motion), which
have already been considered and referenced in the R&R of Judge Schwab.
7

(Docs. 73-75, 79, 85-89); see generally Doc. 91. Given his failure to comply
with the Local Rules, the court need not address the plaintiff’s objections in its
review of Judge Schwab’s R&R,3 and must solely review the R&R for clear
error.
The court also notes that the purpose of summary judgment is not to
determine the merits of the case, but is to determine if the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Turner v. Schering–Plough Corp., 901
F.2d 335, 340 (3d Cir.1990). Here, the defendant moved for summary
3

Note that the plaintiff’s first objection relating to falsification of the
police report does not point to or identify a specific portion of the R&R,
however, the objection does correspond to a specific finding by Judge
Schwab in footnote 2 of the R&R. In addition, the defendant, in his response
to the objections, addresses the falsification issue. (Doc. 94, p. 2). Therefore,
in an abundance of caution the court will review Judge Schwab’s footnote 2
finding de novo. This court finds the conclusion correct and adopts the finding
that “[t]here is no basis for a reasonable trier o[f] fact to conclude that the
reports in this case were falsified.” (Doc. 90, p. 7). The absence of the police
officer’s signature on a police report does not render it false, and the markings
on the bottom of the page noted by Judge Schwab and the defendant, are
clearly and indisputably facsimile and printing annotations. The plaintiff
presents no evidence or affidavits that would create a genuine dispute or on
that basis would lead one to reasonably conclude that the police report is
false.
8

judgment on the grounds that he is entitled to qualified immunity and that the
plaintiff abused his in forma pauperis status. Judge Schwab found that there
existed genuine disputes of material fact and recommended denial of the
defendant’s motion for summary judgment. (Doc. 90). The plaintiff’s objections
seek to: establish additional factual disputes beyond those identified by Judge
Schwab; set forth arguments supporting plaintiff’s case on the merits; and
complain about discovery disputes. Even if the court were to address the
plaintiff’s objections, they would have no effect on the outcome of the instant
motion.

B.

Defendant’s Objections

Officer DiSimone, the defendant, filed several objections to Judge
Schwab’s R&R. (Doc. 92, 93). Each objection, unlike the plaintiff’s objections,
points to a particular ruling and portion of the R&R to which the defendant
objects and identifies the basis for such objection, in accordance with Local
Rule 72.3. The defendant’s objections will thus be reviewed de novo below.

1.

Judge Schwab’s Interpretation of the Facts

The defendant first objects to the R&R on the grounds that Judge
Schwab “may have misconstrued the facts” by finding that “Mawson never put
9

his hand back in his pockets after giving money to Dayna Williams.” (Doc. 93,
p. 12) (emphasis in original). This objection has no merit because Judge
Schwab never found that the plaintiff, Robert Mawson, never returned his
hand to his pocket after the money exchange with Dayna Williams. Judge
Schwab noted both parties’ versions of the facts describing the money
exchange between the plaintiff and Dayna Williams, and then viewed the facts
in a light most favorable to the plaintiff’s version of the facts, as the plaintiff is
the nonmoving party. Judge Schwab’s description of the plaintiff’s version of
the incident includes the following: “[Mawson] did not shake hands with Sult
and he did not put his hand in his pocket, take it out and look at something,
and then put his hand back in his pocket.” (Doc. 90, p. 10). This description
is not a conclusion that the plaintiff never put his hand back in his pocket,
rather it states that he did not do all the actions as they were described in the
defendant’s police report, more specifically that the plaintiff did not do the
actions in the particular sequence described.4 Nowhere in the R&R does
Judge Schwab note or conclude that the plaintiff never returned his hand to

4

The plaintiff’s response to the defendant’s objections is consistent with
the court’s conclusion. The plaintiff asserts that he disputes that the actions
enumerated above occurred at one time, in sequence, but does not dispute
that the plaintiff never returned his hand to his pocket. (Doc. 95, p. 6).
10

his pocket, nor did she find that he did return his hand to his pocket.5
Therefore, the defendant’s objection that Judge Schwab erred in
misconstruing the evidence is overruled.

2.

Judge Schwab’s Denial of Qualified Immunity

The defendant also raises an objection regarding Judge Schwab’s
recommendation that the court deny qualified immunity. The qualified
immunity analysis has two prongs. Pearson v. Callahan, 555 U.S. 223, 232
(2009); Saucier v. Katz, 533 U.S. 194, 201–02, abrogated in part by Pearson,
555 U.S. 223; Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007); Williams v.
Bitner, 455 F.3d 186, 190 (3d Cir. 2006). One prong of the analysis is whether
the facts that the plaintiff has alleged or shown make out a violation of a
constitutional right. Id. The other prong of the analysis is whether the right was
clearly established, Saucier, 533 U.S. at 201, or rather whether a reasonable
state actor under the circumstances would understand that his conduct
violates that right. Williams, 455 F.3d at 191. The court is permitted to

5

The court declines to make a finding that the plaintiff did return his
hand to his pocket, because the defendant’s evidentiary support for such
contention was not provided to Judge Schwab in any of the defendant’s
submissions to the court supporting his motion for summary judgment. This
evidence has only been submitted to this court as part of the defendant’s
objections. (Doc. 93, Ex. 1). Thus, the Magistrate Judge had no opportunity
to review the evidence in preparing the R&R.
11

exercise its discretion in deciding which of the two prongs of the
qualified-immunity analysis should be addressed first in light of the
circumstances of the particular case. Pearson, 555 U .S. at 236.
The defendant objects to the second prong of the qualified immunity
analysis: whether the law was clearly established. (Doc. 93, p. 13).
Specifically, in his objection, the defendant argues that the R&R only included
a discussion of the clearly established law as it relates to the defendant’s
version of the facts, but never analyzed the relevant law as it relates to the
plaintiff’s version of the facts, or the undisputed facts. Pursuant to Third Circuit
precedent, when undergoing the second prong of the qualified immunity
analysis, the court must objectively “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) (quoting Saucier, 533 U.S. at 201); see also Gruenke v. Seip, 225 F.3d
290, 299 (3d Cir. Pa. 2000). Because the state actor’s specific conduct must
be examined, the court must make “a careful examination of the record . . . to
establish, for purposes of summary judgment, a detailed factual description
of the actions of each individual defendant (viewed in a light most favorable
to the plaintiff).” Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996);
see also Gruenke, 225 F.3d at 300.
12

Should factual disputes that are material to the qualified immunity
analysis remain at the summary judgment stage, then Third Circuit precedent
requires that the questions of fact go to a jury. Curley v. Klem, 499 F.3d 199,
210 (3d Cir. 2007); Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir.
2006) (“[W]hen qualified immunity depends upon disputed issues of fact,
those issues must be determined by the jury.”); Zorbah v. Sch. Dist., 2014 WL
535242, *6 (E.D. Pa. Feb. 10, 2014) (“[W]hen the issue of qualified immunity
requires resolution of factual disputes, the court must defer consideration of
immunity until the factual issues are resolved by a jury.”); see also McKoy v.
Carter, 543 Fed. Appx. 231, 235 (3d Cir. 2013) (not precedential authority).
Judge Schwab, relying on Monteiro v. City of Elizabeth, rejected the
defendant’s qualified immunity claim under the second prong because it was
based upon disputed facts, namely, that the defendant saw “an exchange of
money for an object that Mawson secreted in his pocket.” (Doc. 90, p. 22).
While the court agrees with Judge Schwab’s analysis of the applicable law
and factual disputes, we find that she ended the qualified immunity inquiry
prematurely for two reasons. First, the court must analyze whether the law
was clearly established as to the plaintiff’s, the non-moving party’s version of
the facts. If the law is not clearly established as to both the plaintiff’s version
of the facts and the defendant’s version of the facts, then any factual dispute
will be immaterial to the qualified immunity analysis, thus warranting summary
13

judgment on the ground of qualified immunity. Second, as the defendant
asserts in his objections, his qualified immunity argument, under prong two of
the analysis, does not depend upon disputed facts; on the contrary, the
defendant states that he relies solely upon undisputed facts to establish
qualified immunity: that “Officer DeSimone witnessed a hand-to-hand money
exchange at a place known for drug trafficking late in the evening with a
known addict.” (Doc. 92, ¶ 6).6 If all facts material to the qualified immunity
assessment are undisputed, then the court need only determine whether the
undisputed facts satisfy the second prong of the analysis.
Thus, the defendant’s qualified immunity defense essentially rests upon
whether the law is clearly established that a police officer would not have
reasonable suspicion to conduct a Terry stop in the following factual scenario:
a money exchange with a known drug user, witnessed by an experienced

6

The defendant, in his objections, accurately notes that all his
submissions to the court relating to qualified immunity solely rely upon facts
that are undisputed. (Doc. 93, p. 14 (citing Doc. 71, pp. 10-14; Doc. 76, pp. 15)). The only potentially disputed fact that the defendant references in support
of his argument for qualified immunity is the fact that the incident occurred
“after midnight.” See Doc. 71, p. 11. The plaintiff, on the other hand, provided
affidavits that indicate that the incident took place “at night” rather than after
midnight. (Doc. 87, ¶¶ 2, 4). While Judge Schwab correctly states in the R&R,
“at night” and “after midnight” are not necessarily inconsistent or disputed,
(Doc. 90, p. 9, footnote 4), this court will view the facts in the light most
favorable to the plaintiff and treat the incident as occurring “at night” for the
purposes of qualified immunity.
14

police officer at night, in a high-crime area. The court will review the law to
determine whether this prong of the analysis can be established under the
abovementioned, undisputed facts.
As stated above, a law is clearly established if a reasonable police
officer would know that his conduct in a particular situation violated clearly
established law. Saucier v. Katz, 533 U.S. 194, 202 (2001). “In other words,
‘existing precedent must have placed the statutory or constitutional question
beyond debate,’” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (quoting
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011)), in such way that a police
officer would be on notice that his conduct violated the law. See Bayer v.
Monroe County Children & Youth Services, 577 F.3d 186, 193 (3d Cir. 2009).
There need not be a controlling case directly on point, however, the Supreme
Court has explained that clearly established law requires “cases of controlling
authority . . . at the time of the incident which clearly established the rule on
which they seek to rely. . . [or] a consensus of cases of persuasive authority
such that a reasonable officer could not have believed that his actions were
lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999); Ashcroft, 131 S.Ct. 2074,
2084 (2011) (citing Wilson, 526 U.S. at 617).
At the time of the alleged violation, the Supreme Court case Terry v.
Ohio and its progeny governed the defendant’s actions. Terry v. Ohio, 392
U.S. 1 (1968). The Supreme Court in Terry held that law enforcement may
15

conduct brief investigatory stops when an “officer has a reasonable,
articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528
U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30) (emphasis added). “[I]n
determining whether the officer acted reasonably in such circumstances, due
weight must be given, not to his inchoate and unparticularized suspicion or
‘hunch,’ but to the specific reasonable inferences which he is entitled to draw
from the facts in light of his experience.” Terry v. Ohio, 392 U.S. at 27; see
also Wardlow, 528 U.S. at 123-24. This requires “at least a minimal level of
objective justification for making the stop.” Wardlow, 528 U.S. at 123; United
States v. Brown, 765 F.3d 278, 290 (3d Cir. 2014). Objective justification is
based upon the totality of the circumstances, which may include an
individual's location, a history of crime in the area, an individual's nervous
behavior and evasiveness, and an officer's commonsense judgments and
inferences about human behavior. Johnson v. Campbell, 332 F.3d 199, 206
(3d Cir. 2003) (citing Wardlow, 528 U.S. at 124-25; United States v. Arvizu,
534 U.S. 266, 273 (2002)); see also United States v. Goodrich, 450 F.3d 552,
561-62 (3d Cir. 2006) (holding that an individual’s presence in a high-crime
area and the lateness of the hour of the stop are factors that support an
inference of criminal activity and a finding of reasonable suspicion). Each of
these factors alone may not justify a Terry stop; however, taken together, they
may raise the level of suspicion to satisfy the reasonable suspicion standard.
16

Wardlow, 528 U.S. at 124; Goodrich, 450 F.3d at 561. Finally, police officers
may “draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to
them that ‘might well elude an untrained person.’” Arvizu, 534 U.S. at 273
(quoting United States v. Cortez, 499 U.S. 411, 418 (1981)).
In the instant action, the defendant, a police officer trained and
experienced in drug deals, was conducting surveillance for suspected drug
transactions outside Stephanie’s Bar, a place known for drug trafficking. The
defendant conducted his surveillance at night and observed the plaintiff
exchange money with a known drug user outside the bar. In his objections,
the defendant states that the “Third Circuit has held that these facts support
reasonable suspicion” or probable cause, a much higher standard. (Doc. 93,
p. 19). Thus, the defendant concludes that the law is clear not that the
defendant’s behavior was a violation of the Fourth Amendment, but rather that
the defendant’s behavior was constitutional.
The defendant first cites to three Court of Appeals cases, two of which
come from the Third Circuit, with similar facts that were held to support
reasonable suspicion. (Doc. 93, p. 19). However, upon reviewing these cases,
this court concludes that each is distinguishable from the facts relating to the
plaintiff’s case. Though similar because they involve money exchanges in high
crime areas, these cases also include additional significant facts that weigh
17

in favor of reasonable suspicion and are not present in this case. E.g. United
States v. Smith, 282 F. App’x 143 (3d Cir. 2008) (finding a money exchange
in a high crime area coupled with flight by the suspect and a police chase
amounted to reasonable suspicion); United States v. McGlory, 968 F. 2d 309
(3d Cir. 1992) (finding an exchange of cash between a suspect and a known
drug trafficker, who had an established modus operandi, in a high-crime
location, late at night amounted to reasonable suspicion); United States v.
Williams, 139 F. 3d 628, 630 (8th Cir. 1998) (finding that an experienced
narcotics officer had reasonable suspicion to stop the defendant when he
observed an exchange of money for an object between a suspected drug
trafficker in a high-crime area, at night).
The defendant claims that “many courts” have found that officers had
probable cause, an even higher standard, to arrest under similar
circumstances. (Doc. 93, p.20-21). However, the cases that defendant cites,
which are all from outside this circuit, are factually distinct and simply cloud
the analysis as to what constitutes reasonable suspicion. See, e.g., Smith v.
Tobon, 529 F. App’x 36, 39 (2d Cir. 2013) (not-precedential); United States
v. Burciaga-Burciaga, 147 F. App'x 725, 730 (10th Cir. 2005); United States
v. White, 655 F.2d 1302, 1304 (D.C. Cir. 1981); United States v. Roland, 2012
WL 74989, at *5 (S.D.N.Y. Jan. 10, 2012); United States v. Garcia, 2010
WL1416993, at *4 (D. Minn. Mar. 22, 2010), report and recommendation
18

adopted, 2010 WL 1416984 (Apr. 7, 2010), aff'd, 646 F.3d 1061 (8th Cir.
2011); United States v. Washington, 2003 WL 21250681, at *3 (S.D.N.Y. May
29, 2003). Though the listed cases have many factual distinctions–ranging
from the presence of informants’ tips, controlled purchases, to targeted
surveillance–the most notable difference between all of the cases and the
present action, is that the police agents in these cited cases observed money
exchanged for an object. The undisputed facts in this case do not include
money exchanged for any object at all. In addition, the defendant cites to a
Supreme Court opinion denying certiorari, in which the dissent states that
probable cause would be present when a police officer observes a hand-tohand drug deal in a high-crime area. (Doc. 93, p. 21 (citing Pennsylvania v.
Dunlap, 555 U.S. 964 (2008)). This opinion once again notes that the police
officer observed money exchanged for an object, which is not the case here.
Moreover, the Supreme Court opinion cited is a dissent, which is non-binding
upon this court and this jurisdiction.
Ultimately, there is an abundance of case law explaining and identifying
what constitutes “reasonable suspicion” under slightly similar circumstances.
However, in our review of the both the relevant case-law and the case-law
presented by the defendant, this court was unable to locate a case whose
facts were directly analogous. Many cases, as mentioned above, included
similar facts, but none contained the same or nearly the same combination of
19

relevant facts as those present in the plaintiff’s case, such that a police officer
would definitively conclude that his actions were a violation of the Fourth
Amendment. Though this court did not find binding or strongly persuasive
authority expressly prohibiting a Terry stop under analogous factual
circumstances,7 this court also did not, as the defendant would like the court
to believe, find binding or strongly persuasive authority establishing that these
facts clearly amount to reasonable suspicion or probable cause.
Thus, the law regarding Terry investigative stops at the time of the
incident as it pertains to the specific, undisputed facts of this case is not
clearly established. No binding precedent and no clear consensus amongst
persuasive authority demonstrates that the defendant should have known that

7

The closest this court came to finding a case to support the plaintiff’s
claim that the defendant clearly did not have reasonable suspicion was the
district court opinion United States v. McCray. United States v. McCray, 148
F. Supp. 2d 379, 387-88 (D. Del. 2001). In McCray, two police officers
observed two individuals standing near a loiterer who was known for drug
activity in a high-crime area, but the officers did not observe any exchange or
any objects pass between the parties. Id. at 387-88. The court determined that
these facts, “without more, merely constitute[ ] an ‘inchoate and
unparticularized suspicion,’ and cannot justify a Terry stop.” Id. However,
McCray is distinguishable in a significant way, namely, the fact the individuals
were solely in close proximity and there was no exchange of any kind. In the
instant case, the suspected individuals, including the plaintiff, were standing
and talking together and exchanged money. While the facts in McCray do not
amount to reasonable suspicion, the additional facts in the instant case –i.e.
existence of an observed monetary exchange–may raise the level of suspicion
beyond the constitutional threshold.
20

his actions violated clearly established law under the circumstances.
While Judge Schwab was correct to note that factual disputes remain,
the defendant’s decision to conduct a Terry stop on the night in question was
based upon undisputed material facts. No factual disputes remain that are
material to the qualified immunity analysis, therefore, regardless of which
version of the facts is analyzed, the defendant is entitled to qualified immunity
for his decision to stop the plaintiff because his actions do not violate clearly
established law.

2.

The Law Does Not Clearly Establish that the Stop Was
De Minimis

The defendant next objects to Judge Schwab’s determination that the
Terry stop was not de minimis. The defendant states that Judge Schwab
relied upon this court’s ruling on the motion to dismiss and failed to analyze
“whether the law is clear that the stop rose above the de minimis level.” (Doc.
92, p. 4); (Doc. 93, p. 22). Unlike the motion to dismiss, the defendant argues
that the instant motion for summary judgment is based on the defendant’s
alleged qualified immunity status and must be examined within that context.
The defendant would like this court to find a lack of clearly established law
such that the defendant’s conduct during the Terry stop on the night of the
incident would fail to satisfy prong two of the qualified immunity analysis, and
21

would therefore entitle the defendant to qualified immunity for the scope and
quality of the stop. The defendant concludes that Judge Schwab erred by
failing to analyze whether the case-law clearly establishes that the
circumstances in this case rise above the de minimis threshold.
As stated in Terry v. Ohio, an investigative or Terry stop must undergo
a dual inquiry to determine its reasonableness: “whether the officer's action
was justified at its inception, and whether it was reasonably related in scope
to the circumstances which justified the interference in the first place.” United
States v. Sharpe, 470 U.S. 675, 682 (1985) (quoting Terry v. Ohio, 392 U.S.
1, 20 (1968)). Up to this point, the court has discussed the first part of the
inquiry, whether the defendant is entitled to qualified immunity for his initial
decision to conduct an investigative stop of the plaintiff. The court now must
analyze the scope of that investigative stop and whether the law was clearly
established that the scope and quality of the stop clearly constituted a
violation of the Fourth Amendment. Again, for the purposes of qualified
immunity, the court must determine whether the facts–taken in the light most
favorable to the non-moving party–establish a violation of clearly established
law and that a reasonable officer would know his actions to be in violation of
such law. See supra. The relevant facts are heavily disputed by both parties,
and unlike the previous analysis regarding initiation of the stop, the defendant

22

does not solely rely on undisputed facts to establish qualified immunity.8 The
relevant facts, taken in the light most favorable to the plaintiff, the non-moving
party, were set forth by Judge Schwab as follows:
According to Mawson, DeSimone approached him, blocked his
car in, and said “Empty your pockets,” to which Mawson
responded no and said that DeSimone was harassing him
because he had filed a civil suit against the police department.
Doc. 87 at 7. Mawson contends that DeSimone then again
ordered him to empty his pockets, and when he was momentarily
quiet, DeSimone called for back up. Id. Mawson then reached into
his pocket, removed his wallet from his pocket, opened his wallet,
and showed it to DeSimone. Id. According to Mawson, DeSimone
then ordered Mawson to give him his I.D., and DeSimone took
Mawson’s I.D. and ran a lengthy warrant check on everyone. Id.
at ¶¶7-8. Mawson contends that it was during a warrant check on
Sult that DeSimone discovered that there was a warrant for Sult
and that DeSimone had called for back up before he discovered
the warrant for Sult. Id. at ¶8. Further, although DeSimone
contends that two back up officers arrived, Mawson contends that
more than two back up officers arrived. Id. Further, whereas
DeSimone contends that encounter lasted only about a half an
hour, see doc. 76 at 10, Mawson points to the deposition
testimony of Edward Matyjevich that the encounter lasted nearly
an hour. See Doc. 73 at 16; Doc. 73-4 at 29.
The law as it applies to the plaintiff’s version of the facts clearly provides that
the length, intensity, and nature of the stop may establish a Fourth
Amendment violation.
Terry v. Ohio provides that after initially stopping an individual, the
scope of the stop must be “strictly tied to and justified by the circumstances
8

In fact, the defendant does not cite or rely upon any facts to support
his assertion that the stop was de minimis. (Doc. 93, pp. 22-26).
23

which rendered its initiation permissible.” Terry v. Ohio, 392 U.S. 1, 19 (1968)
(internal quotations and citations omitted). The Supreme Court further
explained in Florida v. Royer

that “an investigative detention must be

temporary and last no longer than is necessary to effectuate the purpose of
the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). And, the Supreme Court
again examined the scope of an investigative Terry stop in United States v.
Place; the Court stated “in assessing the effect of the length of the detention,
we take into account whether the police diligently pursue[d] their
investigation.” United States v. Place, 462 U.S. 696, 709 (1983) (holding
luggage over ninety minutes was a prolonged seizure and exceeded limits of
investigative stop under Terry). Finally, the Supreme Court, in United States
v. Sharpe, synthesized the holdings of Terry, Royer, and Place to articulate
a clear rule regarding the duration and scope of investigative stops:
In assessing whether a detention is too long in duration to be
justified as an investigative stop, we consider it appropriate to
examine whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the
defendant. A court making this assessment should take care to
consider whether the police are acting in a swiftly developing
situation, and in such cases the court should not indulge in
unrealistic second-guessing.
United States v. Sharpe, 470 U.S. 675, 686 (1985) (citations omitted) (Court
held that a detention of defendant for 20 minutes while original officer waited
for a narcotics officer to arrive and defendant’s attempts to evade the
24

narcotics officer contributed to delay was reasonable). This inquiry requires
the court to take into account the totality of the circumstances. The Third
Circuit has applied this rule and more explicitly provided that “[i]n considering
whether a stop is so minimally intrusive as to be justifiable on reasonable
suspicion, courts consider the duration of the stop, the law enforcement
purposes justifying the stop, whether the police diligently sought to carry out
those purposes given the circumstances, and alternative means by which the
police could have served their purposes.” United States v. Leal, 235 Fed.
Appx. 937, 941 (3d Cir. 2007).
Furthermore, while the Supreme Court has acknowledged that “[t]here
is, of course, a de minimis level of imposition with which the Constitution is not
concerned,” Ingraham v. Wright, 430 U.S. 651, 674 (1977), few courts have
applied the doctrine and even fewer come from the Third Circuit. See United
States v. Hernandez, 418 F.3d 1206, 1212 n. 7 (11th Cir.2005) (“Of trifles the
law does not concern itself: De minimis non curat lex.”); United States v.
Broomfield, 417 F.3d 654, 656 (7th Cir. 2005); Ford v. Wilson, 90 F.3d 245,
248 (7th Cir.1996).
Viewing the plaintiff’s version of the facts, an hour long detention of the
plaintiff is not a brief, momentary seizure. As soon as the plaintiff emptied his
pockets, the defendant became aware that the plaintiff did not have
possession of any drugs as a result of the monetary exchange. Because the
25

defendant’s investigative stop was premised upon his “reasonable suspicion”
that a drug transaction had occurred between the plaintiff and the two others
with whom he was standing, once the defendant became certain that the
plaintiff did not have any drugs, his suspicions concerning the drug transaction
were dispelled. Without additional facts to establish a new or renewed
reasonable suspicion after the plaintiff emptied his pockets, the defendant has
failed to demonstrate that he had a lawful purpose in detaining the plaintiff for
nearly one hour.9 In addition, there are no facts presented by the parties to
indicate that the defendant in any way feared for his safety and detained the
plaintiff to avoid risk of immediate harm. The law clearly establishes that this
factual pattern constitutes an unreasonable seizure in violation of the Fourth

9

The court finds, upon viewing the facts in the light most favorable to
the plaintiff, that the plaintiff was seized for the purposes of the Fourth
Amendment. A person has been seized, “if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he
was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554(1980).
The controlling test is “whether the officer's words and actions would have
conveyed that [the person was not free to leave] to a reasonable person.”
California v. Hodari D., 499 U.S. 621, 628 (1991); see also United States v.
Brown, 448 F.3d 239,245 (3d Cir.2006). The following facts demonstrate that
a reasonable person in plaintiff’s position would not feel free to leave: the
defendant’s police vehicle blocked the plaintiff’s car; the defendant demanded
that the plaintiff “empty his pockets;” the defendant called and received the aid
of at least two back up officers; and the defendant gained possession of and
held onto the plaintiff’s identification. As soon as the plaintiff complied with the
defendant’s demand that he empty his pockets, thus, submitting to the
officer’s authority, the stop constituted a Fourth Amendment seizure.
26

Amendment. The law does not, as the defendant argues, establish that these
facts constitute a de minimis violation. In fact, the defendant has not
presented the court with any case that establishes a de minimis constitutional
injury resulting from an hour long Terry stop, never mind resulting from a Terry
stop where the defendant’s suspicion was quickly dispelled and the plaintiff
was innocent of wrongdoing. Once again, in support of the his de minimis
argument, the defendant “cite[s] a bevy of cases outside of this circuit and
also analogize[s] malicious prosecutions claims from within this circuit.” (Doc.
33, p. 20). None of the cases cited contain analogous facts to the present
action, and none of the cases cited clearly establish a de minimis violation.
This court finds that the facts taken in the light most favorable to the
plaintiff may establish a violation of the Fourth Amendment that is actionable
and not de minimis. In addition, the length of detention as well as other
pertinent facts are disputed by both parties, such that the defendant might be
entitled to qualified immunity under his version of the facts. Because these
factual disputes are material to the qualified immunity analysis, the Third
Circuit requires that summary judgment be denied and the questions of fact
go to a jury. See Curley v. Klem, 499 F.3d 199, 210 (3d Cir. 2007). Therefore,
the defendant’s objection on the grounds that the law is unclear as to whether
the scope and extent of his actions during the stop of the plaintiff constitute a
de minimis violation is overruled, and the defendant’s motion for summary
27

judgment on the ground that he is entitled to qualified immunity is denied as
it relates to the scope and extent of the Terry stop.

3.

The Plaintiff’s Claim Was Not Economically Frivolous

The defendant asserts that while Judge Schwab found that the plaintiff’s
claims are not substantively frivolous, she “failed to address [the defendant’s]
argument that Mawson’s claim is economically frivolous.” (Doc. 93, p. 26)
(emphasis in original). The defendant states that the claim is economically
frivolous because “a normal person would not spend $400 to file suit” in a
case such as this one. (Doc. 93, p. 28).
In cases where litigants proceed in forma pauperis, Section 1915(e)(2)
of the United States Code requires the court to “dismiss the case at any time
if the court determines that . . . the action or appeal . . . is frivolous or
malicious.” 28 U.S.C. §1915(e)(2). An action is frivolous where “the court
determines that the claim is: (1) of little or no weight, value, or importance; (2)
not worthy of serious attention; or (3) trivial.” Deutsch v. United States, 67
F.3d 1080, 1082 (3d Cir. 1995). For the purposes of a frivolousness
determination, a litigant’s claim is trivial when,
the record supports a finding that a reasonable paying litigant
would not have filed the same claim after considering the costs of
suit. Accordingly, the court must first find the actual amount in
controversy under the claim presented and determine whether the
amount in controversy is less than the expense of the court costs
28

and filing fees. If the court so determines, then the claim is a
candidate for dismissal as frivolous under §1915(d).
The court must next determine whether the litigant has a
meaningful nonmonetary interest at stake under the claim, such
that service of the complaint and an allocation of the court's
resources for its adjudication is warranted, despite the fact that
the claim is economically trivial. If, in addition to finding that the
amount of damages in controversy is less than the court costs
and filing fees, the court is satisfied that there is no other
meaningful interest at stake, then the suit is frivolous within the
meaning of §1915(d).
Deutsch, 67 F.3d at 1089-90. Moreover, Third Circuit has held: when there is
“doubt as to whether the actual amount in controversy is economically trivial,
or [ ] doubt as to whether the claim is meaningful, then the plaintiff must be
given the benefit of that doubt, for we do not intend that courts use monetary
worth as an excuse to brush legitimate grievances aside." Id. at 1091.
Here, the defendant simply states that the $400 filing fee is less than the
amount in controversy and is an amount that no reasonable person would
spend on this lawsuit. However, both the defendant’s brief supporting his
motion for summary judgment and his objections to the R&R fail to include
any evidence to support a finding that the plaintiff has no “meaningful
nonmonetary interest at stake.” The plaintiff, on the other hand, provides
ample support demonstrating that he has a meaningful nonmonetary interest.
He states throughout his submissions to the court that his Fourth Amendment
Rights were violated and he deserves compensation; and, in his reply to the
29

defendant’s objections, the plaintiff emphasizes the stress and hardship he
has undergone as a consequence of the defendant’s actions. (Doc. 95, p. 14).
The court overrules the defendant’s objection and adopts Judge Schwab’s
conclusion that this action is not frivolous under 28 U.S.C. §1915(e)(2).

4.

Plaintiff’s Claim Was Not Malicious

Finally, the defendant objects to Judge Schwab’s determination that the
plaintiff’s action is not malicious under 28 U.S.C. §1915(e)(2). The defendant
supports this contention by noting that Judge Schwab failed to properly
analyze the term “malicious” and failed to review the plaintiff’s history of
frivolous suits. (Doc. 93, p. 28). Though Judge Schwab did not explicitly define
the term and the legal standard, this court agrees with her application of the
law and conclusion that the plaintiff’s current action is not, per se, malicious.

As mentioned above, the court is compelled to dismiss an action
commenced by a litigant in forma pauperis “if the court determines that . . . the
action or appeal . . . is frivolous or malicious.” 28 U.S.C. §1915(e)(2). To
determine whether an action is malicious, courts must “engage in a subjective
inquiry into the litigant's motivations at the time of the filing of the lawsuit to
determine whether the action is an attempt to vex, injure or harass the
30

defendant.” Deutsch v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995).
Several district courts within the Third Circuit further explain that courts must
look to whether the litigant has engaged in repetitive litigation and relitigation
of claims from prior cases when examining maliciousness. See, e.g., Alford
v. Laquise, No. 3:14-CV-13, 2014 WL 3368874 (M.D. Pa. July 9, 2014) aff'd,
604 F. App'x 93 (3d Cir. 2015); Pickering-George v. United States Attorney’s
Office, No. 13-126-SLR, 2013 WL 1897841 (D. Del. May 7, 2013), aff'd sub
nom. Daley v. United States Attorneys Office, 538 F. App'x 142 (3d Cir. 2013);
Trader v. R.S., No. 11-0039 PGS, 2011 WL 1666931, at *2 (E.D. Pa. May 2,
2011) (“[A] complaint is malicious . . . if it is repetitive or evidences an intent
to vex the defendants or abuse the judicial process by relitigating claims
decided in prior cases.”); Fiorani v. Hewlett Packard Corp., 547 F. App'x 103,
105 (3d Cir. 2013) ("Repetitive litigation undoubtedly is some evidence of a
litigant's motivation to vex or harass a defendant where it serves no legitimate
purpose.") (unpublished opinion).
In support of a finding of maliciousness, the defendant points to the
plaintiff’s myriad “unnecessary filings” that “flooded” the docket. (Doc. 93, p.
28). However, maliciousness is determined by the motivation of a litigant at
the time of filing the lawsuit, not his motivation for filing documents after
commencement and throughout the lawsuit. Deutsch, 67 F.3d at 1086.
Therefore, the volume and alleged frivolousness of the plaintiff’s filings
31

throughout the case have little or no weight in determining maliciousness.
In reviewing prior actions commenced by the plaintiff, this court does not
find that these actions evidence an intent to vex or harass the defendants or
abuse the judicial process in this case. The first three cases cited by the
defendant in his objections dealt with issues arising from custody of his
children and were not (as the defendant suggests) dismissed due to
frivolousness. Mawson v. Court of Common Pleas of Luzerne Cnty., PA, 229
F. App'x 185, 186 (3d Cir. 2007); Mawson v. Lamoreaux, No. 3:12–cv-2413,
2013 WL 451865, at *1 (M.D. Pa. Feb. 6, 2013); Mawson v. Bellino, No. 3:12cv-2422 (Dec. 5, 2012), report and recommendation adopted (M.D. Pa. Feb.
28, 2013). Mawson v. Court of Common Pleas was dismissed for failure to
state a claim because the defendant was not a legal entity for the purposes
of §1983 liability, and Mawson v. Lamoreaux was dismissed because the
plaintiff failed to establish subject matter jurisdiction.10 The defendant also
cited Mawson v. Bellino, wherein the court dismissed the complaint for lack
of federal jurisdiction, but specifically noted that the plaintiff may have legal
remedies and should refile the complaint in state court. Mawson v. Bellino,
No. 3:12-cv-2422 (Dec. 5, 2012), report and recommendation adopted (M.D.

10

In Mawson v. Lamoreaux, the court specifically dismissed the claim
without prejudice so that the plaintiff may correct deficiencies and refile the
complaint.
32

Pa. Feb. 28, 2013). The facts arising from these three prior actions are distinct
from those at issue in this case, as they relate to child custody matters.
Finally, the last two cases cited by the defendant occurred over fifteen
years prior to this case and dealt with completely distinct facts; at the time of
these cases, the plaintiff was an inmate at Lackawanna County Prison
complaining about unconstitutional prison conditions. Mawson et al. v.
Fedorchak et al., No. 1:98-cv-01799 (M.D. Pa. July 2, 1999) (defendants
motion for summary judgment granted and case closed); Mawson v. Ross,
No. 1:98-cv-1628 (M.D. Pa. Nov. 18, 1998) (dismissed as frivolous, but
without prejudice to the filing of a habeas corpus petition against a proper
respondent after exhaustion of state court remedies). Of all the cases filed by
the plaintiff, the only case that was deemed frivolous was Mawson v. Ross,
a prisoner complaint from 1998. This, alone, does not indicate a history of
frivolous lawsuits that would support maliciousness in filing the instant action.
All five of these prior cases raise facts that are completely distinct from
the facts of this case, and thus do not constitute repetitive litigation or
relitigation of prior claims. Judge Schwab’s conclusion was correct that
without any evidence to demonstrate that the plaintiff brought “this claim in an
attempt to vex, injure, or harass the defendant,” his history of litigation “does
not show that Mawson’s current claim is malicious.” (Doc. 90, p. 14). The
defendant’s objection that the current claim should be dismissed for
33

maliciousness is overruled.
The court has reviewed Judge Schwab’s analysis of the material facts
in this case as well as her conclusions. The court agrees, substantially, with
the sound reasoning that led Judge Schwab to the conclusions in her report.
However, upon reviewing the plaintiff’s and the defendant’s objections, the
court partially departs from Judge Schwab’s recommendation and finds that
the defendant is entitled to qualified immunity insofar as it relates to the
defendant’s initial stop of the plaintiff. However, the defendant is not entitled
to qualified immunity for his subsequent actions contributing to the scope and
duration of the stop.

IV.

CONCLUSION
For the foregoing reasons, the R&R issued by Judge Schwab, (Doc. 90),

is ADOPTED IN PART and NOT ADOPTED IN PART as noted above. An
appropriate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: November 18, 2015
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2013 MEMORANDA\13-1714-02.wpd

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