ANSELL v. ROSS TOWNSHIP et al
Filing
99
MEMORANDUM OPINION RE: Defendants' Motions for Summary Judgment. Doc. Nos. 66 , 68 , 70 and 74 . An appropriate Order follows. Signed by Judge Arthur J. Schwab on 3/28/2012. (lcb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WILLIAM ANSELL,
Plaintiff,
09cv1398
ELECTRONICALLY FILED
v.
ROSS TOWNSHIP, ET AL.,
Defendants.
MEMORANDUM OPINION RE: DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT (DOC. NOS. 66, 68, 70 & 74)
I.
Introduction
This matter comes before the Court on four separate motions for summary judgment filed
by the Defendants pursuant to Federal Rule of Civil Procedure 56. Doc. Nos. 66, 68, 70 & 74.
For the reasons that follow, three of the motions (Doc. Nos. 66, 70 & 74) will be granted, and the
remaining motion (Doc. No. 68) will be granted in part and denied in part.
II.
Background
Plaintiff William Ansell (“Ansell”) is a fifty-seven-year-old male.1 Doc. No. 80-28, 3.
Ansell married Nancy Ansell (“Nancy”) in October 1976. Doc. No. 94, ¶ 127. The Ansells
maintained their residence in New Castle, Pennsylvania. Id., ¶ 128. Their two daughters,
Valerie Ansell (“Valerie”) and Julia Ansell (“Julia”), were born in 1978 and 1980, respectively.
Id., ¶ 129.
Ansell and Nancy separated in 1983 and divorced in 1985. Id., ¶ 127; Doc. No. 77-9, 5.
Ansell continued to reside in New Castle in the immediate aftermath of the divorce. Doc. No.
94, ¶ 128. At some point between 1983 and 1985, the Court of Common Pleas of Lawrence
1
The documentary record indicates that Ansell was born on January 31, 1955. Doc. No. 80-28, 3.
1
County ordered Ansell to provide Nancy with child-support payments. Id., ¶ 153; Doc. No. 779, 3. Ansell was initially allowed to see Valerie and Julia during the first three weekends of each
month. Doc. No. 77-9, 5. Nancy later accused Ansell of molesting their daughters. Id., 3, 5.
Ansell’s visitation rights were terminated as a result of Nancy’s allegations. Id., 3. Due to the
termination of his visitation rights, Ansell decided not to make child-support payments to Nancy.
Doc. No. 94, ¶¶ 152-154.
In 1987, Ansell moved to a residence owned by his brother, Robert Ansell (“Robert”).
Doc. No. 94, ¶¶ 123-124. The residence is located at 109 Fairley Road in Ross Township,
Pennsylvania. Id., ¶¶ 1, 123. After moving into the residence, Ansell periodically visited his
sister, Joann, who resided in Golden, Colorado. Id., ¶ 126. He did not see Valerie or Julia
between 1987 and 1996. Id., ¶ 130.
Between 1995 and 2006, Ansell was arrested at least four times for failing to pay child
support or failing to appear at contempt hearings. Id., ¶¶ 156-159. Although Ansell made some
payments to Nancy in order to “purge himself from contempt,” he did not make the monthly
payments that he was required to make pursuant to the terms of the applicable court orders. Id.,
¶ 155. In January 2006, Ansell spent four days in jail for failing to keep his payments current.
Id., ¶ 159.
On July 23, 2007, the Court of Common Pleas of Allegheny County issued a warrant for
Ansell’s arrest. Doc. No. 80-28, 1-2. The warrant was issued because Ansell had failed to
appear for a scheduled compliance hearing. Id. The Allegheny County Sheriff’s Department
(“Sheriff’s Department”) decided to execute the warrant on the morning of October 18, 2007.
Doc. No. 94, ¶ 72. Ross Township police officers Michael Orsino (“Orsino”), James Fitch
2
(“Fitch”) and David Sciullo (“Sciullo”) were sent to Ansell’s residence to assist the Sheriff’s
deputies in their efforts to execute the warrant. Id., ¶¶ 72, 234.
Orsino and Sciullo knocked on Ansell’s door and announced their presence. Id., ¶ 74.
Ansell allegedly did not hear the officers because of a hearing impairment. Id. Orsino and two
Sheriff’s deputies, Vincent Longo (“Longo”) and Ronald Stokes (“Stokes”), entered the
residence through a garage. Id., ¶¶ 75, 272. They apparently opened the garage door by using a
remote control device that Longo had retrieved from Ansell’s car. Id., ¶¶ 267, 268. After
entering the residence, the deputies observed that Ansell possessed hunting equipment and
shotgun shells. Id., ¶ 269. Ansell was lying in bed on his back. Id., ¶¶ 167, 188. He heard
someone scream, “Warrant search!” Id., ¶ 166. After hearing the sound of the approaching law
enforcement officials, Ansell sat up in his bed. Id., ¶ 168. A .38 charter arms revolver was
hanging from Ansell’s left bedpost in a brown leather holster. Id., ¶¶ 169-170. A box of shells
was located inside of a nearby nightstand. Id., ¶ 79. Orsino and the deputies found Ansell in his
bedroom. Id., ¶ 76. Ansell was pulled onto the floor by his leg. Id., ¶ 176. While the deputies
attempted to take Ansell into custody, Orsino observed the revolver hanging from Ansell’s
bedpost. Id., ¶ 77. As Ansell was being placed under arrest, Orsino searched the dresser and
nightstand located inside of the bedroom.2 Id., ¶¶ 81-82. The deputies took Ansell out of the
bedroom and held him in an adjacent corner.3 Id., ¶ 85. At that point, Ansell had not yet been
placed in handcuffs. Id., ¶ 187.
Ansell was taken from the corner and seated in a chair next to his kitchen table. Id., ¶
186. He was subsequently placed in handcuffs. Id., ¶ 192. Detective Martin George (“George”)
2
There is a factual dispute as to whether Orsino physically secured the revolver during the course of the arrest. Doc.
No. 94, ¶ 80.
3
There is a factual dispute as to whether the deputies “escorted” or “dragged” Ansell out of the bedroom. Doc. No.
94, ¶ 85.
3
entered the residence shortly after learning that Ansell had been taken into custody. Id., ¶ 281.
Although Ansell asked to be provided with his dentures, the deputies denied that request. Id., ¶
189. The deputies gave Ansell pairs of his shoes and socks while he was seated in the kitchen.
Id., ¶ 191. They later escorted him out of the residence and into a police car. Id., ¶ 193.
Ansell’s feet were shackled before he was placed inside of the police car. Id., ¶ 194. George
temporarily removed the handcuffs so that Ansell could put on a shirt. Id., ¶ 195.
George proceeded to drive Ansell into downtown Pittsburgh. Id., ¶¶ 197-198. The police
car arrived at Mellon Arena at approximately 8:00 A.M. Id., ¶ 200. George stopped the car at
Mellon Arena, spoke with several people standing nearby, and made a quick call on his cellular
telephone. Id., ¶ 198. Although the warrant specified that Ansell was to be delivered “into the
custody of the Court of Common Pleas,” it also contained language directing that he be held at
the Allegheny County Jail (“County Jail”) until that court was open for business in the event that
he was taken into custody at a time when the court was “unavailable.” Doc. No. 80-28, 1-2.
Since the Court of Common Pleas had not yet opened for business, George transported Ansell to
the County Jail. Doc. No. 94, ¶ 289.
After arriving at the County Jail, Ansell was taken to a stall located in the “intake” area.
Id., ¶ 330. He was instructed to completely disrobe4 in the presence of a male corrections
officer. Doc. No. 77-11, 6. His clothes were confiscated, and a “red jump suit” was given to
him. Id., 5. He was not touched by the corrections officer during this encounter. Doc. No. 94, ¶
340. The County Jail maintained a policy prohibiting the acceptance of any individual who was
in need of immediate medical attention. Id., ¶ 294. After changing into the standard prison
attire, Ansell was examined by a nurse and medically cleared to enter the prison population.
4
The parties disagree as to whether Ansell’s compelled disrobing constituted a “visual body inspection” or a “strip
search.” Doc. No. 94, ¶ 329.
4
Doc. No. 77-11, 5; Doc. No. 94, ¶¶ 292-295. Ansell was required to undress and shower in the
presence of a male corrections officer after undergoing the medical examination. Doc. No. 7711, 8; Doc. No. 94, ¶¶ 341-342.
In an order dated October 19, 2007, the Court of Common Pleas of Allegheny County
stated that Ansell and his attorney had appeared for a hearing5 regarding the bench warrant, that
he remained in contempt of the prior orders requiring him to make child-support payments, and
that he was required to make monthly payments to bring himself into compliance with those
orders. Doc. No. 80-26, 23. The bench warrant was dismissed in a separate order issued that
same day. Id., 24. Ansell was released later that evening.6 Doc. No. 94, ¶ 328.
On November 15, 2007, Ansell contacted the Ross Township Police Department
(“RTPD”) and complained that employees of the Public Works Department had blown leaves
into his yard. Doc. No. 94, ¶ 36. Officer Richard D. White (“White”) responded to the call. Id.
After arriving at the scene, White spoke with Peter Castellano (“Castellano”), who was the
Director of Public Works. Id., ¶ 37. Ansell was unable to hear the verbal exchange between
White and Castellano. Id., ¶ 38. White left Ansell’s residence without issuing a citation. Id., ¶
39.
Ross Township’s Board of Commissioners (“Board”) conducted meetings on August 11,
2008, August 25, 2008, and September 8, 2008. Doc. No. 14, ¶¶ 38-39. At each of these
meetings, Ansell claimed that members of the RTPD and the Department of Public Works
(“DPW”) had subjected him to unfair treatment. Id. On October 9, 2008, Ansell and his
neighbor, Randi Grubb (“Randi”), each contacted law enforcement authorities and reported that
the other was illegally using a vehicle to block Fairley Road. Doc. No. 94, ¶ 40. Officer
5
Ansell denies that he and his attorney appeared for a hearing on October 19, 2007. Doc. No. 94, ¶ 324.
6
The precise time of Ansell’s release is disputed by the parties. Doc. No. 94, ¶ 328.
5
Gregory Glenn Garcia (“Garcia”) responded to the calls. Id., ¶ 41. After speaking with Ansell,
Randi, and another resident of Fairley Road, Garcia cited Ansell for driving on the wrong side of
a roadway.7 Doc. No. 14-1, 2. Ansell was ultimately acquitted of the charge.8 Doc. No. 14-2, 4.
On October 31, 2008, Randi’s husband, Vince Grubb (“Vince”), contacted the RTPD and
reported that Ansell had blown leaves into the street. Doc. No. 94, ¶ 43. Officer Peter M.
Chuberko (“Chuberko”) responded to the call and reported to Fairley Road. Id. He ultimately
left the scene without making an arrest or issuing a citation. Id., ¶ 45. In a police report dated
November 3, 2008, Chuberko stated as follows:
Mr. Grubbs called to report that Mr. Ansell is blowing leaves from his yard onto
Fairley Rd. Mr. Grubbs that [sic] two other neighbors witnesses [sic] this as well.
Grubbs also stated that he had pictures of Mr. Ansell blowing the leaves onto the
street. There was a large amount of leaves around the perimeter of Ansell’s
property and Ansell’s yard was fairly clear of fallen leaves. Due to the ongoing
problems, I had patrolled through the area approximately two hours earlier and
there was a considerable amount of fallen leaves in Ansell’s yard which now
appeared to be pushed to the street. I spoke to Bill Ansell’s brother, Robert E.
Ansell, [sic] he wanted to know why I was in the area. I explained that I received
a call about Bill Ansell blowing leaves from his yard onto Fairley Rd. Robert said
that he was not doing this but that the Township DPW blew the leaves into his
yard. I spoke to DPW supervisor Jim Stack. Stack said that to his knowledge no
[sic] of his men were on Fairley Rd. on this date. He also said that the [sic] do not
make it a practice of blowing leaves from the street on to resident’s [sic] property.
Bill Ansell stormed out of the house and began calling the Ross Township police
corrupt and that we take sides and that we are all against him. He called us “a
bunch of sonsabitches, and fucking assholes.” He continued to yell and carry on
in a tumultuous manner. I advised Bill Ansell to cease and desist his behavior
[sic] otherwise I would arrest him for disorderly conduct.
Doc. No. 78-14. The incident was characterized in the report as an alleged “road hazard.” Id.
Ansell, an electrician, typically erects an elaborate light-up display at his residence during
the Christmas season. The display apparently attracts a large number of individuals to Fairley
7
75 PA. CONS. STAT. § 3301.
8
The record indicates that Ansell was acquitted of the charge on April 7, 2009, during a trial conducted in the Court
of Common Pleas of Allegheny County before Judge Robert C. Gallo. Doc. No. 14-2, 4.
6
Road, making it difficult for his neighbors to enter and exit their property. The Pittsburgh
Channel reported on December 16, 2008, that Ansell had displayed the words “Fuck Ross
Township”9 on a sign appearing within the display. Doc. No. 14-4, 2. The report stated that one
of Ansell’s neighbors had seen the sign and “painted over the profanity.” Id. Two days later, the
Pittsburgh Post-Gazette reported that Ansell had turned his Christmas lights on after leaving
them off for four days. Doc. No. 14-5, 2-3. During an interview conducted in connection with
the story, Ansell denied that he had displayed a “profanity-laced sign.” Id., 3. He accused Ross
Township of trying to “punish” him for tying up traffic on Fairly Road. Id. Randi, who was also
interviewed, complained that visitors attempting to observe the display had made it difficult for
her to enter and exit her driveway. Id. Randi further stated that while she had considered
moving, she believed that Ansell’s Christmas display would make it difficult for her to sell her
house at face value. Id. On December 22, 2008, the Board passed Ordinance No. 2275, which
prohibited motorists from parking between homes located within a specified portion of Fairley
Road. Doc. No. 14, ¶ 41(c).
Randi contacted the RTPD on January 3, 2009, and reported that her son had seen Robert
standing on her property. Doc. No. 94, ¶ 48. Chuberko and Officer Albert Hribik (“Hribik”)
proceeded to Fairley Road after receiving the report. Id. No citations were issued. Id., ¶ 49. In
a police report describing the encounter, Chuberko made the following statements:
Mrs. Randi Grubb called the police to report that her 12 year old son observed
Bob Ansell at the edge of their driveway. I asked Mr. Ansell if he was on the
Grubbs [sic] property and he said no. He was in the area that looks like their
driveway but he claims that their driveway is actually part of the street according
to his survey map. I advised him to seek assistance from the township regarding a
property dispute because he was not a licensed or certified land surveyor. I also
relayed to him that Mrs. Grubb did not want he or his brother, Bill, on her
9
Although the online version of the story used the phrase “expletive Ross Township,” the filings of the parties
suggest that the phrase “Fuck Ross Township” had been displayed on the sign. Doc. No. 14-14, 2; Doc. No. 94, ¶
50.
7
property. While speaking to Bob Ansell, his brother Bill kept going in and out of
the house and kept repeating to Sgt. Hribik and I that our department was corrupt
and that we all take the side of the Grubb family during any dispute. He kept
using profanity toward Sgt. Hribik and I and toward our entire department.
Several times while speaking to Bob Ansell he stopped and told Bill to go back in
the house. At one point he got so angry that he told me that the next police call
was going to be on him fighting with Bill. I asked him to not antagonize an
already volatile situation and to try to keep his brother under control.
Doc. No. 78-15. The report referred to the incident as an alleged “trespassing.” Id.
On the evening of January 22, 2009, Officers Robert Zegar (“Zegar”) and David J.
Young (“Young”) issued citations to Ansell for illegally parking two of his vehicles on Fairley
Road. Doc. No. 94, ¶ 51. During meetings conducted by the Board on February 9, 2009, and
February 23, 2009, Ansell complained that members of the RTPD had been treating him
unfairly. Doc. No. 14, ¶¶ 47-48; Doc. No. 94, ¶¶ 54-55. On March 21, 2009, Officer Joseph
LaMonica (“LaMonica”) issued citations to Ansell for parking two of his vehicles in the wrong
direction. Doc. No. 14, ¶ 49(a). The citations were voided after Robert complained to RTPD
personnel on Ansell’s behalf. Id. A police report later prepared by LaMonica stated that the
citations had been voided because Fairley Road was “not wide enough for two-way traffic.”
Doc. 14-9, 1.
Officer Mark Wuycheck (“Wuycheck”) cited Ansell for “illegal parking” on April 9,
2009. Doc. No. 14-10. Robert complained about Ordinance No. 2275 during a Board meeting
conducted on April 13, 2009. Doc. No. 14, ¶ 50. After Robert was done speaking, Ansell
described the problems that he had experienced with employees of Ross Township. Id., ¶ 50.
Ross Township maintains a policy requiring the presence of a police officer at each
Board meeting. Doc. No. 94, ¶ 98. Pursuant to that policy, Officer Matthew Grubb (“Grubb”)
attended a Board meeting conducted on May 11, 2009. Id., ¶ 99. Ansell and Robert attended the
8
meeting as well. Id., ¶ 101. Robert voiced complaints about Ansell’s receipt of multiple parking
citations, the location of the Grubbs’ driveway, and alleged problems concerning the width of
Fairley Road. Id., ¶ 102. Robert presented photographs depicting his driveway being blocked by
a vehicle owned by individuals who were visiting the Grubb residence. Doc. No. 14-16. Daniel
DeMarco (“DeMarco”), the Chairman of the Board, attempted to address a different topic after
the conclusion of Robert’s remarks. Doc. No. 94, ¶¶ 105-106. Ansell interjected and asked,
“You really don’t get it, do you?” Id., ¶ 107. DeMarco responded to Ansell’s question by
admonishing that the Board did not want to entertain additional arguments about the situation on
Fairley Road and directing Grubb to remove Ansell from the meeting. Id., ¶¶ 108-110. Grubb
proceeded to escort Ansell out of the meeting room. Id., ¶ 113. The relevant portion of the
Board’s meeting minutes stated as follows:
Mr. Robert Ansell addressed the Board and presented photos of his driveway
being blocked by a vehicle that was visiting the Grubb residence. Mr. Ansell
discussed the relocation of the Grubb driveway. The no-parking zone was
discussed. Commissioner Eyster stated it is a police matter and not something
that the Board can legislate. Before addressing the Board, Commissioner
DeMarco requested Mr. Ansell be removed, since nothing new was being
addressed. Before being escorted out, Mr. William Ansell questioned whether he
was being denied the right to discuss the large Opiela political signs throughout
the township.
Doc. No. 14-16. Ansell was apparently removed from the meeting pursuant to a policy
permitting the ejection of disruptive individuals. Doc. No. 94, ¶ 117.
Ansell received seven parking citations between May 16, 2009, and June 27, 2009. Doc.
No. 14, ¶ 53(a). In a police report dated July 29, 2009, White stated that a vehicle owned by
Ansell was partially blocking a neighbor’s driveway. Id., ¶ 53(b). Robert visited the
headquarters of the RTPD that same day to obtain copies of several police reports. Id. Ralph C.
Freedman (“Freedman”), Ross Township’s Chief of Police, encountered Robert and informed
9
him that Ansell’s vehicle was going to be towed out of the way. Id. After speaking with Robert
about the matter, Freedman agreed to give Ansell twenty-four hours to voluntarily move the
vehicle. Doc. No. 94, ¶ 65.
On September 29, 2009, a resident of Fairley Road contacted the RTPD and reported that
Ansell’s car alarm had been activated. Id., ¶ 66. Officer M.P. Thomas (“Thomas”) responded to
the call. Id. Ansell was able to deactivate the alarm before Thomas’ arrival. Id., ¶ 67. After
viewing the location of the vehicle, Thomas issued a citation to Ansell for parking his car more
than twelve inches from the edge of the curb on Fairley Road. Id., ¶ 68. The portion of the
citation describing Ansell’s offense stated that his car had been parked sixteen inches from the
curb. Doc. No. 14-22.
Ansell commenced this action against Ross Township, Allegheny County, Grubb,
Freedman, Orsino, White, Wuycheck, Chuberko, Zegar, LaMonica, Garcia, DeMarco,
Castellano, Officer Joseph J. Serowik (“Serowik”), Officer Donald C. Sypolt, IV (“Sypolt”),
Officer Barry Clifford (“Clifford”), and Warden Ramon C. Rustin (“Rustin”) on October 16,
2009, alleging violations of the First, Fourth and Fourteenth Amendments to the United States
Constitution, 42 U.S.C. § 1985(3), and the common law of Pennsylvania respecting the torts of
assault, battery, malicious prosecution, and intentional infliction of emotional distress. Doc. No.
1. On December 6, 2009, Ansell amended his complaint to add Fourth Amendment claims for
excessive force and name Longo, Stokes, George and Deputy James Stegena (“Stegena”) as
additional defendants. Doc. No. 14. The deputies responded on January 8, 2010, by filing a
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. No. 18. In support
of their motion to dismiss, the deputies argued that they were entitled to qualified immunity.
Doc. No. 19. Although Ansell generally contested the motion to dismiss, he consented to the
10
dismissal of his § 1985(3) claims against the deputies. Doc. No. 25. The Court dismissed the §
1985(3) claims against the deputies without prejudice in a memorandum opinion and order dated
January 20, 2010. Doc. No. 26. The motion to dismiss was denied in all other respects. Id.
Since the Court’s decision denying the deputies’ motion to dismiss implicated their
immunity from suit and rested on questions of law, it was subject to immediate appeal. Behrens
v. Pelletier, 516 U.S. 299, 310-311, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). The deputies
appealed the decision to the United States Court of Appeals for the Third Circuit on February 1,
2010. Doc. No. 31. On March 25, 2011, the Court of Appeals affirmed this Court’s decision
denying the motion to dismiss. Ansell v. Ross Township, 419 Fed.Appx. 209 (3d Cir.
2011)(unpublished).
Longo, Stokes, George and Stegena moved for summary judgment on January 2, 2012.
Doc. No. 66. Ross Township and DeMarco filed a separate motion for summary judgment that
same day. Doc. No. 68. The remaining defendants filed two motions for summary judgment one
day later. One motion was filed by Allegheny County and Rustin. Doc. No. 70. The other
motion was filed by Ross Township, Grubb, Freedman, Orsino, White, Wuycheck, Chuberko,
Zegar, LaMonica, Garcia, Serowik, Sypolt and Clifford. Doc. No. 74. The four motions for
summary judgment filed by the Defendants are the subject of this memorandum opinion.
III.
Standard of Review
Summary judgment may only be granted where the moving party shows that there is no
genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. FED.
R. CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary
judgment against a party who fails to make a showing sufficient to establish an element essential
to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v.
11
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the evidence,
the Court must interpret the facts in the light most favorable to the nonmoving party, drawing all
reasonable inferences in his or her favor. Watson v. Abington Township, 478 F.3d 144, 147 (3d
Cir. 2007). The burden is initially on the moving party to demonstrate that the evidence
contained in the record does not create a genuine issue of material fact. Conoshenti v. Public
Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). A dispute is “genuine” if the
evidence is such that a reasonable trier of fact could render a finding in favor of the nonmoving
party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the nonmoving party will
bear the burden of proof at trial, the moving party may meet its burden by showing that the
admissible evidence contained in the record would be insufficient to carry the nonmoving party’s
burden of proof. Celotex Corp., 477 U.S. at 322. Once the moving party satisfies its burden, the
burden shifts to the nonmoving party, who must go beyond his or her pleadings and designate
specific facts by the use of affidavits, depositions, admissions or answers to interrogatories
showing that there is a genuine issue of material fact for trial. Id. at 324. The nonmoving party
cannot defeat a well-supported motion for summary judgment by simply reasserting unsupported
factual allegations contained in his or her pleadings. Williams v. Borough of West Chester, 891
F.2d 458, 460 (3d Cir. 1989).
IV.
Jurisdiction and Venue
Jurisdiction over Ansell’s claims is predicated on 28 U.S.C. §§ 1331 and 1367(a). Venue
is proper under 28 U.S.C. § 1391(b).
V.
Discussion
Ansell brings his federal constitutional claims pursuant to 42 U.S.C. § 1983, which
provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or
12
usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”
42 U.S.C. § 1983. This remedial statute does not create substantive rights. Maher v. Gagne, 448
U.S. 122, 129, n. 11, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). A plaintiff cannot prevail in an
action brought under § 1983 without establishing an underlying violation of a federal
constitutional or statutory right. Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137
L.Ed.2d 569 (1997).
As the United States Supreme Court observed in Imbler v. Pachtman, 424 U.S. 409, 418,
96 S.Ct. 984, 47 L.Ed.2d 128 (1976), Ҥ 1983 is to be read in harmony with general principles of
tort immunities rather than in derogation of them.” Consequently, the “qualified immunity” that
was available to executive officials at common law may be invoked by executive officials sued
under § 1983. Hafer v. Melo, 502 U.S. 21, 28-29, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). State
officials performing discretionary duties are generally “shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982). In order for a federal right to be “clearly established” for
purposes of qualified immunity, “[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he [or she] is doing violates that right.” Anderson
v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Qualified immunity is
not only a defense to liability, but also “an entitlement not to stand trial or face the other burdens
of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
13
For this reason, the Supreme Court has often “stressed the importance of resolving immunity
questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112
S.Ct. 534, 116 L.Ed.2d 589 (1991)(per curiam).
Ansell asserts a myriad of claims against twenty-one different defendants. Doc. No. 14.
Most of the individual defendants named in the amended complaint raise the defense of qualified
immunity in support of their motions for summary judgment. Doc. No. 67, 15-17; Doc. No. 71,
13-16; Doc. No. 75, 10, 13-14. The Court has discretion to consider whether certain defendants
are entitled to qualified immunity without determining whether the claims asserted against them
would otherwise warrant relief. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172
L.Ed.2d 565 (2009).
In the amended complaint, Ansell avers that, on November 15, 2007, Castellano used a
leaf blower to blow leaves and dirt into his face. Doc. No. 14, ¶ 117. Ansell alleges that
Castellano took this action in retaliation for complaints that he had voiced against the DPW. Id.
Castellano’s alleged act of blowing leaves and dirt into Ansell’s face form the basis of both
federal constitutional claims grounded in the First and Fourteenth Amendments and state tort
claims premised on assault and battery theories. Id., ¶¶ 73-93, 110-121. Unlike the other twenty
defendants, Castellano has not moved for summary judgment.
Ansell alleges that Longo, Stokes, George and Stegena violated the Fourth and
Fourteenth Amendments by using excessive force while effectuating his arrest on October 18,
2007. Id., ¶¶ 175-184. He also brings supplemental assault and battery claims against the
deputies based on their conduct during the arrest. Id., ¶¶ 110-121. Ansell apparently believes
that Allegheny County is vicariously liable under Pennsylvania law for the assaults and batteries
allegedly committed by the deputies. Id. He asserts similar claims against Castellano and Ross
14
Township. Id. Since Castellano has not moved for summary judgment, the Court need only
consider Ansell’s assault and battery claims in relation to the actions taken by Longo, Stokes,
George and Stegena.
A.
The Fourth Amendment Claims Asserted Against the Deputies
The first step in considering a claim brought under § 1983 is to “identify the exact
contours of the underlying right said to have been violated.” County of Sacramento v. Lewis,
523 U.S. 833, 841, n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The Fourth Amendment to
the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. CONST., AMEND. IV. The proscriptions contained in the Fourth Amendment are applicable
to the States by virtue of the Fourteenth Amendment’s Due Process Clause. Cady v.
Dombrowski, 413 U.S. 433, 440, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).
A person is “seized” within the meaning of the Fourth Amendment when the government
terminates his or her freedom of movement through means intentionally applied. Brower v.
County of Inyo, 489 U.S. 593, 596-597, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). It is
undisputed that Ansell was “seized” when the deputies took him into custody. Pitchford v.
Borough of Munhall, 631 F.Supp.2d 636, 645 (W.D.Pa. 2007). Once it is determined that a
“seizure” has occurred, the legality of that seizure under the Fourth Amendment turns on
whether it was “reasonable.” Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999). In this case,
Ansell does not challenge the legality of the decision to arrest him. He acknowledges that the
arresting officers executed a valid arrest warrant. Doc. No. 94, ¶ 73; Doc. No. 77-3, 7. The
15
“reasonableness” of a seizure, however, depends not only on whether or when it occurs, but also
on “how it is carried out.” Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1
(1985). Ansell alleges that the deputies used “excessive force” (i.e., an “unreasonable” degree of
force) in making the arrest. Doc. No. 14, ¶¶ 175-184.
“The test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60
L.Ed.2d 447 (1979). Any use of force “must be justified by the need for the specific level of
force employed.” Bryan v. MacPherson, 630 F.3d 805, 825 (9th Cir. 2010). “Force is reasonable
only when exercised in proportion to the threat posed.” Cyrus v. Town of Mukwonago, 624 F.3d
856, 863 (7th Cir. 2010). In any case involving a constitutional challenge to an officer’s use of
force during the course of an arrest, the relevant question is whether the particular type of force
employed was “reasonable” in light of “the precise circumstances confronted by the arresting
officer.” Ickes v. Borough of Bedford, 807 F.Supp.2d 306, 322 (W.D.Pa. 2011). “This question
must be considered from the perspective of an objectively reasonable officer at the scene of the
arrest.” Id. The inquiry does not account for the arresting officer’s subjective “intent or
motivation.” Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004).
The Supreme Court explained in Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865,
104 L.Ed.2d 443 (1989), that the “proper application” of the Fourth Amendment’s standard of
objective reasonableness “requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he [or she] is actively
resisting arrest or attempting to evade arrest by flight.” In Scott v. Harris, 550 U.S. 372, 384,
127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court observed that the “relative
16
culpability” of the parties involved in a confrontation may also have some bearing on the
“reasonableness” of the degree of force employed to effectuate an arrest. “The calculus of
reasonableness must embody allowance for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about
the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-397. A
court presented with an excessive force claim grounded in the Fourth Amendment must account
for the fact that an officer does not have “the benefit of hindsight” when he or she attempts to
make an arrest. Wargo v. Municipality of Monroeville, 646 F.Supp.2d 777, 785 (W.D.Pa. 2009).
The “totality of the circumstances” must be considered. Curley v. Klem, 499 F.3d 199, 207 (3d
Cir. 2007).
During the depositions conducted in connection with this case, the parties provided
conflicting accounts of the arrest. Ansell testified that one of the deputies had “grabbed” him
“by the leg” and pulled him off of his bed. Doc. No. 77-6, 14. He stated that the deputies had
dragged him into a nearby hallway after pulling him onto the floor. Id., 15. Longo testified that
he, Stokes and Orsino had entered Ansell’s bedroom and found him “crouched down in front of
his bed on the floor.” Doc. No. 80-5, 4. He denied that Ansell had been “dragged” out of the
bedroom. Id., 7. Stokes testified that Ansell had been lying on the floor in a “fetal position” at
the time of the officers’ entry. Doc. No. 80-19, 4. He stated that Ansell had “walked” out of the
bedroom after the arrest. Id., 5. Stokes attributed the actual arrest to Longo. Id. He denied that
he had touched Ansell during the encounter. Id. George apparently entered the residence after
learning that Ansell had been taken into custody. Doc. No. 80-16, 3. Ansell’s handcuffs were
briefly removed so that he could put on a shirt. Doc. No. 80-17, 1. Stegena waited outside and
never entered Ansell’s residence. Doc. No. 80-7, 3.
17
Although Longo and Stokes denied that Ansell had been dragged off of his bed and into
the hallway, the Court must credit Ansell’s testimony in the present context. Thompson v.
Wagner, 631 F.Supp.2d 664, 678 (W.D.Pa. 2008). Even if it is assumed that Longo or Stokes
used the degree of “force” described by Ansell to effectuate the arrest, the manner in which the
“seizure” was carried out did not render it violative of the Fourth Amendment. It is undisputed
that Ansell had a revolver hanging from his bedpost when the arresting officers arrived. Doc.
No. 94, ¶ 78. Orsino testified that he had “secured” the revolver while Longo and Stokes were
making the arrest. Doc. No. 79-2, 19. Longo testified that Orsino had discovered the revolver
and verbally exclaimed “Gun” before Ansell had been taken into custody.10 Doc. No. 80-5, 7.
The presence of a firearm within Ansell’s reach provided the arresting officers with a
“reasonable” justification for dragging him off of his bed and into the hallway. Graham, 490
U.S. at 396 (explaining that the use of force to make an arrest may be objectively reasonable
where the person being placed under arrest “poses an immediate threat to the safety of the
officers or others”).
Ansell posits that no amount of force was needed because he was not actively resisting
arrest. Doc. No. 88, 7-8. Stokes responded in the negative when asked whether Ansell had
attempted to evade capture. Doc. No. 80-19, 5. Stokes’ testimony, however, must be read in
context. Longo and Stokes both testified that they had repeatedly knocked on Ansell’s front door
before entering the residence, and that Ansell had been nonresponsive. Doc. No. 80-5, 3; Doc.
No. 80-19, 3. They entered the residence through a garage door after retrieving the necessary
10
Ansell mischaracterizes Longo’s testimony by contending that, by Longo’s own account, he had already been
placed in handcuffs when Orsino first saw the revolver. Doc. No. 88, 7. Although Longo’s initial description of the
arrest left some doubt as to when the revolver had been discovered, he later clarified that Orsino had verbally
exclaimed “Gun” before he and Stokes had taken Ansell into custody. Doc. No. 80-5, 7. Interestingly, Ansell
acknowledges that he was not placed in handcuffs until after he had already been taken into the kitchen. Doc. No.
94, ¶ 187.
18
remote control device from Ansell’s vehicle. Doc. No. 80-5, 3. Longo testified that Ansell’s
failure to answer the door had placed the approaching officers in a “threatening position.” Id., 5.
He stated that the officers had run across “hunting clothing and equipment,” including “shotguntype shells,” while proceeding through Ansell’s basement. Id., 4. Stokes’ account of the
incident did not contradict this portion of Longo’s testimony. The testimonial evidence relied
upon by Ansell supports only the proposition that he had not been resistant to the arrest after his
first encounter with the officers. Doc. No. 80-19, 5.
Ansell’s failure to answer the door has some bearing on the reasonableness of the
subsequent actions taken by the arresting officers. Scott, 550 U.S. at 384 (“We think it
appropriate in this process to take into account not only the number of lives at risk, but also their
relative culpability.”). Had Ansell answered his door in a timely manner, there would have been
no need for the arresting officers to enter his residence and expose themselves to the associated
dangers. Ansell testified that he suffered from an auditory impairment, and that he had not been
wearing hearing aids on the morning of the arrest. Doc. No. 77-6, 3. To the extent that Ansell
believes that his alleged inability to hear the officers knocking on the door weighs against the
reasonableness of the officers’ subsequent actions, he is mistaken. The record contains no
evidence suggesting that Orsino, Longo or Stokes knew that Ansell had hearing difficulties.
Since the arresting officers did not know that Ansell’s failure to come to the door was
attributable to a medical condition, it was objectively reasonable for them to assume that he was
consciously attempting to evade arrest. McKenney v. Harrison, 635 F.3d 354, 360 (8th Cir.
2011).
The Court acknowledges that Ansell was not arrested for a violent or serious crime. This
factor weighs in his favor to some extent. Graham, 490 U.S. at 396 (recognizing “the severity of
19
the crime at issue” as a factor relevant to whether the force employed to make an arrest is
objectively reasonable). Under the present circumstances, however, the minor nature of Ansell’s
offense (i.e., his failure to appear for a scheduled compliance hearing) does not undermine the
reasonableness of the actions taken by the arresting officers. “A threat to an officer’s safety can
justify the use of force in cases involving relatively minor crimes and suspects who are not
actively resisting arrest or attempting to flee.” Brown v. City of Golden Valley, 574 F.3d 491,
497 (8th Cir. 2009). It cannot be doubted that the officers faced a threat to their safety when they
were executing the warrant for Ansell’s arrest. Ansell acknowledges that a revolver was hanging
from his bedpost when the officers entered the bedroom. Doc. No. 94, ¶ 78. By his own
admission, he was not placed in handcuffs until after Longo and Stokes had already escorted him
into the kitchen. Doc. No. 77-6, 16-17. The “force” alleged by Ansell (i.e., the deputies’ alleged
act of dragging him off of the bed and into the hallway) clearly preceded the point at which his
ability to threaten the safety of the officers had dissipated.
Consideration must also be given to the “nature and extent” of the force employed by the
deputies. Cyrus, 624 F.3d at 861. The degree of force used to effectuate Ansell’s arrest was
minimal.11 Ansell sustained no serious injuries as a result of the arrest. He testified that the
deputies’ alleged act of dragging him had caused him to suffer only minimal discomfort in his
buttocks. Doc. No. 77-7, 5. Ansell never sought treatment for this “injury.” Id. Indeed, he did
not even request an over-the-counter pain reliever. Id. The fact that Ansell sustained no serious
injuries weighs heavily against his assertion that the degree of force employed by the arresting
officers was “excessive.” Orem v. Rephann, 523 F.3d 442, 447-448 (4th Cir. 2008).
11
The Court notes that when Ansell filed his original complaint in this action, he did not name the deputies as
defendants or allege that the “force” employed during the arrest had been unreasonable. Doc. No. 1.
20
For the foregoing reasons, the actions taken by the deputies to effectuate Ansell’s arrest
were objectively reasonable as a matter of law. Allegations pertaining to the subjective
intentions or motivations of the deputies are not germane to the Fourth Amendment inquiry.
Whren v. United States, 517 U.S. 806, 812-813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Since
the actions of Longo, Stokes, George and Stegena were not violative of the Fourth Amendment
to begin with, it follows a fortiori that they did not violate a “clearly established” constitutional
right enjoyed by Ansell. Brosseau v. Haugen, 543 U.S. 194, 198-201, 125 S.Ct. 596, 160
L.Ed.2d 583 (2004)(per curiam). The Fourth Amendment claims asserted against the deputies
will be dismissed.
B.
The Claims Asserted Against the Deputies Under Pennsylvania Law
An individual commits the tort of battery when he or she intentionally inflicts a “harmful
or offensive contact” with another person’s body. C.C.H. v. Philadelphia Phillies, Inc., 940
A.2d 336, 340, n. 4 (Pa. 2008). An individual commits the tort of assault when he or she acts to
cause an actual battery or to place another person in “imminent apprehension” of a battery,
thereby causing the person to be “put in such imminent apprehension.” Jackson v. Pennsylvania
Board of Probation & Parole, 885 A.2d 598, 601, n. 2 (Pa.Commw.Ct. 2005), quoting the
Restatement (Second) of Torts § 21 (1965). Ansell brings assault and battery claims against
Longo, Stokes, George and Stegena. Doc. No. 14, ¶¶ 110-116. He apparently believes that
Allegheny County is vicariously liable for the deputies’ actions. Id.
Pennsylvania’s Crimes Code provides that a police officer attempting to make an arrest
“is justified in the use of any force which he [or she] believes to be necessary to effect the arrest
and of any force which he or she believes to be necessary to defend himself [or herself] or
another from bodily harm while making the arrest.” 18 PA. CONS. STAT. § 508(a)(1). The
21
Pennsylvania Supreme Court has recognized that the language of the Crimes Code can
sometimes “be used to set the legal parameters for establishing both criminal and civil liability.”
C.C.H., 940 A.2d at 343. The deputies rely on their statutory arrest power, including their
authority to use force in making an arrest, to defeat Ansell’s assault and battery claims. Doc. No.
67, 13.
Pennsylvania’s Political Subdivision Tort Claims Act (“PSTCA”) [42 PA. CONS. STAT. §
8541 et seq.] provides, in pertinent part, that “no local agency shall be liable for any damages on
account of any injury to a person or property caused by any act of the local agency or an
employee thereof or any other person.”12 42 PA. CONS. STAT. § 8541. An employee of a local
agency13 is generally shielded from liability for actions taken “within the scope of his [or her]
office or duties” to “the same extent as his [or her] employing local agency.” 42 PA. CONS.
STAT. § 8545. Such an employee is also entitled to the defense of “official immunity” if he or
she can demonstrate that the conduct giving rise to a claim “was authorized or required by law,
or that he [or she] in good faith reasonably believed [that] the conduct was authorized or required
by law.” 42 PA. CONS. STAT. § 8546(2). A plaintiff can overcome an employee’s statutory
immunity by demonstrating that his or her tortious conduct “constituted a crime, actual fraud,
actual malice or willful misconduct.” 42 PA. CONS. STAT. § 8550.
The Court has already concluded that the actions taken by the deputies were objectively
reasonable for purposes of the Fourth Amendment. That determination is not dispositive of
Ansell’s assault and battery claims, since the standards applicable under the Fourth Amendment
do not mirror those applicable under state law. Virginia v. Moore, 553 U.S. 164, 168-176, 128
12
This statutory provision is subject to specific exceptions that are not germane to the Court’s analysis in this case.
42 PA. CONS. STAT. § 8542.
13
The term “local agency” is defined broadly enough to include Allegheny County. 42 PA. CONS. STAT. § 8501.
The deputies are “employees” of Allegheny County. Id.
22
S.Ct. 1598, 170 L.Ed.2d 559 (2008). A State is free to provide its inhabitants with statutory
protections extending beyond those contained in the United States Constitution. Id.
Nonetheless, the record in the present case provides no support for Ansell’s assertion that the
deputies committed actionable assaults or batteries while taking him into custody.
The Pennsylvania Supreme Court articulated the test applicable to assault and battery
claims asserted against arresting officers in Renk v. City of Pittsburgh, 641 A.2d 289 (1994).
Speaking through Justice Zappalla, the Pennsylvania Supreme Court explained:
A police officer may use reasonable force to prevent interference with the
exercise of his authority or the performance of his duty. In making a lawful
arrest, a police officer may use such force as is necessary under the circumstances
to effectuate the arrest. The reasonableness of the force used in making the arrest
determines whether the police officer’s conduct constitutes an assault and battery.
Renk, 641 A.2d at 293. The Pennsylvania Supreme Court further declared that “[a] police officer
may be held liable for assault and battery when a jury determines that the force used in making
an arrest is unnecessary or excessive.” Id. It was further noted that an officer who intentionally
uses “excessive force” while making an arrest engages in “willful misconduct” for purposes of
the PSTCA. Id. at 293-294.
Ansell concedes that the arresting officers had probable cause to take him into custody.14
Doc. No. 94, ¶ 73. It is undisputed that the arrest was carried out pursuant to a valid arrest
warrant. The limited degree of force employed by the deputies was “believe[d] to be necessary
to effect the arrest” and, therefore, “authorized or required by law.” 18 PA. CONS. STAT. §
508(a)(1); 42 PA. CONS. STAT. § 8546(2). Because the degree of force used in this case was no
more invasive of Ansell’s interests than necessary to assure the safety of the arresting officers, no
14
A police officer who arrests an individual without probable cause is liable for false imprisonment under
Pennsylvania law. Renk v. City of Pittsburgh, 641 A.2d 289, 293-294 (Pa. 1994).
23
reasonable trier of fact could conclude that the deputies committed assaults or batteries that
would be actionable under the present circumstances.
Ansell testified that one of the deputies had “shoved” his head into a corner while Orsino
was searching his bedroom in order to prevent him from observing the search. Doc. No. 77-6,
17. Ansell’s handcuffs were briefly removed so that he could put on a shirt. Doc. No. 77-7, 2.
He stated that George had threatened to “shoot” him if he were to make any threatening moves
while the handcuffs were being removed. Id. George acknowledged that he had warned Ansell
not to “make a move” before removing the handcuffs. Doc. No. 80-17, 1. The conduct alleged
by Ansell, however, was reasonably designed to protect the safety of the officers. Ansell
testified that he had been held in the corner before being placed in handcuffs. Doc. No. 77-6, 16.
The handcuffs were not applied until after he had been escorted into the kitchen. Id. Since the
revolver had been discovered in Ansell’s bedroom, the deputies had a reasonable basis for
preventing him from watching Orsino’s search. There is nothing in the record which suggests
that Ansell’s head was pushed into the corner in a violent manner. Ansell merely testified that
his face had made contact with the wall. Id., 17. It is undisputed that no injuries resulted from
this incident. George’s warning to Ansell was clearly designed to prevent the need for further
force. Since the actions taken by the officers were reasonably calculated to effectuate the arrest
in a manner which assured both their own safety and that of Ansell, the record provides no basis
for a finding that the officers committed actionable assaults or batteries while taking Ansell into
custody. Renk, 641 A.2d at 293-294.
The amended complaint alleges that all defendants named in this action, including the
deputies, committed the tort of intentional infliction of emotional distress. Doc. No. 14, ¶¶ 170174. In order to recover damages under such a theory, a plaintiff must show that he or she
24
suffered “severe emotional distress” because of “outrageous or extreme conduct” engaged in by
a defendant. Reedy v. Evanson, 615 F.3d 197, 232 (3d Cir. 2010). Conduct may fairly be
characterized as “outrageous or extreme” only if it is so “outrageous in character” and “extreme
in degree” that it goes “beyond all possible bounds of decency” and must be regarded as “utterly
intolerable in civilized society.” Swisher v. Pitz, 868 A.2d 1228, 1230-1231 (Pa.Super.Ct. 2005).
A plaintiff must also demonstrate that he or she suffered “physical injury or harm” as a result of
the defendant’s conduct. Fewell v. Besner, 664 A.2d 577, 582 (Pa.Super.Ct. 1995).
Ansell’s intentional infliction of emotional distress claims against the deputies
necessarily fail because no showing of “outrageous or extreme” conduct can be made under the
circumstances surrounding the arrest. Moreover, Ansell testified that he had never sought
treatment for physical or mental injuries stemming from the events alleged in the amended
complaint. Doc. No. 77-4, 6-7. A plaintiff seeking to recover damages under a theory of
intentional infliction of emotional distress must provide “expert medical confirmation” that he or
she “actually suffered the claimed distress.” Kazatsky v. King David Memorial Park, 527 A.2d
988, 995 (Pa. 1987). Nothing in the record suggests that the emotional distress alleged by Ansell
manifested itself in “physical injury or harm.” Fewell, 664 A.2d at 582. Consequently, he
cannot recover from any of the defendants under this theory. Reedy, 615 F.3d at 232.
The motion for summary judgment filed by Longo, Stokes, George and Stegena will be
granted in its entirety. Doc. No. 66. These four defendants will be dismissed as parties to this
case. Given that no actions taken by the deputies in relation to Ansell are actionable under
Pennsylvania law, the vicarious liability claims based on those actions must also be dismissed.
Kraus v. Taylor, 710 A.2d 1142, 1147 (Pa.Super.Ct. 1998). Since Ansell never sought medical
treatment in connection with the events surrounding this case, all defendants named in the
25
amended complaint are entitled to summary judgment with respect to his intentional infliction of
emotional distress claims. Kazatsky, 527 A.2d at 995.
C.
The Unreasonable Search Claim
The Fourth Amendment provides protection against “unreasonable searches and
seizures.” U.S. CONST., AMEND. IV. An arrest is constitutionally “reasonable” only when it is
made on the basis of “probable cause.”15 Papachristou v. City of Jacksonville, 405 U.S. 156,
169, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). In this case, it is undisputed that Ansell was taken
into custody pursuant to a valid arrest warrant. Doc. No. 94, ¶ 73. Nevertheless, Ansell alleges
that Orsino violated his right to be free from “unreasonable searches” by conducting a limited
search of his bedroom without procuring a search warrant. Doc. No. 14, ¶¶ 122-128.
Warrantless searches that do not fall within “a few specifically established and welldelineated exceptions” are “per se unreasonable under the Fourth Amendment.” Katz v. United
States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)(emphasis in original). “Among
the exceptions to the warrant requirement is a search incident to a lawful arrest.” Arizona v.
Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). This exception “derives from
interests in officer safety and evidence preservation that are typically implicated in arrest
situations.” Id. In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969),
the Supreme Court explained:
When an arrest is made, it is reasonable for the arresting officer to search
the person arrested in order to remove any weapons that the latter might seek to
use in order to resist arrest or effect his escape. Otherwise, the officer’s safety
might well be endangered, and the arrest itself frustrated. In addition, it is entirely
reasonable for the arresting officer to search for and seize any evidence on the
arrestee’s person in order to prevent its concealment or destruction. And the area
into which an arrestee might reach in order to grab a weapon or evidentiary items
15
“Probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are
sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by
the person to be arrested.” Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995).
26
must, of course, be governed by a like rule. A gun on a table or in a drawer in
front of one who is arrested can be as dangerous to the arresting officer as one
concealed in the clothing of the person arrested. There is ample justification,
therefore, for a search of the arrestee’s person and the area “within his immediate
control”—construing that phrase to mean the area from within which he might
gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any
room other than that in which an arrest occurs—or, for that matter, for searching
through all the desk drawers or other closed or concealed areas in that room itself.
Such searches, in the absence of well-recognized exceptions, may be made only
under the authority of a search warrant. The “adherence to judicial processes”
mandated by the Fourth Amendment requires no less.
Chimel, 395 U.S. at 762-763. The “scope of a search incident to arrest” must be “commensurate
with its purposes of protecting arresting officers and safeguarding any evidence of the offense of
arrest that an arrestee might conceal or destroy.” Gant, 556 U.S. at 339. “If there is no
possibility that an arrestee could reach into the area that law enforcement officers seek to search,
both justifications for the search-incident-to-arrest exception are absent and the rule does not
apply.” Id.
The interest that law enforcement officers have in protecting themselves from harm
sometimes justifies warrantless searches for persons other than the individual who is arrested. In
Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the Supreme
Court held that officers arresting an individual inside of his or her home may, “as a precautionary
matter and without probable cause or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an attack could be immediately launched.”
“If the search goes beyond the immediately adjoining areas, there must be ‘articulable facts’
which would warrant a reasonably prudent officer to believe that there are individuals who pose
a danger in other areas of the house.” Sharrar v. Felsing, 128 F.3d 810, 822-823 (3d Cir. 1997).
27
Ansell testified that while the deputies were holding him in the corner of the hallway, he
could see Orsino looking in his dresser and closet. Doc. No. 77-3, 4-7. Orsino acknowledged
that he had checked Ansell’s nightstand in order to ensure that “there were no other weapons in
the immediate area.” Doc. No. 79-1, 13. By that time, the revolver had already been secured.
Id., 11. Orsino stated that his primary concern had been to ensure that no weapons would be
accessible to Ansell in the event that he was able to break free from the deputies’ grasp. Id., 15;
Doc. No. 79-3, 2-3. As noted earlier, Ansell testified that the handcuffs had not been applied
until after his entry into the kitchen. Doc. No. 77-6, 16. Thus, he was not in handcuffs when he
saw Orsino searching the bedroom. When asked about the matter during his deposition, Orsino
could not recall whether he had looked inside of Ansell’s closet. Doc. No. 79-1, 15. Orsino
explained that he may have done so for the purpose of ensuring that nobody else was in the
room. Id.
The undisputed evidence of record indicates that Orsino looked only “in closets and other
spaces immediately adjoining the place of arrest.” Buie, 494 U.S. at 334. This search was
conducted after a deadly firearm had already been discovered inside of Ansell’s bedroom. The
actions taken by Orsino were clearly commensurate with the purpose of protecting the arresting
officers. Gant, 556 U.S. at 339. On the basis of the existing record, Ansell cannot establish that
Orsino violated his Fourth Amendment right to be free from “unreasonable searches.” Since no
violation can be established in any event, it is even more clear that Ansell cannot overcome
Orsino’s entitlement to qualified immunity. Pearson, 555 U.S. at 243-245.
Ansell attempts to proceed against Orsino in both his personal and official capacities.
Doc. No. 14, ¶¶ 122-128. A plaintiff bringing a personal-capacity claim against an official seeks
to hold the official personally liable for his or her conduct. Kentucky v. Graham, 473 U.S. 159,
28
165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). An award of money damages entered against a
personal-capacity defendant can be executed only against his or her “personal assets.” Id. at 166.
A personal-capacity defendant may rely on personal defenses or immunities that are not
available to governmental entities. Id. at 166-167. In contrast, an official-capacity action
brought against a public official is essentially the same as an action brought directly against the
governmental entity of which he or she is an agent. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct.
358, 116 L.Ed.2d 301 (1991). When an official-capacity defendant leaves office, his or her
successor is “automatically substituted as a party to the litigation” by operation of law. FED. R.
CIV. P. 25(d). An award of damages entered against an official-capacity defendant can be
executed only against the employing governmental entity, since “an official-capacity suit is, in
all respects other than name, to be treated as a suit against the entity.” Graham, 473 U.S. at 166.
The only immunities available to a defendant sued in his or her official capacity are those
available to the governmental entity itself. Hafer, 502 U.S. at 25.
Since Ansell cannot establish that Orsino violated his Fourth Amendment rights, his
claim against Ross Township (i.e., his official-capacity claim against Orsino) is not viable. City
of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986)(per curiam).
Even if it is assumed that Orsino violated Ansell’s constitutional rights by conducting the search,
Ansell still cannot proceed against Ross Township under the present circumstances. Unlike
Orsino, Ross Township cannot raise the defense of qualified immunity. Owen v. City of
Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980)(holding that a
governmental entity “may not assert the good faith of its officers or agents as a defense to
liability under § 1983”). Nonetheless, a governmental entity cannot be held vicariously liable
under § 1983 for constitutional violations perpetrated by its agents or employees. Berg v. County
29
of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000). A plaintiff may recover damages from a
governmental entity only where his or her constitutional injuries are caused by the execution of
the entity’s “policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy.” Monell v. Department of Social Services, 436
U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Ansell makes no attempt to explain why
he believes that Orsino conducted the search pursuant to a “policy or custom” of Ross Township.
Doc. No. 93, 12-13. Indeed, he does not even allege that Orsino acted in accordance with such a
“policy or custom.” Doc. No. 14, ¶¶ 122-128. Consequently, Ansell’s official-capacity claim
must be dismissed even if Orsino’s conduct was violative of the Fourth Amendment.
D.
The “Unreasonable” Strip Search Claims
Ansell testified that he had been subjected to two “strip searches” after arriving at the
County Jail. Doc. No. 77-11, 5-8. He stated that the first search had occurred inside of a
curtained cubicle and in the presence of a male corrections officer. Id., 6. Ansell explained that
during the search, he had been required to remove his clothes, spread the cheeks of his buttocks,
and lift his scrotum before donning a “red jump suit.” Id., 5-6. He claimed that the curtain to the
cubicle had been partially open during the search, allowing others to see him naked. Id., 6.
Ansell further asserted that he had subsequently been forced to disrobe and shower in an area
with no curtains. Id., 8-9. A male corrections official was apparently present while Ansell was
showering. Id., 8.
The parties apparently disagree as to whether these searches constituted “strip searches”
or “visual body inspections.” Doc. No. 94, ¶ 329. The nomenclature used to define the searches,
however, has no bearing on whether they were constitutional. Safford Unified School District #1
v. Redding, 557 U.S. 364, ___, 129 S.Ct. 2633, 2641, 174 L.Ed.2d 354 (2009). Regardless of
30
how the searches are characterized, the dispositive question is whether they were “unreasonable”
within the meaning of the Fourth Amendment. Id.
Ansell alleges that corrections officials violated his Fourth Amendment right to be free
from “unreasonable searches” by strip searching him without “reasonable suspicion to believe
that [he was] concealing a weapon or contraband.” Doc. No. 14, ¶ 139. In Florence v. Board of
Chosen Freeholders of the County of Burlington, 621 F.3d 296, 298, 311 (3d Cir. 2010), the
United States Court of Appeals for the Third Circuit held that it was “reasonable” for “jails to
strip search arrestees upon their admission to the general [prison] population.” The searches at
issue in Florence were factually similar to those described by Ansell. Florence, 621 F.3d at 299.
Consequently, Ansell has no constitutional basis for challenging the justification for the searches.
Even when a strip search is constitutionally justified, a corrections official may not
“conduct the search in an abusive fashion.” Bell, 441 U.S. at 560. The Fourth Amendment
requires that all such searches “be conducted in a reasonable manner.” Id. Ansell testified that
no corrections officers had touched him during the strip searches. Doc. No. 77-11, 6. Therefore,
this case does not involve an allegation of sexual or physical abuse, which could render an
otherwise permissible strip search unconstitutional. Watson v. Secretary of Pennsylvania
Department of Corrections, 436 Fed.Appx. 131, 136 (3d Cir. 2011)(unpublished).
In the amended complaint, Ansell alleges that “female inmates and arrestees passing
through the area” were able to view his naked body during the first strip search because the
corrections officer conducting the search “did not close the curtains” of the cubicle. Doc. No.
14, ¶ 149. He testified that during the search, his naked body had been visible to “everybody”
who was standing near the cubicle. Doc. No. 77-11, 6. Despite the precise nature of the
allegations contained in the amended complaint, it is not clear from Ansell’s testimony whether
31
he was strip searched in the presence of women. Such an allegation could conceivably provide a
basis for determining that the search was carried out in an “unreasonable” manner.16 Hayes v.
Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995)(remarking that prisoners “retain a limited
constitutional right to bodily privacy, particularly as to searches viewed or conducted by
members of the opposite sex”). Under the present circumstances, however, the Court has no
occasion to confront that issue.
The corrections officials who strip searched Ansell are not named as defendants in this
action. The Fourth Amendment claims relating to the strip searches are directed only at Rustin
and Allegheny County. Doc. No. 14, ¶¶ 137-160. An official sued under § 1983 may be held
personally liable only “for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, ___,
129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Rustin’s status as the Warden of the County Jail
cannot serve as a basis for holding him liable for injuries attributable to the alleged misconduct
of his subordinates. Evancho v. Fisher, 423 F.3d 347, 353-354 (3d Cir. 2005). Liability under §
1983 cannot be premised on a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988). In order to proceed with his personal-capacity claim against Rustin,
Ansell must demonstrate that Rustin was personally involved in the alleged decision to conduct
the strip search in the presence of female inmates. Id. Furthermore, Ansell cannot proceed
against Allegheny County under § 1983 without establishing that his constitutional injuries were
“caused by a municipal policy or custom.” Los Angeles County v. Humphries, ___U.S.___, ___,
131 S.Ct. 447, 449, 178 L.Ed.2d 460 (2010). In this context, Allegheny County cannot be held
liable solely because it employed the individuals allegedly responsible for violating Ansell’s
16
Even if it is assumed that a prisoner’s right to bodily privacy is subordinate to a State’s interest in offering
employment opportunities to prison guards of both sexes on an equal basis, it does not necessarily follow that a
prisoner may be strip searched in the presence of inmates of the opposite sex. Johnson v. Pennsylvania Bureau of
Corrections, 661 F.Supp. 425, 432 (W.D.Pa. 1987)(recognizing a need “to balance the competing concerns of
maximizing the female guards’ employment opportunities and deference to inmate privacy”).
32
Fourth Amendment rights. Collins v. City of Harker Heights, 503 U.S. 115, 121, 112 S.Ct. 1061,
117 L.Ed.2d 261 (1992).
David Hungerman (“Hungerman”) has been employed as the administrator of the County
Jail’s “intake system” since June 2007. Doc. No. 80-35, 5. Although Hungerman had no
specific knowledge of the circumstances surrounding Ansell’s strip search, he testified that men
and women did not normally “intermingle” in areas where strip searches were being conducted.
Doc. No. 80-37, 9. Hungerman stated that no females should have been present while Ansell
was being searched. Id.
Even if it is assumed that Ansell was strip searched in the presence of female inmates, he
cannot establish that a policy or custom implemented by Rustin or Allegheny County caused the
strip search to be carried out in such an “unreasonable” manner. Indeed, he does not even allege
that the County Jail had a policy or custom of strip searching arrestees in mixed-gender settings.
His averments concerning the policies promulgated by Rustin and Allegheny County pertain
only to the fact that all arrestees entering the County Jail were strip searched, regardless of the
nature of their offenses or the level of suspicion as to whether they were concealing weapons or
contraband. Doc. No. 14, ¶¶ 139-144, 153-156. To the extent that Ansell believes that the
County Jail had no justification for conducting the strip searches in the first place, his position is
foreclosed by Florence. Florence, 621 F.3d at 311. For these reasons, the motion for summary
judgment filed by Rustin and Allegheny County will be granted in its entirety. Doc. No. 70.
The Court of Appeals’ decision in Florence is presently being reviewed by the Supreme
Court. A writ of certiorari was granted in the case on April 4, 2011. Florence v. Board of
Chosen Freeholders of the County of Burlington, ___U.S.___, 131 S.Ct. 1816, 179 L.Ed.2d 772
(2011). Although Rustin will most likely be shielded by qualified immunity irrespective of
33
whether the Court of Appeals’ decision is reversed, a governmental entity such as Allegheny
County “may not assert the good faith of its officers or agents as a defense to liability under §
1983.” Owen, 445 U.S. at 638 (footnote omitted). Consequently, the viability of Ansell’s Fourth
Amendment claim against Allegheny County may turn on the Supreme Court’s impending
decision in Florence. In fairness to Ansell, the Court will dismiss his claims relating to the strip
searches without prejudice. If the correctness of this Court’s decision is undermined by the
Supreme Court’s decision, Ansell can move for the reinstatement of his Fourth Amendment
claims against both Rustin and Allegheny County.
E.
The Conspiracy Claims Under 42 U.S.C. § 1985(3)
Ansell alleges that all defendants other than the deputies conspired to violate his rights
under the Equal Protection Clause of the Fourteenth Amendment.17 Doc. No. 14, ¶¶ 94-109. His
conspiracy claims are based on 42 U.S.C. § 1985(3), which provides:
(3) Depriving persons of rights or privileges. If two or more persons in any
State or Territory conspire, or go in disguise on the highway or on the premises of
another, for the purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal privileges and
immunities under the laws, or for the purpose of preventing or hindering the
constituted authorities of any State or Territory from giving or securing to all
persons within such State or Territory the equal protection of the laws; or if two
or more persons conspire to prevent by force, intimidation, or threat, any citizen
who is lawfully entitled to vote, from giving his support or advocacy in a legal
manner, toward or in favor of the election of any lawfully qualified person as an
elector for President or Vice-President, or as a member of Congress of the United
States; or to injure any citizen in person or property on account of such support or
advocacy; in any case of conspiracy set forth in this section, if one or more
persons engaged therein do, or cause to be done, any act in furtherance of the
object of such conspiracy, whereby another is injured in his person or property, or
deprived of having and exercising any right or privilege of a citizen of the United
States, the party so injured or deprived may have an action for the recovery of
damages, occasioned by such injury or deprivation, against any one or more of the
conspirators.
17
Although Ansell initially asserted conspiracy claims against the deputies, those claims were subsequently
dismissed with his consent. Doc. No. 25, 2, n. 1; Doc. No. 26.
34
42 U.S.C. § 1985(3). This statutory provision does not create substantive rights. Great
American Savings & Loan Association v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345, 60 L.Ed.2d
957 (1979). Instead, it provides a remedy for those who suffer violations of the rights designated
therein. Id.
Unlike § 1983, § 1985(3) does not contain an “under color” of law element. Griffin v.
Breckenridge, 403 U.S. 88, 92-101, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). Consequently, a
plaintiff proceeding under § 1985(3) need not establish the existence of state action if the
underlying right that he or she seeks to vindicate is assertable against private entities. Id. at 104107. Where the actionable federal right underlying the conspiracy is assertable only against
governmental entities, a plaintiff cannot prevail under § 1985(3) without demonstrating the
existence of the governmental action necessary to establish a violation of that right. United
Brotherhood of Carpenters & Joiners of America v. Scott, 463 U.S. 825, 833, 103 S.Ct. 3352, 77
L.Ed.2d 1049 (1983).
The jurisprudence governing the application of § 1985(3) can be traced to Griffin v.
Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). In Griffin, the Supreme Court
declared that § 1985(3) was never “intended to apply to all tortious, conspiratorial interferences
with the rights of others.” Griffin, 403 U.S. at 101. Speaking through Justice Stewart, the
Supreme Court explained:
The language requiring intent to deprive of equal protection, or equal privileges
and immunities, means that there must be some racial, or perhaps class-based,
invidiously discriminatory animus behind the conspirators’ action. The
conspiracy, in other words, must aim at a deprivation of the equal enjoyment of
rights secured by law to all.
Id. at 102 (emphasis in original; footnotes omitted). Since its decision in Griffin, the Supreme
Court has never recognized a nonracial class as a class entitled to statutory protection under §
35
1985(3). Scott, 463 U.S. at 836. The United States Court of Appeals for the Third Circuit has
recognized women and mentally retarded individuals as statutorily-protected classes. Farber v.
City of Paterson, 440 F.3d 131, 137 (3d Cir. 2006). A plaintiff bringing a conspiracy claim
under § 1985(3) “must allege both that the conspiracy was motivated by discriminatory animus
against an identifiable class and that the discrimination against the identifiable class was
invidious.” Id. at 135.
Ansell does not allege that his constitutional rights were violated because of his
membership in a particular class. Instead, he contends that members of the RTPD conspired
against him because of his “outspoken and public criticism of Ross Township officers,
employees, and agents.” Doc. No. 14, ¶ 98. This contention, however, does not provide Ansell
with a basis for proceeding under § 1985(3). In Bray v. Alexandria Women’s Health Clinic, 506
U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993), the Supreme Court made the following
observations:
Whatever may be the precise meaning of a “class” for purposes of Griffin’s
speculative extension of § 1985(3) beyond race, the term unquestionably connotes
something more than a group of individuals who share a desire to engage in
conduct that the § 1985(3) defendant disfavors. Otherwise, innumerable tort
plaintiffs would be able to assert causes of action under § 1985(3) by simply
defining the aggrieved class as those seeking to engage in the activity the
defendant has interfered with. This definitional ploy would convert the statute
into the “general font of tort law” it was the very purpose of the animus
requirement to avoid.
Bray, 506 U.S. at 269. Relying on Bray, the Court of Appeals has determined that Ҥ 1985(3)
does not provide a cause of action for individuals allegedly injured by conspiracies motivated by
discriminatory animus directed toward their political affiliation.” Farber, 440 F.3d at 143.
Because Ansell’s conspiracy claims are predicated solely on animus allegedly attributable to his
criticism of Ross Township officials, all of his claims under § 1985(3) must be dismissed.
36
F.
The Malicious Prosecution Claim Asserted Against Garcia
On October 9, 2008, Ansell and Randi each contacted the RTPD and accused the other of
illegally blocking Fairley Road. Doc. No. 90, ¶ 40. Garcia responded to the calls and arrived at
the scene. Id., ¶ 41. He cited Ansell for driving on the wrong side of a roadway after discussing
the matter with him, Randi, and another resident of Fairley Road. Doc. No. 78-13, 1. In a police
report describing the incident, Garcia stated as follows:
Caller states the residents at 106 Fairley have the road blocked with their cars and
he is unable to get through. He states this is an ongoing problem. 1753: Resident
of 106 Fairley called to report that the resident at 109 Fairley is blocking the road.
Upon arrival, I viewed a H2 Hummer sitting in the opposite lane blocking traffic
from proceeding. A verbal dispute occurred between the residence [sic] of 109
Fairley Dr [sic] (William Ansell) and 106 Fairley Dr. (Randi Grubb) [sic] The
dispute was over Mrs. Grubb blocking the roadway and not allowing Mr. Ansell
from proceeding. Upon speaking with witnesses, it was determined that Mr.
Ansell failed to yield to oncoming traffic when he attempted to proceed around a
parked car. He then parked his car in the roadway and called 911. Mr. Ansell
will be cited for driving on the wrong side of a roadway (3301a2).
Id. The statutory provision referenced in Garcia’s police report provides that, “[u]pon all
roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway except .
. . [w]hen an obstruction exists making it necessary to drive to the left of the center of the
roadway, provided the driver yields the right-of-way to all vehicles travelling in the proper
direction upon the unobstructed portion of the roadway within such distance as to constitute a
hazard.” 75 PA. CONS. STAT. § 3301(a)(2).
Ansell contested the citation issued by Garcia. After a trial conducted before District
Justice Richard J. Opiela on January 5, 2009, Ansell was found “guilty.” Doc. No. 14-2, 3.
Ansell appealed his conviction to the Court of Common Pleas of Allegheny County on January
30, 2009. Id. The appeal provided him with an opportunity for a trial de novo. PA. R. CRIM. P.
37
462. The trial, which was conducted before Judge Robert C. Gallo on April 7, 2009, resulted in
Ansell’s acquittal. Doc. No. 14-2, 4.
In the amended complaint, Ansell alleges that Garcia issued the citation “without
probable cause” and “with malice.” Doc. No. 14, ¶¶ 130, 133-134. He contends that Garcia is
liable for malicious prosecution under Pennsylvania law. Doc. No. 93, 11-12. In order to hold
Garcia liable for malicious prosecution, Ansell must demonstrate that Garcia instituted criminal
proceedings against him “without probable cause” and “with malice,” and that the proceedings
were ultimately terminated in his favor. McKibben v. Schmotzer, 700 A.2d 484, 492
(Pa.Super.Ct. 1997). In this context, “probable cause” is defined as “a reasonable ground of
suspicion” supported by circumstances sufficient to warrant an objectively prudent person in the
same situation to believe that the individual against whom proceedings are brought is guilty of
the charged offense. Kelley v. General Teamsters, Chauffeurs, & Helpers, Local Union 249, 544
A.2d 940, 942 (Pa. 1988).
Relying on Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83 (Pa.Super.Ct. 1995),
Garcia argues that Ansell’s initial conviction precludes his malicious prosecution claim even
though his subsequent appeal ultimately resulted in an acquittal. Doc. No. 75, 5-6. In Cosmas,
the Pennsylvania Superior Court stated that an overturned conviction continues to operate as
“conclusive proof of the existence of probable cause” in a subsequent action for malicious
prosecution “unless the convicted party can show fraud or other undue influences at work in the
conviction proceedings.” Cosmas, 660 A.2d at 86 (footnote omitted). The language in Cosmas
relied upon by Garcia, however, is not consistent with the Superior Court’s earlier decision in
Cap v. K-Mart Discount Stores, Inc., 515 A.2d 52, 54 (Pa.Super.Ct. 1986). The United States
Court of Appeals for the Third Circuit has recognized the inconsistency between Cosmas and
38
Cap. Mosley v. Wilson, 102 F.3d 85, 92-94 (3d Cir. 1996). In light of this inconsistency, the
extent to which Ansell’s initial conviction precludes him from litigating the issue of probable
cause in this action presents an unsettled question of Pennsylvania law.
There is no need for the Court to determine whether the conviction serves as “conclusive
proof of the existence of probable cause” in the present context. Cosmas, 660 A.2d at 86. Even
if it is assumed that Ansell can litigate the issue of probable cause in this case, he has an
affirmative obligation to prove that Garcia lacked probable cause to issue the citation. Johnson
v. Land Title Bank & Trust Co., 198 A. 23, 24 (Pa. 1938). Although a lack of probable cause can
sometimes be proven by reference to circumstantial evidence, it cannot be inferred simply
because the charge at issue ultimately resulted in an acquittal. Miller v. Pennsylvania Railroad
Co., 89 A.2d 809, 811-812 (Pa. 1952); Jones v. MacConochie, 56 A.2d 284, 286 (Pa.Super.Ct.
1948). Ansell points to nothing in the record which suggests that Garcia did not have probable
cause to issue the citation. Instead, he simply asserts that the issue of probable cause in this case
“rests entirely on the credibility of witnesses.” Doc. No. 93, 11. This assertion appears to be
based on the alleged falsity of the information provided to Garcia by Ansell’s neighbors. The
existence or nonexistence of probable cause, however, does not turn on the underlying question
of guilt or innocence. McMillan v. First National Bank of Berwick, 978 A.2d 370, 372, n. 1
(Pa.Super.Ct. 2009). If Ansell wishes to premise his malicious prosecution claim on the theory
that the information provided by his neighbors was false, he must demonstrate that Garcia either
knew or should have known the information to be false. Wagner v. Waitlevertch, 774 A.2d 1247,
1253 (Pa.Super.Ct. 2001). He cannot surmount this hurdle simply by establishing the falsity of
that information. Id. (“Probable cause may even be based upon erroneous information if at the
time of the arrest, a reasonable officer would not have known of the error.”).
39
In order to proceed with his malicious prosecution claim, Ansell must also establish that
Garcia acted with “malice.” Miller, 89 A.2d at 813. “Malice” exists where a defendant acts on
the basis of “hatred or ill will,” or where his or her actions “evidence a ‘reckless and oppressive
disregard [for] the plaintiff’s rights.’” Doherty v. Haverford Township, 513 F.Supp.2d 399, 409
(E.D.Pa. 2007), quoting Hugee v. Pennsylvania Railroad Co., 101 A.2d 740, 743 (Pa. 1954).
Although Ansell makes reference to hostile statements made by Freedman during a Board
meeting conducted on August 11, 2008, he does not explain how those statements relate to
Garcia’s issuance of the citation two months later. Doc. No. 93, 11. Under certain
circumstances, malice can be inferred from an officer’s decision to initiate criminal charges in
the absence of probable cause. Hugee, 101 A.2d at 743. In this case, however, Ansell cannot
establish that probable cause was lacking. Therefore, Garcia is entitled to summary judgment
with respect to Ansell’s malicious prosecution claim.
In the amended complaint, Ansell names Garcia in both his personal and official
capacities. Doc. No. 14, ¶¶ 129-136. As discussed earlier, an official-capacity action brought
against an official is the same as an action brought against the governmental entity that employs
him or her. Graham, 473 U.S. at 166. Given that Ansell cannot establish that Garcia committed
an actionable violation of Pennsylvania law, it follows a fortiori that Ross Township cannot be
held vicariously liable for such a violation.18 Kraus, 710 A.2d at 1147.
G.
The Claims Relating to the Board Meeting Conducted on May 11, 2009
The First Amendment to the United States Constitution provides that “Congress shall
make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to
18
The PSTCA would have most likely immunized Ross Township from Ansell’s official-capacity claim even if
Garcia had committed an actionable violation of Pennsylvania law. 42 PA. CONS. STAT. §§ 8541-8542; Parsons v.
City of Philadelphia Coordinating Office of Drug & Alcohol Abuse Programs, 833 F.Supp. 1108, 1118-1119
(E.D.Pa. 1993).
40
assemble, and to petition the Government for a redress of grievances.” U.S. CONST., AMEND. I.
The proscriptions contained in the First Amendment are applicable to state actors by virtue of the
Due Process Clause of the Fourteenth Amendment. Schlarp v. Dern, 610 F.Supp.2d 450, 457
(W.D.Pa. 2009). Ansell alleges that his First and Fourteenth Amendment rights were violated
when he was ejected from the Board meeting conducted on May 11, 2009. Doc. No. 14, ¶¶ 5572.
The Board meeting constituted a “limited public forum.”19 Galena v. Leone, 638 F.3d
186, 199 (3d Cir. 2011). In Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct.
2093, 150 L.Ed.2d 151 (2001), the Supreme Court articulated the constitutional standards
applicable to a limited public forum by stating as follows:
When the State establishes a limited public forum, the State is not required to and
does not allow persons to engage in every type of speech. The State may be
justified “in reserving [its forum] for certain groups or for the discussion of
certain topics.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819,
829, 132 L.Ed.2d 700, 115 S.Ct. 2510 (1995); see also Lamb’s Chapel [v. Center
Moriches Union Free School Dist., 508 U.S. 384, 392-393, 124 L.Ed.2d 352, 113
S.Ct. 2141 (1993)]. The State’s power to restrict speech, however, is not without
limits. The restriction must not discriminate against speech on the basis of
viewpoint, Rosenberger, supra, at 829, and the restriction must be “reasonable in
light of the purpose served by the forum,” Cornelius v. NAACP Legal Defense &
Ed. Fund, Inc., 473 U.S. 788, 806, 87 L.Ed.2d 567, 105 S.Ct. 3439 (1985).
Good News Club, 533 U.S. at 106-107. Because the meeting constituted a limited public forum,
the Board was free to limit the discussion conducted at the meeting to “issues germane to town
government.” Eichenlaub v. Township of Indiana, 385 F.3d 274, 281 (3d Cir. 2004). Even in a
limited public forum, however, a governmental entity may not engage in “an effort to suppress
19
“[T]he government’s intent in creating the forum, as well as the extent of the permissible use by the public within
the forum, determines the designation of the type of forum.” Galena v. Leone, 638 F.3d 186, 201 (3d Cir. 2011).
There is no need for an exhaustive discussion concerning the proper characterization of the forum in this case, since
the meeting’s classification as a “limited public forum” does not appear to be disputed by the parties. Doc. No. 69,
6; Doc. No. 86, 2-8.
41
expression merely because public officials oppose the speaker’s view.” Perry Education
Association v. Perry Local Educators’ Association, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d
794 (1983).
In an affidavit dated December 28, 2011, DeMarco provided the following description of
his decision to eject Ansell from the meeting:
The May 11, 2009, meeting of the Board of Commissioners was a regular
business meeting. At regular business meetings the Board of Commissioners
reviews and votes on all agenda items. Mr. Robert Ansell, the brother of William
Ansell, spoke for a period exceeding five (5) minutes. Most of what he said had
been said by either he or William Ansell at prior public meetings and private
meetings with other Township officials. After he completed his speech, I moved
the agenda to another matter, thereby ending the petitions and complaints portion
of the meeting. William Ansell then made a disruptive comment from the
audience. I told him that he was not going to speak because he was not speaking
about any new issues that had not been raised by him or Robert before. He
continued to act in a disruptive manner and I asked a police officer to escort him
from the room in order to maintain decorum and continue the meeting.
Doc. No. 80-32, 3, ¶ 6. DeMarco argues that he ejected Ansell solely to “ensure order” at the
meeting. Doc. No. 69, 7. In support of his position, he relies on a statutory provision permitting
an entity such as the Board to adopt “the rules and regulations necessary for the conduct of its
meetings and the maintenance of order.” 65 PA. CONS. STAT. § 710.
In the setting presently at issue, a government “may restrict the time, place and manner of
speech, as long as those restrictions are reasonable and serve the purpose for which the
government created the limited public forum.” Galena, 638 F.3d at 199. A viewpoint-neutral
decision by DeMarco to enforce a rule designed to maintain order at the meeting would not
constitute a violation of the First Amendment. Eichenlaub, 385 F.3d at 281 (explaining that a
presiding officer “would impinge on the First Amendment rights of other would-be participants”
if he or she were “to allow a speaker to try to hijack the proceedings, or to filibuster them”). The
42
critical factual issue is whether DeMarco acted only to maintain order, or whether Ansell’s
“viewpoint or identity” was the motivating factor behind DeMarco’s decision. Galena, 638 F.3d
at 202 (emphasis added).
The record contains declarations submitted by Ansell and Robert. In his declaration,
Ansell stated that he had not been disruptive at the meeting, and that DeMarco had “ignored”
him while he was standing at a podium and waiting for a chance to speak. Doc. No. 84-1, ¶ 18.
Robert provided a similar description of the incident. Doc. No. 84-2, ¶ 6. Viewing the evidence
in the light most favorable to Ansell, the Court assumes that he was standing at the podium and
calmly waiting for a chance to speak when DeMarco ordered his removal. Thompson, 631
F.Supp.2d at 678.
The instant factual issue can only be understood by reference to the transcript of the
meeting. At the meeting, the following colloquy occurred:
MR. ROBERT ANSELL:
You have the right to put the street back to the
width it’s supposed to be at. I’ve got a survey. I showed you a survey with a 20foot wide street. Why is the street only 16 ½ feet directly across from our
driveway? It’s not something I did. It’s not something my brother did. It’s
something that the people that live there was done from the people that they got
the home from. It’s illegal.
COMMISSIONER DeMARCO:
Okay. The time is up. I have given you a
little extra time including comments made by commissioners. Your time is up.
MR. ROBERT ANSELL:
I have got his minutes?
COMMISSIONER DeMARCO:
say, please.
MR. ROBERT ANSELL:
do about it?
No. You’re next. Just say what you want to
Exactly what we have said. What are you going to
COMMISSIONER DeMARCO:
You know what, Mr. Ansell? I’m going to
say you’re asking the same questions you’ve asked over and over and over.
43
MR. ROBERT ANSELL:
You know what? You’re an attorney. If you ask a
question 100 times and you don’t get an answer, I’m going to ask it a couple
hundred more times, because you’re not answering the problem. What is the
problem? The problem is the street is screwed up there. I didn’t cause it.
COMMISSIONER DeMARCO:
Mr. Ansell, you have asked the question.
Different commissioners, including your commissioner, they have tried to help.
They’ve tried to answer, given you answers.
MR. ROBERT ANSELL:
Answer the stuff I want. I want action.
COMMISSIONER DeMARCO:
MR. ROBERT ANSELL:
The answer you want—
I want action.
COMMISSIONER DeMARCO:
You’re not getting the answer you want.
That’s what it boils down to. You’re not receiving the answer—that is the
problem here.
MR. ROBERT ANSELL:
What answer are you giving me?
COMMISSIONER DeMARCO:
You want an answer that is going to make
you happy and to make your neighbors, the Grubbs, unhappy. That’s what this
has been about all along.
MR. ROBERT ANSELL:
I didn’t start the fight. I didn’t start the fight.
COMMISSIONER DeMARCO:
criticize this Board?
MR. ROBERT ANSELL:
If you want me—
COMMISSIONER DeMARCO:
MR. ROBERT ANSELL:
Do you understand if you criticize me, you
That’s quite unfair.
If you want to run me out—
COMMISSIONER DeMARCO:
You’re done.
MR. ROBERT ANSELL:
I’ll be back here in two weeks.
THE COURT:20
Thank you very much.
MR. ROBERT ANSELL:
Lana, I’ll be on the phone with you and Chris; and
we’ll find out what can be done. Thank you.
20
It is not clear who made this statement.
44
COMMISSIONER DeMARCO:
adopted, Resolution No. 1977.
MR. WILLIAM ANSELL:
You don’t really get it, do you?
COMMISSIONER DeMARCO:
please remove Mr. Ansell?
MR. WILLIAM ANSELL:
Okay. Next on the agenda, resolutions to be
Mr. Ansell, we’re done. Officer, could you
Did I get my five minutes?
COMMISSIONER DeMARCO:
No. I said you’re done, because we are not
talking about anything new. We’re talking about the same thing over and over.
And I’m asking Officer Grubb to remove you, because we are talking about the
same thing.
MR. WILLIAM ANSELL:
I got something new.
COMMISSIONER DeMARCO:
Thank you.
Officer Grubb, please remove Mr. Ansell.
MR WILLIAM ANSELL: Are you denying me the right to talk about those big
ridiculous Opiela signs all over the township?
COMMISSIONER DeMARCO:
Please, just leave.
Doc. No. 79-5, 7-11. Given that DeMarco arguably appeared to be offended by Robert’s
criticism of the Board immediately before terminating his comments, it should be determined by
a jury whether DeMarco’s true motivation for ejecting Ansell from the meeting was to suppress
Ansell’s viewpoint. Monteiro v. City of Elizabeth, 436 F.3d 397, 404-405 (3d Cir. 2006). This
creates a genuine issue of material fact which could be suggestive of a motive to silence a
particular message or viewpoint and which could allow a reasonable jury to conclude that
Ansell’s First Amendment rights were violated when he was ejected from the meeting. Galena,
638 F.3d at 205-213 (finding insufficient evidence of an impermissible motive in a case in which
a speaker had been ejected by an official who had no knowledge of the speaker’s viewpoint or
perspective before choosing to remove him).
45
“The government must abstain from regulating speech when the specific motivating
ideology or the opinion or perspective of the speaker is the rationale for the restriction.”
Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 829, 115 S.Ct.
2510, 132 L.Ed.2d 700 (1995). Even in a limited public forum, viewpoint-based discrimination
is presumed to be impermissible when it is “directed against speech otherwise within the forum’s
limitations.” Id. at 830. The fact that Ansell and Robert were permitted to discuss the situation
concerning Fairley Road on previous occasions precludes a determination that Ansell’s
anticipated comments were not “germane to town government.” Eichenlaub, 385 F.3d at 281.
Admittedly, the Board was not required to give Ansell unlimited amounts of time to repeatedly
articulate the same arguments again and again. Id. In this instance, however, Ansell was not
only silenced, but also removed. This apparently occurred just as Ansell was preparing to speak.
The transcript indicates that DeMarco asked Grubb to eject Ansell in response to a single
question. Doc. No. 79-5, 10. DeMarco stated that Ansell was being removed from the meeting
because he and his brother had been “talking about the same thing over and over.” Id. The
minutes of the meeting stated that Ansell had been removed because “nothing new was being
addressed.” Doc. No. 14-16. Nothing in the transcript or minutes of the meeting confirms
DeMarco’s contention that Ansell was being disruptive. On the basis of the existing record, the
Court cannot conclude as a matter of law that DeMarco ordered Ansell’s removal from the
meeting for the sole purpose of maintaining order, and without reference to his “opinion or
perspective.” Rosenberger, 515 U.S. at 829.
It remains to be determined whether DeMarco is entitled to qualified immunity. In
Monteiro v. City of Elizabeth, 436 F.3d 397, 404 (3d Cir. 2006), the United States Court of
Appeals for the Third Circuit recognized that “clearly established” law requires a public official
46
to “conform [his or] her conduct to the requirements of the First Amendment” when acting to
eject a speaker from a public meeting. The Court of Appeals went on to state that “[i]n cases in
which a constitutional violation depends on evidence of a specific intent, ‘it can never be
objectively reasonable for a government official to act with the intent that is prohibited by law.’”
Monteiro, 436 F.3d at 404, quoting Locurto v. Safir, 264 F.3d 154, 169 (2d Cir. 2001). It was
further noted that “[m]otive is a question of fact that must be decided by a jury, which has the
opportunity to hear the explanations of both parties in the courtroom and observe their
demeanor.” Monteiro, 436 F.3d at 405. The holding in Monteiro is directly on point and
dispositive of DeMarco’s motion for summary judgment. Since a reasonable trier of fact could
conclude that DeMarco ordered Ansell’s removal on the basis of an impermissible motive,
DeMarco’s motion for summary judgment must be denied.
Ansell also alleges that Grubb violated his First Amendment rights by removing him
from the meeting at DeMarco’s request. Doc. No. 14, ¶¶ 55-72. This claim is highly
problematic. DeMarco’s potential liability for ordering Ansell’s removal from the meeting is
based on an alleged improper motive. Monteiro, 436 F.3d at 404-405. Ansell points to nothing
in the record which suggests that Grubb shared DeMarco’s motivation for the ejection. Doc. No.
86, 2-8. In order for official conduct to be actionable in this context, a plaintiff must show that
his or her constitutionally protected activities were a “substantial” or “motivating factor” behind
that conduct.21 Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274,
285-287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Suppan v. Dadonna, 203 F.3d 228, 235-237 (3d
Cir. 2000). Robert Bellan (“Bellan”), Ross Township’s most recent Chief of Police, testified that
21
In the event that a plaintiff is able to surmount this hurdle, the defendant can nevertheless defeat the claim by
showing, by a preponderance of the evidence, that he or she would have taken the same action in relation to the
plaintiff even if the plaintiff had not engaged in activities entitled to First Amendment protection. Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274, 285-287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
47
Grubb had been under an obligation to follow DeMarco’s instructions. Doc. No. 78-26, 14-15.
Since this testimony is uncontradicted, no reasonable trier of fact could conclude other than that
Grubb ejected Ansell from the meeting solely because DeMarco had asked him to do so. For this
reason, Ansell’s First Amendment claim against Grubb must be dismissed.22
Ansell alleges that his removal from the meeting constituted a violation of his Fourth
Amendment rights. Doc. No. 14, ¶¶ 161-169. This allegation is based on the idea that he was
unreasonably “seized” when Grubb escorted him from the meeting. Id., ¶¶ 164, 167. Under the
present circumstances, however, Ansell’s claims are not viable. The Supreme Court has defined
the term “seizure” as “a governmental termination of [an individual’s] freedom of movement
through means intentionally applied.” Brower, 489 U.S. at 597 (emphasis omitted). Nothing in
the record suggests that Ansell’s “freedom of movement” was impeded by his ejection from the
meeting. Ansell cannot establish the existence of a “seizure” merely by showing that Grubb
made contact with his body during the encounter. Mellott v. Heemer, 161 F.3d 117, 124-125 (3d
Cir. 1998). “A seizure occurs whenever a police officer restrains a person’s freedom and
prevents him or her from walking away.” Gale v. Storti, 608 F.Supp.2d 629, 633 (E.D.Pa. 2009).
Since Ansell’s ejection from the meeting did not inhibit his ability to move freely, he was not
“seized” within the meaning of the Fourth Amendment. Id. (explaining that a plaintiff could not
establish that he was “seized” simply by showing that “he did not want to leave the premises, but
was forced to”). Consequently, the Court will dismiss all of Ansell’s Fourth Amendment claims
22
At a minimum, Grubb is entitled to qualified immunity. Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 89
L.Ed.2d 271 (1986)(remarking that the standard for determining whether a defendant is entitled to qualified
immunity “gives ample room for mistaken judgments”).
48
based on the actions taken by DeMarco and Grubb at the meeting.23 Grubb will be dismissed as
a party to this case.
Given that Ansell’s First Amendment claim against DeMarco must proceed to trial, the
Court must determine whether his concomitant claim against Ross Township should likewise
proceed to trial. A governmental entity such as Ross Township cannot be held liable under §
1983 for injuries “inflicted solely by its employees or agents.” Monell, 436 U.S. at 694. Instead,
a local government may be held liable under § 1983 only for violations of federal rights resulting
from the “execution of [its] policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy.” Id.
Ross Township argues that Ansell’s First Amendment claim must be dismissed because
DeMarco’s decision to remove Ansell from the meeting was an isolated incident and did not
involve “widespread” conduct. Doc. No. 69, 10-12. The tenor of this argument suggests that
Ross Township misunderstands the inquiry required under Monell. A local governing body is
clearly liable under § 1983 for constitutional injuries caused by the implementation or execution
of “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by
that body’s officers.” Monell, 436 U.S. at 690. “Similarly, an act performed pursuant to a
‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly
subject a municipality to liability on the theory that the relevant practice is so widespread as to
have the force of law.” Board of County Commissioners v. Brown, 520 U.S. 397, 404, 117 S.Ct.
1382, 137 L.Ed.2d 626 (1997). It is only in the latter case that a practice must be “widespread”
to result in a finding of municipal liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 481,
106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)(remarking that “where action is directed by those who
23
Since DeMarco and Grubb did not violate Ansell’s Fourth Amendment rights, Ansell’s Fourth Amendment claim
against Ross Township must be dismissed. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89
L.Ed.2d 806 (1986)(per curiam).
49
establish governmental policy, the municipality is equally responsible whether that action is to be
taken only once or to be taken repeatedly”).
In Board of County Commissioners v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d
626 (1997), the Supreme Court made the following observations about when a municipal entity
can be held liable under § 1983:
As our § 1983 municipal liability jurisprudence illustrates, however, it is
not enough for a § 1983 plaintiff merely to identify conduct properly attributable
to the municipality. The plaintiff must also demonstrate that, through its
deliberate conduct, the municipality was the “moving force” behind the injury
alleged. That is, a plaintiff must show that the municipal action was taken with
the requisite degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.
Where a plaintiff claims that a particular municipal action itself violates
federal law, or directs an employee to do so, resolving these issues of fault and
causation is straightforward. Section 1983 itself “contains no state-of-mind
requirement independent of that necessary to state a violation” of the underlying
federal right. Daniels v. Williams, 474 U.S. 327, 330, 88 L.Ed.2d 662, 106 S.Ct.
662 (1986). In any § 1983 suit, however, the plaintiff must establish the state of
mind required to prove the underlying violation. Accordingly, proof that a
municipality’s legislative body or authorized decisionmaker has intentionally
deprived a plaintiff of a federally protected right necessarily establishes that the
municipality acted culpably. Similarly, the conclusion that the action taken or
directed by the municipality or its authorized decisionmaker itself violates federal
law will also determine that the municipal action was the moving force behind the
injury of which the plaintiff complains.
Brown, 520 U.S. at 404-405 (emphasis in original). Ross Township does not deny that DeMarco
acted as its “authorized decisionmaker” when he asked Grubb to remove Ansell from the
meeting. Bellan testified that Grubb had been under a duty to follow DeMarco’s order requiring
Ansell’s removal. Doc. No. 78-26, 14-15. In light of DeMarco’s status as Ross Township’s
“authorized decisionmaker,” a determination that he intentionally violated Ansell’s First
Amendment rights would necessitate a finding that Ross Township itself “acted culpably.”
Brown, 520 U.S. at 405. Therefore, Ross Township’s motion for summary judgment will be
50
denied with respect to the First Amendment claim stemming from Ansell’s ejection from the
Board meeting.24 Schlegel v. Craft, Civil Action No. 03-268, 2005 WL 1949551, at *2-3, 2005
U.S. Dist. LEXIS 16798, at *4-10 (W.D.Ky. Aug. 11, 2005)(denying a municipality’s motion for
summary judgment where the plaintiff was able to produce evidence suggesting that he had been
removed from a public meeting at the behest of the “presiding officer”).
H.
The First Amendment Retaliation Claims Asserted Against RTPD Members
Ansell’s First Amendment claims against Freedman, White, Wuycheck, Chuberko,
Zegar, LaMonica, Garcia, Serowik, Sypolt and Clifford are premised on the multiple parking
citations that Ansell received. Doc. No. 14, ¶ 87. Ansell alleges that the citations were issued in
retaliation for statements made by him at several Board meetings. Id., ¶ 82. In order to establish
that his First Amendment rights were violated by the issuance of the citations, Ansell must
demonstrate that he engaged in expressive activities entitled to constitutional protection, and that
those activities were a “substantial” or “motivating” factor behind the officers’ respective
decisions to issue the citations.25 Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006);
Eichenlaub, 385 F.3d at 282. There is no question that Ansell’s activities were protected by the
First Amendment. Thomas v. Collins, 323 U.S. 516, 531, 65 S.Ct. 315, 89 L.Ed. 430
(1945)(describing the wide range of expressive activities entitled to First Amendment
protection). The defending officers challenge the viability of Ansell’s claims only with respect
to the issue of causation. Doc. No. 75, 2-4.
24
Ansell’s official-capacity claim against DeMarco is duplicative of his claim against Ross Township. Malone v.
Economy Borough Municipal Authority, 669 F.Supp.2d 582, 604-605 (W.D.Pa. 2009). Consequently, the Court
considers the official-capacity claim against DeMarco and the claim against Ross Township to be the same claim.
Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)(explaining that “an officialcapacity suit is, in all respects other than name, to be treated as a suit against the entity”).
25
A defendant can defeat a retaliation claim grounded in the First Amendment by establishing that he or she would
have taken the same action in relation to the plaintiff even in the absence of the plaintiff’s protected activities.
Latessa v. New Jersey Racing Commission, 113 F.3d 1313, 1319 (3d Cir. 1997).
51
During his deposition, Ansell consistently acknowledged that he had no specific evidence
implicating individual members of the RTPD in efforts to punish him for statements that he had
made to Ross Township officials. Doc. No. 77-3, 10-14, 17; Doc. No. 77-4, 5. The officers rely
on Ansell’s testimony in support of their motion for summary judgment. Doc. No. 75, 2-4.
Ansell contends that a jury could infer causation from the timing of the citations and the alleged
“intervening period of antagonism.” Doc. No. 93, 4; Farrell v. Planters Lifesavers Co., 206 F.3d
271, 281 (3d Cir. 2000). He argues that only a finder of fact can determine whether his
constitutionally protected activities were a “substantial” or “motivating” factor behind the police
actions at issue. Doc. No. 93, 1-9.
The Court acknowledges that an inference of causation or retaliatory motive can
sometimes be drawn from circumstantial evidence. Merkle v. Upper Dublin School District, 211
F.3d 782, 795 (3d Cir. 2000). The problem with Ansell’s argument, however, is that it ignores
the typical factual predicate from which an inference of retaliation can be drawn. Ansell does
not contend that a single police officer engaged in a pattern of retaliatory harassment. Instead, he
claims that multiple officers issued citations to him in retaliation for his constitutionally
protected activities. In this context, each citation must be considered separately. O’Connor v.
City of Newark, 440 F.3d 125, 127-128 (3d Cir. 2006)(“First Amendment retaliation claims are
always individually actionable, even when relatively minor.”). In order to hold a particular
officer liable for issuing a particular citation, Ansell must produce sufficient evidence to support
a finding that the officer in question was actually aware of his complaints to Ross Township
officials. Gorum v. Sessoms, 561 F.3d 179, 188 (3d Cir. 2009). The timing of a citation’s
issuance can constitute probative evidence of a retaliatory animus only where it is coupled with
evidence suggesting that the officer responsible for issuing the citation actually knew about
52
Ansell’s protected statements. Ambrose v. Township of Robinson, 303 F.3d 488, 494 (3d Cir.
2002)(“The cases listed above found temporal proximity to be relevant in establishing that
protected activity was a substantial or motivating factor for retaliation. None of these cases
suggest that temporal proximity can be used to show that an employer was aware of the protected
conduct in the first place.”).
Ansell makes no attempt to establish that the officers who issued citations to him were
aware of his expressive and petitioning activities. Although he contends that Wuycheck cited
him for “illegal parking” on April 9, 2009, in retaliation for his acquittal in the Court of Common
Pleas two days earlier, Ansell points to nothing in the record which suggests that Wuycheck was
aware of the acquittal when the citation was issued. Doc. No. 93, 9. The First Amendment
claims asserted against the officers cannot proceed to trial solely on the basis of speculation. The
record indicates that Ansell has been involved in an ongoing dispute with his neighbors about the
parking situation on Fairley Road. If the Court were to permit his claims to proceed simply on
the basis of conjecture, he would be able to insulate himself from legitimate law enforcement
actions by continuing to voice complaints. Lauren W. v. DeFlaminis, 480 F.3d 259, 267-268 (3d
Cir. 2007).
The Court acknowledges that an “otherwise legitimate and constitutional” act of law
enforcement violates the First Amendment when it is undertaken for the purpose of retaliating
against an individual for engaging in expressive activities. Anderson v. Davila, 125 F.3d 148,
161 (3d Cir. 1997). The members of the RTPD are not free to punish Ansell for his statements at
Board meetings by citing him for violations that would normally be overlooked. Nevertheless,
Ansell cannot proceed with First Amendment claims against ten different police officers based
solely on the aggregate number of citations that he received during the relevant period of time.
53
O’Connor, 440 F.3d at 127-128. If it were otherwise, many innocent police officers would be
forced to “stand trial or face the other burdens of litigation” solely because some of their
colleagues have engaged in unlawful forms of retaliation. Mitchell, 472 U.S. at 526. Given that
Ansell points to no evidence which establishes that a particular citation was issued in retaliation
for his complaints to Ross Township officials, summary judgment will be entered in favor of
Freedman, White, Wuycheck, Chuberko, Zegar, LaMonica, Garcia, Serowik, Sypolt and
Clifford. These defendants will be dismissed as parties to this case. Since Ansell cannot
demonstrate that individual members of the RTPD violated his First Amendment rights by
issuing the citations, the claims against Ross Township pertaining to those citations will likewise
be dismissed. Heller, 475 U.S. at 799.
VI.
Conclusion
Since Castellano has not moved for summary judgment, the Court has no occasion to
address the merits of the First Amendment, assault and battery claims asserted against him. Doc.
No. 14, ¶¶ 73-93, 110-121. A genuine issue of material fact exists as to whether DeMarco
ordered Ansell’s removal from the Board meeting of May 11, 2009, for the purpose of
suppressing his expressive and petitioning activities. Therefore, the motion for summary
judgment filed by DeMarco and Allegheny County (Doc. No. 68) will be denied with respect to
the First Amendment claims pertaining to the meeting. The motion will be granted in all other
respects. The motions for summary judgment filed by the deputies employed by Allegheny
County (Doc. No. 66) and the police officers employed by the RTPD (Doc. No. 74) will be
granted in their entirety. The motion for summary judgment filed by Rustin and Allegheny
County (Doc. No. 70) will likewise be granted, but the claims asserted against them will be
dismissed without prejudice. Allegheny County, Grubb, Freedman, Orsino, White, Wuycheck,
54
Chuberko, Zegar, LaMonica, Garcia, Serowik, Sypolt, Clifford, Rustin, Longo, Stokes, George
and Stegena will be dismissed as parties to this case, and the caption will be amended
accordingly.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc:
All Registered ECF Counsel and Parties
55
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