CREAMER v. SCHWARTZ et al
Filing
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MEMORANDUM OPINION AND ORDER granting 23 Motion for Summary Judgment, as explained therein. Signed by Judge Terrence F. McVerry on 9/21/16. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KAYLA CREAMER,
Plaintiff,
v.
STEPHEN SCHWARTZ in his individual and
official capacity as a police officer and JOHN
HARTMAN in his individual and official capacity
as a police officer.
Defendants.
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) 2:16-cv-201
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MEMORANDUM ORDER
Now pending before the Court is DEFENDANTS STEPHEN SCHWARTZ AND JOHN
HARTMAN'S MOTION FOR SUMMARY JUDGMENT (ECF No. 23), with brief, Concise
Statement of Material Facts (“CSMF”) and exhibits in support (ECF Nos. 24, 25). Plaintiff
Kayla Creamer has filed a response, brief, and counter-statement of facts1 in opposition to the
motion. (ECF Nos. 28, 29, 30). Defendants filed a reply brief and response to Plaintiff’s
counter-statement of facts (ECF Nos. 31, 32).
I.
Factual and Procedural Background
This case arises out of an encounter on August 7, 2012 in Belle Vernon, Pennsylvania
between Plaintiff Creamer and Defendant police officers Sergeant Stephen Schwartz and Chief
of Police John Hoffman of the Southwest Regional Police Department. The gravamen of
Plaintiff's complaint is that Defendants had no "probable cause and/or reasonable suspicion
and/or exigent circumstances" to remove her dogs from her car and search its trunk. Am. Cmplt.
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The counter-statement largely re-states the allegations of the Amended Complaint, which is improper at the
summary judgment stage. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Rule 56(e) therefore requires
the nonmoving party to go beyond the pleadings.”) Plaintiff has also submitted several exhibits.
at 6. Plaintiff further contends that a subsequent search of the residence at 310(C) Market Street,
Belle Vernon, Pennsylvania, was also illegal because it was borne from the "fruit" of the illegal
search of her trunk. Id.
Plaintiff initially filed a 14-count Complaint in this Court on February 24, 2016. The
Court dismissed all but Plaintiff's malicious prosecution claims as untimely; dismissed the
malicious prosecution claims for failure to state a claim; and granted her limited leave to amend
to plead a cognizable claim for malicious prosecution. Plaintiff’s Amended Complaint again
attempts to assert malicious prosecution claims against Defendants Schwartz and Hartman under
federal and state law. Defendants renewed their Motion to Dismiss the Amended Complaint in
its entirety. Because Defendants sought to introduce additional facts, the Court converted the
motion to dismiss into a motion for summary judgment and gave both parties an opportunity to
submit additional evidence and argument. Defendants filed a motion for summary judgment and
it is now ripe for disposition.
II.
Discussion
To plead a cognizable malicious prosecution claim under Section 1983, a plaintiff must
establish that: "(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding
ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the
defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5)
the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a
consequence of a legal proceeding." Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009). A
claim for malicious prosecution under Pennsylvania law requires proof of only the first four
elements of a federal malicious prosecution claim. Wilson v. City of Philadelphia, 2016 WL
2
1392250, at *23 b. 33 (E.D. Pa. Apr. 8, 2016) (citing Haefner v. Burkey, 626 A.2d 519, 521
(1993)).
Malicious prosecution claims are unique in that a plaintiff is required to "plead a
negative" - that is, that the defendant officer(s) initiated the charges without probable cause. It is
well established that the requisite lack of probable cause is an essential element of the claim.
Thus, Plaintiff is required to plead sufficient facts to make it plausible that the Defendant police
officers lacked probable cause to file charges against her.
Wheeler v. Wheeler, 2016 WL
231581, at *2 (3d Cir. Jan. 20, 2016) (unpublished). Bald, conclusory averments that Defendants
acted without probable cause will not suffice. Id. (affirming dismissal of malicious prosecution
claims).
Based on the evidentiary record that has been developed in this case, no reasonable jury
could find that the Defendant officers lacked probable cause to file charges against Creamer.
The encounter began on August 7, 2012 at 10:00 a.m., when Chief Hartman and Sergeant
Schwartz were dispatched to a residence at 310(C) Market Street because a caller reported that
three dogs had been locked in a hot vehicle for several days. The officers arrived at the address
and confirmed that three large pit bull dogs were indeed locked in a gray Honda Accord with
Nevada license plates. The temperature was approximately 80 degrees and the officers noted
that the windows were slightly cracked for ventilation. The officers observed that the vehicle
smelled of urine, which indicated that the dogs had been in the vehicle for some time.
Fayette County SPCA (Animal Control) arrived on the scene at approximately 11:00 a.m.
The SPCA determined that the dogs were in danger and seized them. Creamer came out of the
house and admitted to her ownership of the Honda and the dogs. The SPCA advised the officers
that the condition of the dogs rose to the level of a criminal offense. Thus, despite Creamer’s
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protestations that the windows were cracked and the dogs were otherwise properly cared for,
Defendants had probable cause to charge Creamer with the crime of cruelty to animals.
The officers reasonably believed that Creamer was conducting herself in an aggressive
and belligerent manner and was creating a disturbance. At one point, she defied Sergeant
Schwartz’ order that she was under arrest by saying “No, I’m not”; attempted to walk back into
the house; and disobeyed his order to stop. Neighbors eventually convinced Creamer to submit
to authority, and she sat – without handcuffs - in the back of the police car with the door open.
Defendants seized the Honda as evidence of the cruelty to animals crime and confirmed
that Creamer was registered as the vehicle owner.
Defendants then conducted a custodial
inventory search of the vehicle to account for items of value. In the vehicle's trunk, Defendants
found a large glass jar containing suspected marijuana and paraphernalia relating to the
manufacturing of marijuana (fertilizer, high wattage light bulbs, fans and instructions).
This
evidence was seized and a towing company was ordered to secure the vehicle.
During their investigation, a witness reported to the officers that Creamer had arrived at
the house two days earlier, and that there had been a cargo container on the roof of the Honda.
The officers observed a cargo container on the ground outside the house, with its lid open. In
plain view were a blue tarp, dirt and the handles of shovels.
Based on this information, Defendant Schwartz applied for and obtained a Search
Warrant to search the home at approximately 12:10 p.m. Defendant Hartman remained at the
scene.
After the search warrant was granted by Magistrate District Judge Jesse Cramer,
Defendants searched the house at 310 C Market Street. Creamer was the only adult present at
the time. Also in the home was her six-year-old son. In the home, Defendants found a sawedoff 410 caliber shotgun; a 20 gauge shotgun; three high watt light fixtures; a bong; hydroponic
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equipment; a machete; five different types of ammunition; and a small amount of marijuana.
The shotguns and ammunition were unsecured and had been stored amongst children’s toys and
books.
Defendants applied for a search warrant for the Honda the next day, on August 8, 2012.
This warrant was also granted by Magistrate District Judge Jesse Cramer. Defendants then
searched the vehicle and found a binder labeled “Frank’s Legal Binder,” which included
extensive directions regarding how to grow marijuana; a medical marijuana license in the name
of Frank Gillon; and some computer equipment. The same day, Defendants interviewed Patricia
Joyce Gillon, the lessee of the home at 310 C Market Street. Ms. Gillon stated that Frank Gillon
(her stepson) and Creamer had moved the seized items into her home; that the items were used
for growing marijuana; and that Frank Gillon admitted that the sawed-off shotgun was his. Ms.
Gillon executed a Waiver and Consent to Search form. Also on August 8, Schwartz obtained
another search warrant for the computer equipment. Upon examination, Sergeant Schwartz
found pictures of Frank Gillon holding large marijuana plants.
As part of the investigation, Defendants submitted the seized weapons to the
Pennsylvania State Police Crime Lab for analysis. On February 22, 2013, Schwartz received a
ballistics report from the Crime Lab regarding the sawed-off shotgun. The gun was operational;
it serial number on the shotgun was not able to be recovered, and its barrel was far shorter than
the minimum legal length.
On March 1, 2013, Schwartz applied for an arrest warrant for Creamer. Magisterial
District Judge Cramer approved the filing of the following criminal charges against Creamer: (1)
endangering the welfare of children; (2) marijuana/small amount personal use; (3) use/possession
of drug paraphernalia (20 counts); (4) cruelty to animals (3 counts); and (5) misdemeanor
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disorderly conduct. Magisterial District Judge Cramer issued the arrest warrant. Because the
issue of probable cause is dispositive, the Court need not detail the facts regarding the seizure of
Creamer and disposition of the charges against her.
Probable cause exists if there is an objectively reasonable belief at the time of the arrest
that the suspect committed a crime(s). Dowling v. Philadelphia, 855 F.2d 136, 141 (3d Cir.
1988). Under the facts and circumstances of this case, no reasonable jury could find a lack of
probable cause. Three dogs were being kept in a car in hot August weather with the windows
cracked, and the car smelled of urine. As noted above, the Fayette County SPCA personnel
arrived on scene and advised Defendants that Creamer’s mis-treatment of the three dogs was
criminal. In Lawson v. Pennsylvania SPCA, 124 F. Supp. 3d 394, 399 (E.D. Pa. 2015), the Court
recognized that “SPCA is a Pennsylvania non-profit corporation empowered to enforce
Pennsylvania law pertaining to the prevention of cruelty to animals through its Humane Society
officers.” Defendants were certainly entitled to follow the advice of the animal control agents in
filing the cruelty to animals charges against Creamer.
In Kossler v. Crisanti, the Court of Appeals explained that the existence of probable
cause for arrest on at least one charge precludes a plaintiff from succeeding on a malicious
prosecution claim with respect to any of the charges brought against her. 564 F.3d 181, 193–94
& n.8 (3d Cir. 2009) (citing Wright v. City of Philadelphia, 409 F.3d 595 (3d Cir. 2005)). The
Kossler Court noted the “considerable tension” between Wright and the case on which Creamer
relies, Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007) (probable cause on one charge does not
bar malicious prosecution claims on other charges), but noted that the earlier Wright opinion is
controlling. In this case, the Court need not reconcile Wright and Johnson because it concludes
that there was probable cause to support each of the charges filed against Creamer.
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It was entirely appropriate to seize the Honda as evidence and to conduct an inventory
search of the vehicle. This search was not illegal. United States v. Mundy, 621 F.3d 283, 287
(3d Cir. 2010) (citations omitted). Based on the discovery of the items in the trunk and the
luggage container, there was probable cause to obtain and rely on the search warrant issued by
the Magistrate District Judge for the home.
In executing the search warrant for the home, Defendants seized two shotguns and five
types of ammunition. These weapons were unsecured and were in the same area as childrens’
toys and books. Only Creamer and her six-year-old son were present in the home. Thus, there
was probable cause to charge her with endangering the welfare of a child. Creamer’s response –
that one of the guns (the sawed-off shotgun) belonged to her boyfriend – is entirely unpersuasive.
First, Frank Gillon was not present at the scene on August 7, 2012 when Defendants conducted
the search. Moreover, more than one person may have the power and intention to exercise
control over a firearm. “Possession” may be exclusive or joint; possession may be momentary or
fleeting; and possession may be actual or constructive. See Third Circuit Model Criminal Jury
Instruction 6.18.922G-4 (defining knowing possession of firearm). The officers had more than
sufficient facts to believe that Creamer exercised dominion and control over the guns and
ammunition on August 7, and placed them in close proximity to her young child.
The same “joint possession” analysis applies to the marijuana growing paraphernalia.
The officers had probable cause to believe that Creamer and Gillon jointly transported that
paraphernalia across the country in Creamer’s car. Indeed, Ms. Gillon had stated to the officers
that both Frank and Creamer had moved the items into her home.
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Finally, there was probable cause for Defendants to charge Creamer with disorderly
conduct, based on her aggressive, belligerent and defiant manner on August 7, 2012 and her
refusal to comply with Sergeant Schwartz’ order that she was under arrest.
The Court notes that the Defendant officers properly obtained search warrants for the
Honda, the home, and the computer equipment. The Court further notes that the officers
obtained an arrest warrant from Magisterial District Judge Cramer and that he approved the filing
of the criminal charges. That the arrest warrant was issued by a magistrate or judge does not, by
itself, entirely shelter an officer from liability for false arrest. However, to overcome it, a
plaintiff must show (1) that the police officer “knowingly and deliberately, or with a reckless
disregard for the truth, made false statements or omissions that create a falsehood in applying for
a warrant;” and (2) that “such statements or omissions are material, or necessary, to the finding
of probable cause.” See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997).
Plaintiff contends that Defendants omitted and/or misrepresented the following facts: (1)
that Creamer was in the residence of Patricia Gillon; (2) that Gillon was the stepmother of
Creamer’s companion, Frank Gillon; (3) that the windows in the Honda were down enough to
allow ventilation for the dogs; (4) that the dogs were properly cared for in terms of feeding,
watering and grooming; (5) that Creamer was visibly pregnant at the time of the incident; and (6)
that she was accompanied by her six-year-old child. The Court finds that, as a matter of law,
these facts are not material. They (either alone and/or in combination) would not have led to the
absence of probable cause on any of the charges filed.2 As discussed above, nothing about being
in the home of her boyfriend’s stepmother or being pregnant or having a child present is
2
In Dempsey v. Bucknell Univ., 2016 WL 4434400, at *6 (3d Cir. Aug. 22, 2016), the Court of Appeals for the
Third Circuit recently required the Court to perform a “word for word” reconstruction of the affidavit(s) at issue.
Because the evidence of probable cause in this case is so overwhelming (even assuming, arguendo, the allegedly
omitted facts), the Court has addressed the materiality prong of the analysis first.
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inconsistent with the ability to possess firearms and drug paraphernalia. The presence of dogs
and a young child are actually necessary elements of the cruelty to animals and child
endangerment charges. The Court also notes that most of the challenged facts were, indeed,
disclosed to the Magisterial District Judge, including that the windows on the Honda were
cracked, that Creamer was pregnant and a small child was present, that she had recently arrived
from out-of-state, and that the sawed-off shotgun belonged to Frank Gillon.
III.
Conclusion
In summary, based on the more fully-developed record in this case, the Court concludes
that Defendants are entitled to summary judgment on all of the remaining malicious prosecution
claims. Accordingly, DEFENDANTS STEPHEN SCHWARTZ AND JOHN HARTMAN'S
MOTION FOR SUMMARY JUDGMENT (ECF No. 23) will be GRANTED.
An appropriate Order follows.
McVerry, S.J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KAYLA CREAMER,
Plaintiff,
v.
STEPHEN SCHWARTZ in his individual and
official capacity as a police officer and JOHN
HARTMAN in his individual and official capacity
as a police officer.
Defendants.
)
)
) 2:16-cv-201
)
)
)
)
)
)
)
)
ORDER of COURT
AND NOW, this 21ST day of September, 2016, IT IS HEREBY ORDERED,
ADJUDGED and DECREED that DEFENDANTS STEPHEN SCHWARTZ AND JOHN
HARTMAN'S MOTION FOR SUMMARY JUDGMENT (ECF No. 23) is GRANTED. The
clerk shall docket this case closed.
BY THE COURT:
s/Terrence F. McVerry
Senior United States District Judge
cc:
All counsel of record
(via CM/ECF)
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