LEVYS v. MORSE et al

Filing 66

MEMORANDUM OPINION indicating that, for reasons more fully stated within, the Court will grant Defendants' converted motion for summary judgment 54 and will enter summary judgment in favor of Defendants and against Plaintiff. Appropriate Orders to follow. Signed by Judge Nora Barry Fischer on 11/28/17. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LINCOLN DAVE LEVYS, JR.,
Plaintiff,
v.
JOHN V. SHAMLIN, et al.,
Defendants.

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Civ. No. 16-1624
District Judge Nora Barry Fischer

MEMORANDUM OPINION
I.

INTRODUCTION
On July 24, 2017, John V. Shamlin, William D. Mathias, Timothy Morse, and the City of

Pittsburgh Police Department (collectively “Defendants”) filed a Motion to Dismiss (Docket No.
54) the Third Amended Complaint of pro se Plaintiff Lincoln Dave Levys, Jr. (Docket Nos. 35,
44).1 Plaintiff currently advances claims pursuant to 42 U.S.C. § 1983 for alleged deprivation of
his due process and equal protection rights, in violation of the Fourth, Fifth, Sixth, and Eighth
Amendments to the Constitution of the United States. In support of dismissal of these claims,
Defendants attached numerous exhibits to their Motion. (Docket Nos. 54-1 – 5). Plaintiff similarly
attached matter outside the pleadings to his Response. (Docket No. 59-1 – 3). On September 29,
2017, the Court converted the Motion to Dismiss sua sponte to one for Summary Judgment, and
granted leave for the parties to submit additional briefing and exhibits. (Docket No. 65). The time

1

Plaintiff did not actually label these documents as being his Third Amended Complaint. Given
Plaintiff’s status as a pro se litigant, however, the Court entered Orders on May 23, 2017 and June 7, 2017
construing them as such. See (Docket No. 43) (“Plaintiff’s Response in Opposition [at Docket No. 35] …
shall be treated as the Third Amended Complaint.”); (Docket No. 45) (“[T]o the extent Plaintiff seeks to
supplement his Third Amended Complaint, his ‘Brief and Response to Motion for Clarification’ [at Docket
No. 44] shall be accepted and incorporated therein.”).

for filing supplemental material having passed, the Court has taken the Motion, briefs, and exhibits
of record into consideration. For the reasons that follow, Defendants’ Motion shall be GRANTED.
II.

FACTUAL & PROCEDURAL BACKGROUND
At approximately 12:30 a.m. on September 11, 2014, 911 dispatch alerted officers from

the City of Pittsburgh Police to a report of shots fired in the 1400 block of Amanda Avenue in the
Pittsburgh neighborhood of Carrick. (Docket Nos. 35 at 1; 54-1 at 6, 22; 54-2 at 1). Defendants
were on duty at the time and responded to the call. Of the Defendants, Officer Shamlin was the
first to proceed to the scene. (Docket Nos. 35 at 1; 54-1 at 6 – 7). While en route, and about ten
minutes after the first call, Officer Shamlin was alerted to a separate call regarding suspicious
activity in the backyard of a home at 1215 Amanda Street, which was about two blocks away from
the area of the reported shooting. (Docket Nos. 54-1 at 6 – 7; 54-3 at 1 – 2). Officer Shamlin
encountered Plaintiff walking near 1215 Amanda Street. (Docket Nos. 35 at 1; 54-1 at 2). Officer
Shamlin remained in his patrol car, rolled down his window, and inquired about Plaintiff’s
whereabouts just prior to his arrival. (Docket Nos. 35 at 1; 54-1 at 9, 24). Plaintiff informed
Officer Shamlin that he had just left his residence, confirmed that his residence was the house at
1215 Amanda Street, and then continued to walk. (Id.).
At that time, Officer Shamlin signaled two officers in another police vehicle traveling in
the opposite direction to stop Plaintiff. (Docket Nos. 35 at 2; 54-1 at 9). With their hands on their
firearms, the two officers stepped out of their vehicle, stopped Plaintiff, and began to search his
person. (Docket No. 35 at 2). Plaintiff was informed that the police had received reports of a
prowler in a nearby yard following the earlier gunfire. (Id.). Defendant Mathias then arrived, and
explained that a third call was received by the police indicating that Plaintiff was the “right person”
earlier identified as the prowler. (Id.).

2

The 911 call records show that there were multiple reports from callers that two males were
involved in the shooting and that an individual in a yard near Plaintiff’s house was discarding
clothing. See (Docket Nos. 54-2, 54-3). Accordingly, Officer Shamlin entered Plaintiff’s property
with Officer Morse and searched in the backyard for any other individuals who may potentially be
hiding there, as well as for any evidence which may have been discarded. (Docket Nos. 35 at 2;
54-1 at 11, 35). Officer Shamlin did not find any other individuals in the yard, but he did see that
two marijuana plants were growing in the yard. (Docket No. 54-1 at 11). Officers Shamlin,
Mathias, and Morse then went to Plaintiff’s residence and spoke with his fiancé. (Docket Nos. 35
at 2; 54-1 at 13, 35). The officers entered the home, finding proof of Plaintiff’s residence at the
address, but finding no other evidence of unlawful activity. (Docket No. 54-1 at 14).
Officer Shamlin filed a criminal complaint on September 11, 2014, charging Plaintiff with
the following crimes:
The actor, not being registered under the Controlled Substance,
Drug, Device and Cosmetic Act, Act [sic] of April 14, 1972, nor
being a practitioner registered or licensed by the appropriate State
Board, manufactured or possessed with intent to manufacture a
controlled substance, namely MARIJUANA, in violation of 35 P.S.
§ 780-113(a)(30).
The actor knowingly or intentionally possessed a controlled or
counterfeit substance, namely, MARIJUANA [sic] the said actor not
then and there being registered under the Controlled Substance,
Drug, Device and Cosmetic Act, Act [sic] of April 14, 1972, or a
practitioner registered or licensed by the appropriate State Board, in
violation of 35 P.S. § 780-113(a)(16).
(Docket No. 54-4). On January 30, 2015, a suppression hearing was held before Judge Thomas
Flaherty of the Court of Common Pleas of Allegheny County. (Docket No. 54-1). Following the
hearing, which included testimony from both Officer Shamlin and Officer Mathias, Judge Flaherty

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granted the motion to suppress. The charges were nolle prossed on April 28, 2015. (Allegheny
County Court of Common Pleas Docket No. CP-02-CR-0012754-2014).
Plaintiff filed a Complaint, pro se, in this Court on October 21, 2016.2 (Docket No. 1-1).
As noted, Plaintiff filed two documents on April 14, 2017 and June 6, 2017, (Docket Nos. 35, 44),
which the Court construes as his Third Amended Complaint. See note 1, supra. Defendants’
Motion to Dismiss has been fully briefed and converted3 to a Motion for Summary Judgment, and
is now ripe for disposition. The Court’s analysis follows.
III.

STANDARD OF REVIEW
Summary Judgment is appropriate when the moving party establishes “that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine issue of material fact is one that could affect the outcome of
litigation. Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “‘[w]here the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial.’” N.A.A.C.P. v. North Hudson Reg’l Fire & Rescue, 665 F.3d 464, 475 (3d
Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
2

Since the filing of the original Complaint, Plaintiff has been incarcerated due to an unrelated
criminal matter. (Docket No. 54-5). Pursuant to the federal prisoner mailbox rule, the Court deems the
date that Plaintiff signed the Complaint, rather than the date it was received and docketed, as the operative
filing date. See Pearson v. Sec’y Dep’t of Corr., 775 F.3d 598, 600 n. 2 (3d Cir. 2015).
3
When resolving a motion to dismiss, the Court may not “‘go beyond the facts alleged in the
Complaint and the documents on which the claims made therein are based.’” Bruni v. City of Pittsburgh,
824 F.3d 353, 360 (3d Cir. 2016) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1425
(3d Cir. 1997)). However, if the Court does consider matters outside the pleadings, a motion to dismiss
must be treated as one for summary judgment. Id. (citing Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). Such a conversion is typically triggered by a challenge
to the sufficiency of a claim, in conjunction with the presentation of supplemental material outside the
pleadings. Id. Once converted, the parties must be notified and provided with a “reasonable opportunity
to present all the material that is pertinent to the motion.” Id.

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The initial burden is on the moving party to adduce evidence illustrating a lack of genuine,
triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 – 24 (1986)). Once the moving party satisfies its
burden, the non-moving party must present sufficient evidence of a genuine issue, in rebuttal.
Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita Elec. Indus. Co., 475 U.S.
at 587). When considering the parties’ arguments, the Court is required to view all facts and draw
all inferences in the light most favorable to the non-moving party. Id. (citing United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)). The benefit of the doubt will be given to allegations of
the non-moving party when in conflict with the moving party’s claims. Bialko v. Quaker Oats
Co., 434 F.App’x 139, 141 n. 4 (3d Cir. 2011) (citing Valhal Corp. v. Sullivan Assocs., 44 F. 3d
195, 200 (3d Cir. 1995)).
Additionally, where the non-moving party is proceeding pro se, the Court must be flexible
in its consideration of the pleadings, as well as in the application of the technical rules of litigation.
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 – 45 (3d Cir. 2013). The court is also mindful
that, “‘an inmate who is proceeding pro se, is in a decidedly difficult position from which to
generate record evidence on his behalf.’” Smith v. Mensinger, 293 F.3d 641, 649 n. 4 (3d Cir.
2002) (quoting Brooks v. Kyler, 204 F.3d 102, 108 n. 7 (3d Cir. 2000)). Nonetheless, a wellsupported motion for summary judgment will not be defeated where the non-moving party merely
reasserts factual allegations contained in the pleadings. Betts v. New Castle Youth Dev. Ctr., 621
F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d
Cir. 1989)). The non-moving party must resort to affidavits, depositions, admissions, and/or
interrogatories to demonstrate the existence of a genuine issue. Guidotti v. Legal Helpers Debt
Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013) (citing Celotex Corp., 477 U.S. at 324).

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IV.

DISCUSSION
The Third Amended Complaint asserts that Defendants violated several of Plaintiff’s

constitutional rights, including his due process and equal protection rights under the Fourth, Fifth,
Sixth, Eighth, and Fourteenth Amendments of the United States Constitution.4 But, “[w]here a
particular Amendment provides an explicit textual source of constitutional protection against a
particular sort of government behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims.” Albright v. Oliver, 510
U.S. 266, 273 (1994) (citation and internal quotation marks omitted).

Here, the Fourth

Amendment is the explicit textual source of constitutional protection against unreasonable
searches and seizures by the government and its agents. Accordingly, Plaintiff’s due process
claims, which he asserts under the Fifth, Sixth, and Fourteenth Amendments,5 are dismissed as
duplicative to his Fourth Amendment claims. See Bradley v. Kuntz, 655 Fed. Appx’ 56, 59 (3d
Cir. 2016). Plaintiff’s attempt to assert an equal protection claim under the Eighth Amendment
fares no better. The Eighth Amendment does not apply because Plaintiff was not a convicted
prisoner serving a sentence of incarceration during the relevant time period, Natale v. Camden Cty.
Corr. Fac., 318 F.3d 575, 581 (3d Cir. 2003), and aside from his conclusory assertion that his
equal protection rights were violated, Plaintiff does not allege facts of intentional and arbitrary
discrimination by any of the Defendants to support a cognizable equal protection claim.

4

See

These claims are asserted under 42 U.S.C. § 1983. Section 1983 serves as a means of vindicating
violations of federal constitutional and statutory rights. Groman v. Twp. of Manalapan, 47 F.3d 628, 633
(3d Cir. 1995). In order to properly state a valid § 1983 claim, a plaintiff must demonstrate that a person
acting under color of law violated enumerated constitutional or statutory rights. Berg v. Cnty. of Allegheny,
219 F.3d 261, 268 (3d Cir. 2000).
5
The Fifth Amendment’s Due Process Clause only applies to actions of the federal government,
whereas the Fourteenth Amendment’s Due Process Clause applies to acts under color of state law. See B
& G Constr. Co., Inc. v. Director, Office of Worker’s Comp. Programs, 662 F.3d 233, 246 & n. 14 (3d Cir.
2011).

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Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Therefore, Plaintiff’s allegations in
this case against Defendants are properly analyzed under the Fourth Amendment.6
In this regard, Plaintiff asserts that Defendants violated the Fourth Amendment by
conducting an investigatory stop without reasonable suspicion, searching his yard without consent
or probable cause, searching his home without consent or probable cause, and wrongly placing
him under arrest, as a result. (Docket No. 35 at 3). In response, Defendants argue that there was
reasonable suspicion to stop Plaintiff based upon a tip received by an individual calling emergency
dispatch, exigent circumstances justified entry onto Plaintiff’s property where marijuana plants
were in plain view, and Plaintiff’s fiancé provided the officers with consent to search his home.
(Docket Nos. 55 at 4 – 10; 62 at 1 – 5). Defendants also argue that the officers are entitled to
qualified immunity under the circumstances of the case. (Id.). Further, to the extent that claims
are made against the City of Pittsburgh or its Police Department, Defendants argue that such claims
fail to satisfy the elements for same as established in Monell v. Dep’t of Soc. Servs. of N.Y.C., 436
U.S. 658 (1978). (Id.). For the reasons that follow, the Court agrees with Defendants that the
officers are entitled to qualified immunity and that Plaintiff’s claims against the City are deficient
under Monell.

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Plaintiff also advances claims pursuant to 18 U.S.C. §§ 241 and 242 for an alleged conspiracy to
deprive him of his constitutional rights. (Docket No. 35 at 3). The Court notes that, as such claims are
based on criminal statutes, Plaintiff lacks standing to argue violations of §§ 241 and 242. See Spell v.
Allegheny Cnty. Admin., 2015 WL 1321695, at * 4 (W.D. Pa. Mar. 24, 2015) (Ambrose, J.) (“Plaintiff’s
claims arising under 18 U.S.C. § 241 (Conspiracy Against Rights); § 242 (Deprivation of Rights Under
Color of Law); and § 245 (Federally Protected Activities), likewise must be dismissed with prejudice.
These are federal criminal statutes and, as such, do not provide for a private civil cause of action. Thus, a
violation of these statutes cannot form the basis of a private civil suit.”). Accordingly, the Court shall grant
judgment as a matter of law in favor of Defendants with respect to any claims raised under these statutes.

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A.

Qualified Immunity

At the outset, the Court acknowledges that Judge Flaherty suppressed the evidence of the
marijuana plants during Plaintiff’s criminal proceedings in state court. Although Defendants
contend that Judge Flaherty’s decision was erroneous, see (Docket No. 55 at 4 n. 2), the Court
does not have any way of assessing his reasoning, as Judge Flaherty took the matter under
advisement during the hearing, (Docket No. 54-1 at 72), and the Court has not been provided with
a copy of his written decision, to the extent one exists.7 In any event, the Court has little trouble
finding that regardless of whether Judge Flaherty’s decision granting Plaintiff’s motion to suppress
was right or wrong, the individual officer Defendants are entitled to qualified immunity in this
case.

See Burke v. Sullivan, 677 F.3d 367, 372 (8th Cir. 2012) (“Because the instant matter

concerns a claim for qualified immunity, not a motion to suppress evidence, we need not reach the
issue of whether the officers violated the dictates of the Fourth Amendment.”).
Under the doctrine of qualified immunity, government officials performing discretionary
functions are shielded from liability for damages under § 1983 insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable official would
have known. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). “A Government official’s conduct
violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a]
The Court may take judicial notice of Plaintiff’s state court criminal docket sheet. Buxton v.
Dougherty, 686 F. App’x 125, 127 (3d Cir. 2017); see also Dean v. Capozza, 2013 WL 1787804, *1 (W.D.
Pa. 2013), R&R adopted by 2013 WL 1787802 (W.D. Pa. 2013) (“Pennsylvania’s Unified Judicial System
provides online access to the docket sheets for criminal cases, and this Court may take judicial notice of
those public dockets.”). The docket sheet reveals that on February 3, 2015, Judge Flaherty ordered that the
court reporter prepare the transcript from the January 30, 2015 suppression hearing. See CP-02-CR0012754-2014
(https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-02-CR0012754-2014). The next docket entry is from approximately two months later, on April 2, 2015, wherein
the Commonwealth sought reconsideration of the order granting the motion to suppress. However, the
underlying order granting the motion to suppress is not listed on the docket sheet. On April 25, 2015, Judge
Flaherty entered an order denying the Commonwealth’s motion for reconsideration. The Court has not
been provided a copy of either order and it is unclear from the docket sheet what rationale, if any, was given
in the orders.
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right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is
doing violates the right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). To this end, the doctrine of qualified immunity operates to
give officers “breathing room to make reasonable but mistaken judgments about open legal
questions.” Id. at 743. Qualified immunity is particularly relevant in the context of the Fourth
Amendment, where it is often “difficult for an officer to know whether a search or seizure will be
deemed reasonable given the precise situation encountered.” Ziglar v. Abasi, -- U.S. --, 137 S. Ct.
1843, 1866 (2017); see also George v. Rehiel, 738 F.3d 562, 572 (3d Cir. 2013) (“Determining
whether a right alleged to have been violated is so clearly established that any reasonable officer
would have known of it ‘must be undertaken in light of the specific context of the case, not as a
broad general proposition.’” (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).
“When properly applied, qualified immunity protects all but the plainly incompetent or
those who knowingly violate the law.” Taylor v. Barkes, --- U.S. ---, 135 S. Ct. 2042, 2044 (2015).
(citation and internal alternation and quotation marks omitted).
To determine whether a given officer falls into either of those two
categories, a court must ask whether it would have been clear to a
reasonable officer that the alleged conduct was unlawful in the
situation he confronted. If so, then the defendant officer must have
been either incompetent or else a knowing violator of the law, and
thus not entitled to qualified immunity. If not, however – i.e., if a
reasonable officer might not have known for certain that the conduct
was unlawful – then the officer is immune from liability.
Ziglar, 137 S. Ct. at 1867 (citation and quotation marks omitted). Because qualified immunity “is
an immunity from suit rather than a mere defense to liability,” Mitchell v. Forsyth, 472 U.S. 511,
526 (1985) (emphasis in original), the Supreme Court has “repeatedly … stressed the importance
of resolving immunity questions at the earliest possible stage in the litigation.” Pearson v.

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Callahan, 555 U.S. 223, 232 (2009). With this standard in mind, the Court turns to Plaintiff’s
Fourth Amendment claims and the circumstances of this case.
The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const.
amend IV. The Fourth Amendment does not, however, prevent law enforcement authorities from
conducting a brief stop, known as a Terry stop, when there is “‘a particularized and objective basis
for suspecting the particular person stopped of criminal activity.’” Navarette v. Cal., --- U.S. ---,
134 S.Ct. 1683, 1687 (2014) (quoting United States v. Cortez, 499 U.S. 411, 417 – 18 (1981)).
Such a “reasonable suspicion” of criminal activity “‘is dependent upon both the content of
information possessed by police and its degree of reliability.’” Id. (quoting Ala. v. White, 496 U.S.
325, 330 (1990)). While a mere hunch is not sufficient to establish reasonable suspicion, “the level
of suspicion the standard requires is ‘considerably less than proof of wrongdoing by a
preponderance of the evidence,’ and ‘obviously less’ than is necessary for probable cause.” Id.
(quoting United States v. Sokolaw, 490 U.S. 1, 7 (1989)); see also Cortez, 449 U.S. at 418 (“The
process does not deal with hard certainties, but with probabilities.”).
In analyzing this issue, courts “look at the ‘totality of the circumstances’ of each case to
see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal
wrongdoing.” United States v. Arvizu, 534 U.S. 266, 274 (2002). “This process allows officers to
draw on their own experience and specialized training to make inferences from and deductions
about the cumulative information available to them that ‘might well elude an untrained person.”
Id. Moreover, “[w]hen officers are told to investigate a situation by a police dispatcher, as was the
case here, the court must look beyond the specific facts known to the officers on the scene to the
facts known to the dispatcher.” United States v. Torres, 534 F.3d 207, 210 (3d Cir. 2008). “In
other words, the knowledge of the dispatcher is imputed to the officer in the field when determining

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the reasonableness of the Terry stop.” Id. Whether the information relied upon by the police was
sufficient to establish reasonable suspicion depends on the “veracity, reliability, and basis of
knowledge” of the informant. United States v. Johnson, 592 F.3d 442, 449 (3d Cir. 2010).8 “[A]
tip need not bear all of the indicia – or even any particular indicium – to supply reasonable
suspicion,” since “a deficiency in one [factor] may be compensated for, in determining the overall
reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.”
Torres, 534 F.3d at 213.
In addition, given the realty that the officers’ decisions are “often made under exigent
circumstances requiring quick, decisive reactions,” courts must be mindful that a judicial
determination “[c]alculating whether an officer has reasonable suspicion to warrant a stop and
search is often an imprecise judgment.” United States v. Robertson, 305 F.3d 164, 168 (3d Cir.
2002). The typical examples of exigent circumstances include hot pursuit of a fleeing suspect,
danger to the life or well-being of others, and the potential for destruction of evidence. United
States v. Mallory, 765 F.3d 373, 384 (3d Cir. 2014) (citing United States v. Coles, 437 F.3d 361,
366 (3d Cir. 2006)). The common thread for all allegedly exigent circumstances “is imminence –
‘the existence of a true emergency.’” Id. (quoting United States v. Simmons, 661 F.3d 151, 157
(2d Cir. 2011)). In such circumstances, “the need for effective law enforcement trumps the right
of privacy and the requirement of a search warrant.” Coles, 437 F.3d at 366 (citing Warden v.
Hayden, 387 U.S. 294, 298 – 99 1967)). Even so, a determination of exigence is an objective

There are a number of factors that courts utilize when assessing the reliability of an informant’s tip,
including whether (1) the information was provided to the police in a face-to-face interaction, allowing an
officer to assess directly the informant’s credibility; (2) the informant can be held responsible if her
allegations are untrue; (3) the information would not be available to an ordinary observer; (4) the informant
has recently witnessed the criminal activity at issue; and (5) the witness’s information accurately predicts
future activity. Johnson, 592 F.3d at 449. No single factor, however, is dispositive or even necessary to
render an informant’s tip reliable. Id.
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inquiry, and the burden of demonstrating same is heavy. Mallory, 765 F.3d at 383 – 84 (citing
Brigham City v. Stuart, 547 U.S. 398, 404 (2006); Welsh v. Wis., 466 U.S. 740, 749 – 50 (1984)).
While a law enforcement officer’s leave to gather information is “sharply circumscribed
when he…enters the Fourth Amendment’s protected areas,” Jardines, 569 U.S. at 7 (quoting Cal.
v. Ciraolo, 476 U.S. 207, 213 (1986)), the “Fourth Amendment does not require police officers to
delay in the course of an investigation if to do so would gravely endanger their lives or the lives
of others.” Mallory, 765 F.3d at 384 (citation and quotation marks omitted). Further, under the
plain-view doctrine, “if police are lawfully in a position from which they view an object, if its
incriminating character is immediately apparent, and if the officers have a lawful right of access
to the object, they may seize it without a warrant.” Minn. v. Dickerson, 508 U.S. 366, 375 (1993).
In this case, several reports were made to the 911 dispatcher between 12:30 a.m. and 1:00
a.m. that (1) two individuals were involved in a shooting on the 1400 block of Amanda Street and
had fled by foot; and, (2) that two blocks away, there was a prowler in the yard near Plaintiff’s
residence at 1215 Amanda and that the prowler was discarding clothing in the yard. This
information that was conveyed to the dispatcher is imputed to Defendants for purposes of this
analysis. See Torres, 534 F.3d at 210.9 When Officer Shamlin was responding to the calls and
approaching Plaintiff’s residence, Plaintiff was walking in the vicinity and confirmed that he had
just come from 1215 Amanda Street. Under these circumstances, the Court cannot conclude that
every reasonable officer in Defendants’ shoes would have understood that detaining Plaintiff and
going into his yard to search for another individual was a violation of Plaintiff’s constitutional

Given same, Plaintiff’s assertion that there were conflicting reports about whether the shooters were
white or black men does not mean that the officers acted unreasonably in detaining him. See Torres, 534
F.3d at 212 (“We do not fault the officers’ choice to forgo extensive credibility checking in order to quickly
respond. The business of policemen and firemen is to act, not speculate or meditate on whether the report
is correct. People could well die in emergencies if police tried to act with the calm deliberation associated
with the judicial process.”) (quoting Untied States v. Sanchez, 519 F.3d 1208, 1211 n. 1 (10th Cir. 2008)).
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rights. See al-Kidd, 563 U.S. at 741. In this Court’s estimation, Defendants’ actions here were
neither plainly incompetent nor a knowing violation of the law. See Taylor, 135 S. Ct. at 2044.10
Accordingly, it follows that when Defendants saw the marijuana plants in Plaintiff’s yard when
searching it, the Defendants’ conduct of seizing the marijuana and arresting Plaintiff was justified
for purposes of qualified immunity, notwithstanding that Judge Flaherty ultimately granted
Plaintiff’s motion to suppress in his subsequent state court criminal proceeding. Indeed, Plaintiff
does not deny that the plants in his yard were in fact marijuana or that the incriminating character
of the marijuana plant was immediately apparent to Defendants. See Dickerson, 508 U.S. at 375.
See also Ariz. v. Hicks, 480 U.S. 321, 326 (1987) (in the course of an exigent search, officers may
seize contraband items in plain view without a warrant). Thus, Plaintiff’s Fourth Amendment
claims for false arrest and malicious prosecution based on the criminal charges against him for the
marijuana plants must also fail. See Johnson v. Knorr, 477 F.3d 75, 84-85 (3d Cir. 2007);
Woodyard v. Cty. of Essex, 514 Fed. App’x 177, 183 (3d Cir. 2013) (“The trial court’s later
suppression of certain witness’ out-of-court identifications is irrelevant to a determination of
whether probable cause supported the arrest warrant and the indictment.”).
Finally, Plaintiff contends that the officers coerced his fiancé into providing consent to
search his house. See United States v. Stabile, 633 F.3d 219, 230 (3d Cir. 2011) (for consent to be
valid it must be provided voluntarily and by an individual with authority). However, this assertion

The Court notes that Plaintiff also claims that the manner in which he was stopped – with the
officers’ hands on their firearms and the use of handcuffs – was inappropriate. However, because the
officers were responding to reports of shots fired and of a prowler discarding clothes nearby, they are, at
the very least, entitled to qualified immunity for this conduct. See Johnson, 592 F.3d at 448 (finding that
the officers “took only ‘such steps as were reasonably necessary to protect their personal safety and to
maintain the status quo during the course of the stop’” when they surrounded the vehicle with their guns
drawn and shouted and handcuffed the occupants). See also Baker v. Monroe Twp., 50 F.3d 1186, 1193
(3d Cir. 1995) (“There is no bright-line rule establishing that an officer’s display of his service weapon
automatically elevates an investigatory stop into an arrest.”).
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is wholly conclusory, speculative, and unsupported by the record. During the suppression hearing
before Judge Flaherty, Officer Shamlin and Officer Mathias testified that the fiancé voluntarily
consented to a search of the house. (Docket No. 54-1 at 27, 32 – 33). Plaintiff has provided no
evidence in the form of affidavits, depositions, admissions, and/or interrogatories to rebut
Defendants’ testimony. Thus, even when viewed in the light most favorable to Plaintiff, there is
no genuine dispute of material fact as to the voluntariness of consent. Guidotti, 716 F.3d at 773.
For all of these reasons, the individual Defendants are entitled to qualified immunity on all
of the claims in the Third Amended Complaint.
B.

Monell Claim against the City of Pittsburgh

Plaintiff’s claims against the City of Pittsburgh are analyzed under the framework set forth
in the Supreme Court’s decision in Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978),
which held that municipalities constitute “persons” against whom a claim may be raised under §
1983.11 See Jackson v. City of Erie Police Dep’t, 570 F.App’x 112, 114 n. 2 (3d Cir. 2014).
However, a plaintiff cannot premise liability upon a theory of respondeat superior or vicarious
liability. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 580 (3d Cir. 2004).
“A ‘person’ is not the ‘moving force behind the constitutional violation’ of a subordinate, unless
that ‘person’ – whether a natural one or a municipality – has exhibited deliberate indifference to
the plight of the person deprived.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989) (quoting

11

The City of Pittsburgh Police Department, Zone 3, presently identified as one of the Defendants in
the instant case, is not a proper party – it is not an entity separate from the municipality of which it is a part.
See Sorrells v. Phila. Police Dep’t, 652 F.App’x 81, 83 (3d Cir. 2016) (citing Bonenberger v. Plymouth
Twp., 132 F.3d 20, 25 n. 4 (3d Cir. 1997)) (courts “treat the municipality and its police department as a
single entity for purposes of section 1983 liability”). However, the Court is mindful of Plaintiff’s pro se
status, and the need to construe pleadings liberally and draw all reasonable inferences in his favor. Id. at
82. Accordingly, the Court will construe this claim as one asserted against the City of Pittsburgh. See id.
at 83 (court construed claim as one against City of Philadelphia, as opposed to its police department,
ultimately finding that it did not affect the court’s final disposition).

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City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989)). As such, in order to demonstrate
municipal liability for a constitutional violation under § 1983, a claimant must identify a municipal
policy12 or custom13 that caused same. Id. (citing Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v.
Brown, 520 U.S. 397, 403 (1997)); Williams v. Guard Bryant Fields, 535 F.App’x 205, 210 – 11
(3d Cir. 2013).
Courts have identified three fact patterns whereby the acts of municipal personnel may be
imputed to a policy or custom of a municipal entity, rendering the municipal entity liable under §
1983: (1) “where ‘the appropriate officer or entity promulgates a generally applicable statement of
policy and the subsequent act complained of is simply an implementation of that policy;’” (2)
“where ‘no rule has been announced as policy but federal law has been violated by an act of the
policymaker itself;’” and (3) “where the policymaker has failed to act affirmatively at all, though
the need to take some action to control the agents of the government ‘is so obvious, and the
inadequacy of existing practice so likely to result in the violation of constitutional rights, that the
policymaker can reasonably be said to have been deliberately indifferent to the need.’” Natale v.
Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (quoting Bryan Cnty., 520 U.S. at
417 – 18). The inquiry does not end there; a claimant must then establish that the municipal policy
or custom was the proximate cause of his or her injuries. Kneipp, 95 F.3d at 1213. A claimant
“must demonstrate a ‘plausible nexus’ or ‘affirmative link’ between the municipality’s policy or
custom and the specific deprivation of constitutional rights at issue.” Id. As long as the link is not

“A policy is made ‘when a decisionmaker possessing final authority to establish municipal policy
with respect to the action issues a final proclamation, policy, or edict.’” Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 584 (3d Cir. 2003) (quoting Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996)).
13
A custom “is an act ‘that has not been formally approved by an appropriate decisionmaker,’ but
that is ‘so widespread as to have the force of law.’” Natale, 318 F.3d at 584 (quoting Bd. of Cnty. Comm’rs
of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997)). A custom may be shown with evidence of
“knowledge and acquiescence.” Mori v. Allegheny Cnty., 51 F.Supp.3d 558, 569 (W.D. Pa. 2014) (quoting
Fletcher v. O’Donnell, 867 F.2d 791, 793 – 94 (3d Cir. 1989)).
12

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too tenuous, the jury should be left to decide whether the municipal entity’s policy or custom
caused the alleged constitutional violation. Id.
At present, Plaintiff has failed to adduce evidence supporting a Monell claim vis-à-vis any
of the aforementioned fact patterns. Instead, Plaintiff’s response to Defendants’ motion confirms
that he is improperly seeking to hold the City liable under a theory of respondeat superior. See
(Docket No. 59 at 6) (asserting that the City should be held liable for the conduct of its officers
just like parents should be held liable for the conduct of their children); Natale, 318 F.3d at 584.
As such, the Court will also enter summary judgment in favor of the City of Pittsburgh.
V.

CONCLUSION
Based upon the foregoing, the Court will grant Defendants’ converted motion for summary

judgment and will enter summary judgment in favor of Defendants and against Plaintiff.
Appropriate Orders to follow.

/s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date:

November 28, 2017

cc/ecf:

All counsel of record
Lincoln Dave Levys, Jr.
MV 2607
SCI Camp Hill
P.O. Box 200
Camp Hill, PA 17001
(via regular mail)

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