HYMAN v. CAPITAL ONE AUTO FINANCE et al
Filing
99
MEMORANDUM OPINION AND ORDER denying 91 Motion for Summary Judgment. It is further Ordered that, in accordance with Hyman's voluntary dismissal of her claim against Michael Morris, Morris is dismissed as a Defendant, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 8/14/2018. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANGELA HYMAN,
CIVIL ACTION NO. 3:17-89
JUDGE KIM R. GIBSON
Plaintiff,
v.
MICHAEL MORRIS and BRYAN
DEVLIN,
Defendants.
MEMORANDUM OPINION
I.
Introduction
Pending before the Court is the Motion for Summary Judgment (ECF No. 91) filed by
Defendant Bryan Devlin ("Devlin"), the sole remaining defendant in this case. 1 The Motion has
been fully briefed (see ECF Nos. 92 and 95) and is ripe for disposition. For the reasons stated
below, the Court will DENY Devlin's Motion.
II.
Background
A.
Factual History 2
1.
Angela Hyman Defaults on Her Loan
"Plaintiff no longer pursues her claim against [Defendant] Trooper Michael Morris." (Plaintiff's Brief, ECF
No. 95 at 3, fn. 3.)
2 The Court derives the facts contained in this section from Devlin's Concise Statement of Material Facts
(ECF No. 93), Plaintiff Angela Hyman's Responsive Concise Statement of Material Facts (ECF No. 96), and
Devlin's Response to "New Matter" Set Forth in Plaintiff's Concise Statement of Material Facts (ECF No.
98). These facts are undisputed unless otherwise indicated.
1
Plaintiff Angela Hyman ("Hyman") received a loan to finance the purchase of a new
car. 3 Hyman gave the lender, Capital One, a security interest in her car. 4 The loan agreement
gave Capital One the right to repossess Hyman's car if she defaulted on her loan payments. 5
Hyman fell behind on her monthly payments. 6 Capital One sent Hyman a notice of default
and advised her that if she failed to pay the amount due, it might repossess her car.7 Hyman
submitted a loan modification request, which Capital One denied, 8 instead deciding to exercise
its right to repossess Hyman's car. 9
Capital One hired Jeff Brunner of Commonwealth Recovery Group to carry out the
repossession. 10
2.
Brunner Arrives to Repossess Hyman's Vehicle
Brunner arrived at Hyman's home on October 5, 2016, around 7:20 p.m. 11 While the parties
agree that Brunner ultimately repossessed Hyman's car, they disagree about when the
repossession occurred. Devlin states that Brunner immediately backed his tow truck into
Hyman's driveway, hooked and strapped both sides of Hyman's car, and lifted the vehicle into
the air without incident. 12 By contrast, Hyman and her wife, Shyree Johnson, unequivocally assert
that Brunner did not hook and lift her car until after the police arrived. 13
ECF No. 93 at 'l[ l; ECF No. 96 at 'l[ 1.
ECF No. 93 at 'l[ 2; ECF No. 96 at 'l[ 2.
5 ECF No. 93 at 'l[ 3; ECF No. 96 at 'lI 3.
6 ECF No. 93 at 'l[ 4; ECF No. 96 at 'l[ 4.
7 ECF No. 93 at 'l['l[ 7, 9; ECF No. 96 at 'l['l[ 7, 9.
8 ECF No. 93 at 'l['l[ 10, 12; ECF No. 96 at 'l['l[ 10, 12.
9 ECF No. 93 at 'l[ 16; ECF No. 96 at 'l[ 16.
10 ECF No. 93 at 'l[ 17; ECF No. 96 at 'l[ 17.
11 ECF No. 93 at 'l[ 20; ECF No. 96 at 'l[ 20.
12 ECF No. 93 at 'l['l[ 21-27.
13 ECF No. 96 at 'l['l[ 22-23.
3
4
2
Johnson exited the house and requested to remove items from the vehicle.
14
Brunner
helped her remove her items. 15 Johnson brought the items inside the house and, shortly thereafter,
returned to the vehicle, got into the driver's seat, and refused to exit. 16 After Johnson entered the
vehicle, the vehicle's doors were locked, though the parties dispute whether Johnson locked the
doors from the inside or whether Hyman locked them remotely.17 The parties also dispute
whether the car was attached to Brunner's tow truck at this juncture; Devlin, citing Brunner's
testimony, claims that Hyman's car was hooked up and raised in the air, while Hyman, citing her
own testimony and that of Johnson, contends that the car was not attached to the tow truck and
was still on the ground. 18
At this point, Hyman called her daughter, a law student, and asked her for advice about
how to handle the situation. 19 Hyman claims that, on the advice of her daughter, she approached
Brunner, informed him that he was trespassing, and demanded that he vacate her property. 20
Brunner denies that Hyman or Johnson told him he was trespassing or demanded that he get off
the property. 21
ECF No. 93 at 'l['I[ 28-29; ECF No. 96 at 'l['I[ 28-29.
ECF No. 93 at '11'11 28-29; ECF No. 96 at '11'1128-29.
16 ECF No. 93 at 'l['I[ 30-32; ECF No. 96 at 'l['I[ 30-32.
17 ECF No. 93 at 'I[ 32; ECF No. 96 at 'I[ 32.
1s ECF No. 96 at 'l['I[ 33-34.
19 ECF No. 96 at 'II 95. The Court notes that Devlin denies this assertion, claiming only that "[t]he averments
set forth by Plaintiff are not supported by the reference." (ECF No. 98 at 'II 95.) Devlin responds to a large
number of the paragraphs in Hyman's "New Matter" in similar fashion. The Court reviewed the disputed
portion of Hyman's testimony referenced in paragraph 95 and concludes that, contrary to Devlin's
contention, it sufficiently supports the proposition for which it is cited, particularly given the legal standard
governing motions for summary judgment. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir.
2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)) (holding that when deciding a
motion for summary judgment, "'a court must view the facts in the light most favorable to the nonmoving
party and draw all inferences in that party's favor."').
20 ECF No. 96 at 'I[ 98.
21 ECF No. 98 at 'l['I[ 98-99.
14
15
3
At this point, Brunner called the Pennsylvania State Police. 22 Hyman also called the police,
and reported that someone was trying to take her car. 23 Hyman claims that, while everyone was
waiting for the police to arrive, she told Brunner to leave her property two more times. 24 Brunner
denies that Hyman ever ordered him to leave. 25 During this interval, Hyman stood in the doorway
to her house and Johnson remained inside Hyman's vehicle. 26
3.
The State Police Arrive
After approximately twenty minutes, Trooper Brian Black arrived. 27 Black spoke with
Brunner, who provided documentation of the repossession, and with Johnson, who refused to
exit the vehicle. 28 Black then approached Hyman and requested that she ask Johnson to exit the
vehicle so he could talk to her. 29 Hyman told Black that Johnson was her wife30 and refused to ask
her to exit the car. 31 Black returned to his cruiser and contacted Corporal Brian Devlin. 32 Black
waited in his cruiser for Devlin to arrive. 33
ECF
ECF
24 ECF
25 ECF
26 ECF
27 ECF
28 ECF
29 ECF
30 ECF
31 ECF
32 ECF
33 ECF
22
23
No. 93 at 'l[ 35; ECF No. 96 at 'l[ 35.
No. 96 at 'l['l[ 102-104; ECF No. 98 at 'l['l[ 103-104.
No. 96 at 'l[ 106.
No. 98 at 'l[ 106.
No. 93 at 'l['l[ 37, 41; ECF No. 96 at 'l['l[ 37, 41.
No. 93 at 'l['l[ 37-38; ECF No. 96 at 'l['l[ 37-38.
No. 93 at 'l[ 41; ECF No. 96 at 'l[ 41.
No. 93 at 'l[ 46; ECF No. 96 at 'l[ 46.
No. 96 at 'l[ 112; ECF No. 98 at 'l[ 112.
No. 93 at 'l[ 46; ECF No. 96 at 'l[ 46.
No. 93 at 'l['l[ 46-47; ECF No. 96 at 'l['l[ 46-47.
No. 93 at 'l[ 47; ECF No. 96 at 'l[ 47.
4
Trooper Michael Morris arrived at the scene to assist Black. 34 Morris attempted to speak
with Johnson, but she did not respond. 35 Morris then abandoned his efforts to speak with Johnson
and waited for Devlin to arrive. 36
4.
Corporal Devlin Intervenes
Devlin arrived with Trooper Elmer Hertzog. 37 After arriving, Devlin "was briefed on the
situation" and then attempted to speak to Hyman who handed Devlin a cellphone. 38 Devlin spoke
briefly to the person on the phone, an unknown woman who claimed to be an attorney or a law
student. 39 Devlin then approached the vehicle and spoke with Johnson, who was still inside. 40
The parties dispute whether Devlin knew that Johnson was Hyman's wife and whether
he understood that he was at the scen·e of a repossession. Black testified that, when he called the
barracks and spoke with Devlin, he informed Devlin that he was at "the scene of a repo" and that
the woman in the car was the owner of the vehicle. 41 By contrast, Devlin testified that he believed
he was responding "to a scene of [a] disturbance, of an unknown lady locked inside a car." 42 The
parties also disagree about whether the car was already hooked up to the tow truck when Devlin
arrived. 43
ECF No. 93 at 'l[ 48; ECF No. 96 at 'l[ 48.
ECF No. 93 at 'l[ 53; ECF No. 96 at 'l[ 53.
36 ECF No. 93 at 'l[ 54; ECF No. 96 at 'l[ 54.
37 ECF No. 93 at 'l['l[ 55-56; ECF No. 96 at 'l['l[ 55-56.
38 ECF No. 93 at 'l[ 61; ECF No. 96 at 'l[ 61.
39 ECF No. 93 at 'l[ 62; ECF No. 96 at 'l[ 62.
4o ECF No. 93 at 'l[ 62; ECF No. 96 at 'l[ 62.
41 Deposition of Brian Black, ECF No. 97-5 at 30:12-31:02.
42 Deposition of Bryan Devlin, ECF No. 94-15 at 53:12-13.
43 See ECF No. 93 at 'l[ 63; ECF No. 96 at 'l[ 63.
34
35
5
Devlin approached the car, still speaking to the woman on the phone. 44 Cell phone video
captures the interaction that ensued. 45 The Court notes that while Devlin was speaking on the
phone to Hyman's daughter, the conversation was clearly audible to Johnson-whose cell phone
video, taken from inside the car, recorded the conversation. 46 What is produced below is not an
official transcription, but rather the Court's impression of what occurred based on its viewing of
the cell phone video.
The woman on the phone informs Devlin that police may not enforce a civil contract or
take sides in civil disputes. 47 Devlin responds, "[m]a'am, what's going to happen here today is
that I've already spoken with the tower, they need to get the vehicle tonight, okay? If you're
talking with the young lady in the car ... would please tell her to get out so these gentlemen can
do their job?" 48
The woman reiterates that the police may not assist in a civil repossession. 49 Devlin replies,
"you can file a complaint on me later." 50 He continues, "[h]ere's what's going to happen. If she
doesn't get out, we're going to break the window ... she's going to be removed, she's going to be
arrested for disorderly conduct, and the car is still going to get taken." 51 After the woman on the
phone reiterates that Devlin is breaking the law, Devlin repeats that she can file a complaint
against him. 52
44 ECF No. 93 at 'II 64; ECF No. 96 at 'II 64.
4s See ECF No. 94-16.
46 See id.
47 Id. at 0:25.
4 s See id. at 0:45-1:05.
49 Id.
50 Id. at 0:58-1:00.
51 Id. at 1:15-1:25.
52 Id. at 1:55.
6
Devlin asks the woman on the phone if she has told Johnson to get out of the car yet. 53 The
woman responds that she has not spoken with Johnson but that Johnson will comply with
Devlin's order. 54 Devlin tells the woman, "[y]ou call her, tell her to do that, and once she gets out,
we'll be okay." 55
After a few seconds, Devlin taps the window of the car and tells Johnson, "I'm not going
to wait all day ... you've got about 30 more seconds." Johnson responds, "[m]y lawyer's on the
phone with the State Police." Devlin replies, "[y]ou've got 30 seconds to come out or we're
breaking the window and coming in. How long have we been here dealing with this? ... If you
refuse to come out, we're going to have to remove you, and I do not want to have to do that over
a repossessed vehicle." 56
After Johnson failed to obey Devlin's order, Devlin taps on the window again and asks,
"are you coming out? Your time is up ... yes or no? Are you coming out?" At this point, Johnson
complies with Devlin's order and exits the vehicle.
Devlin spent approximately 18 minutes at Hyman's residence. 57 Devlin admits that he
"did not witness any violence, property destruction, or threats." 58
Devlin and the other officers left Hyman's residence shortly after Johnson exited the
vehicle. 59 Hyman testified that, after Johnson vacated the car, Brenner attached the car to the tow
Id. at 2:07-2:10.
Id. at 2:10-2:17.
55 Id. at 2:20-2:27.
56 Id. at 3:10-3:26.
57 ECF No. 93 at 'l[ 68; ECF No. 96 at 'l[ 68.
5s ECF No. 93 at 'l[ 129.
59 ECF No. 93 at 'l[ 71; ECF No. 96 at 'l[ 71.
53
54
7
truck, lifted it up from the rear end, and towed the car away. 60 Devlin disputes this account and
states that Hyman's car had been hooked up before the police arrived at the scene. 61
Devlin and the other officers present at Hyman's residence "are well aware" that "law
enforcement cannot involve themselves (sic) in a civil repossession." 62
B.
Procedural History
Hyman filed her Complaint before this Court on May 30, 2017 (see ECF No. 1), followed
by an Amended Complaint on August 4, 2017 (see ECF No. 27). Hyman asserted six counts in her
Amended Complaint. 63
Capital One and Commonwealth Recovery moved for partial dismissal of Hyman's
claims against them. 64 (ECF No. 41.) The Commonwealth Defendants moved to dismiss Hyman's
§ 1983 claims, which alleged that they had violated her Fourth Amendment right against
unreasonable seizure and her Fourteenth Amendment right to procedural due process. (ECF No. ·.
39.)
See Deposition of Angela Hyman, ECF No. 9702 at 80:21-81:10.
61 ECF No. 98 at 'I[ 127.
62 ECF No. 96 at 'I[ 153; ECF No. 98 at 'I[ 153.
63 Specifically, Hyman asserted: (1) a Fair Debt Collection Practices Act Claim against Commonwealth
Recovery (id. at 'l['l[ 83-87); (2) a claim under the Pennsylvania Uniform Commercial Code against Capital
One (id. at '!I'll 88-91); (3) a conversion/trespass to chattels claim against Capital One and Commonwealth
Recovery (id. at 'l['l[ 92-96); (4) a trespass claim against Capital One and Commonwealth Recovery (id. at '!I'll
97-100); (5) a 42 U.S.C. § 1983 claim against the Pennsylvania State Police, Defendants Blocker, Morris,
Devlin, and John Doe Troopers 1-10 in their official capacities (id. at 'l['l[ 101-111); and (6) a 42 U.S.C. § 1983
claim against the Pennsylvania State Police, Defendants Blocker, Morris, Devlin, and John Doe Troopers 110 in their individual capacities (id. at 'l['l[ 111-119). Additionally, Hyman sought punitive damages against
Capital One and Commonwealth Recovery for her conversion/trespass to chattels (Count III) and trespass
(Count IV) claims.
64 Capital One and Commonwealth Recovery did not ask this Court to dismiss Plaintiff's Fair Debt
Collection Practices Act Claim (Count I) or her claim under the Pennsylvania Uniform Commercial Code
(Count II).
60
8
The Court disposed of these motions via memorandum opinion and order. (ECF No. 59.)
The Court denied Capital One and Commonwealth Recovery's Motion to Dismiss in its entirety.
(Id.) The court granted in part and denied in part the Commonwealth Defendants' Motion to
Dismiss. (Id.) Specifically, the Court granted the Motion with respect to Hyman's official capacity
claims and all claims against the Pennsylvania State Police, Blocker, and John Doe Troopers 1-10
in their individual capacities. Accordingly, the only remaining claims against any of the
Commonwealth Defendants were the§ 1983 claims against Defendants Morris and Devlin in their
individual capacities.
Subsequently, Hyman accepted Capital One and Commonwealth Recovery's Offer of
Judgment (ECF No. 82). The clerk entered judgment against these Defendants (ECF No. 84), and
they were dismissed from the case.
The remaining Defendants-Morris and Devlin-filed the pending Motion for Summary
Judgment on the remaining§ 1983 claims. (ECF No. 91.) In her Response Brief, Hyman states that
she "no longer pursues her claim against Trooper Michael Morris." 65 Therefore, the only
remaining claim is Hyman's§ 1983 claim against Devlin in his individual capacity for violating
Hyman's Fourth and Fourteenth Amendment rights.
III.
Legal Standard
"Summary judgment is appropriate only where ... there is no genuine issue as to any
material fact ... and the moving party is entitled to judgment as a matter of law." Melrose, Inc. v.
Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d
6s ECF No. 95 at 3, fn. 3.
9
Cir. 2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(a). Issues of
fact are genuine "if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also McGreevy v.
Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those that will affect the outcome of the
trial under governing law. Anderson, 477 U.S. at 248. The Court's role is "not to weigh the evidence
or to determine the truth of the matter, but only to determine whether the evidence of record is
such that a reasonable jury could return a verdict for the nonmoving party." Am. Eagle Outfitters
v. Lyle & Scott Ltd., 584 F.3d 575,581 (3d Cir. 2009). "In making this determination, 'a court must
view the facts in the light most favorable to the nonmoving party and draw all inferences in that
party's favor."' Farrell v. Planters Lifesavers Co., 206 F.3d 271,278 (3d Cir. 2000) (quoting Armbruster
v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).
The moving party bears the initial responsibility of stating the basis for its motion and
identifying those portions of the record that demonstrate the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party opposing
summary judgment "may not rest upon the mere allegations or denials" of the pleading, but
"must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp.,
260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 n.11 (1986)). "For an issue to be genuine, the nonmovant needs to supply more than a
scintilla of evidence in support of its position-there must be sufficient evidence (not mere
allegations) for a reasonable jury to find for the nonmovant." Coolspring Stone Supply v. Am. States
Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993); see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594
(3d Cir. 2005) (noting that a party opposing summary judgment "must present more than just
10
bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue")
(internal quotation marks omitted).
IV.
Discussion
A.
Introduction to the Fourth and Fourteenth Amendment
Hyman asserts her constitutional claims against Defendant Devlin under 42 U.S.C. § 1983,
which provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or
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, except that in any action brought
against a judicial officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this section, any
Act of Congress applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.
"To state a claim under§ 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (U.S. 1988)
(internal citations omitted); Reihner v. Cty. of Washington, Pennsylvania, 672 F. App'x 142, 144 (3d
Cir. 2016) (same). Hyman alleges that Devlin violated her Fourth Amendment right against
unreasonable seizure and her Fourteenth Amendment right to procedural due process by
assisting in the repossession of her vehicle.
This Court articulated the standards for stating claims under the Fourth and Fourteenth
Amendments in its previous memorandum opinion in this case:
11
"The Fourth Amendment, made applicable to the States by the Fourteenth, Ker v.
California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726 (1963), provides in
pertinent part that the 'right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated .... '" Soldal v. Cook Cty., Ill, 506 U.S. 56, 61, 113 S.Ct. 538, 543, 121 L.Ed.
2d 450 (1992). "In order to establish a claim under the Fourth Amendment, plaintiff
must show that the actions of the defendant: (1) constituted a 'search' or 'seizure;'
and (2) were unreasonable in light of the circumstances." Brown v. City of
Philadelphia, No. 10-CV-2687, 2012 WL 1758172, at *3 (E.D. Pa. May 16, 2012). "A
'seizure' of property ... occurs when 'there is some meaningful interference with
an individual's possessory interests in that property."' Soldal, 506 U.S. at 61, 113
S.Ct. at 543 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656,
80 L.Ed.2d 85 (1984)). "When analyzing whether such an interference occurred, it
is of no import that the officers did not take custody of plaintiff's property as long
as the officers participated in the seizure." Brown, 2012 WL 1758172, at *3
(citing Gale v. Storti, 608 F.Supp.2d 629, 634 (E.D. Pa. 2009)).
"The [F]ourteenth [A]mendment prohibits state deprivations of life, liberty, or
property without due process of law." Robb v. City of Philadelphia, 733 F.2d 286,292
(3d Cir. 1984). As the Third Circuit has repeatedly noted, "the core of procedural
due process jurisprudence is the right to advance notice ... and to a meaningful
opportunity to be heard." Mir v. Behnke, 680 Fed. Appx. 126, 129-30 (3d Cir. 2017)
(citing Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998) (internal quotation marks
omitted)). The Third Circuit has explained that "[i]t is elementary that procedural
due process is implicated only where someone has claimed that there has been a
taking or deprivation of a legally protected liberty or property interest." Abbott,
164 F.3d at 146 (citing Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33
L.Ed.2d 548 (1972)). Of particular importance here, it is "well established that
possessory interests in property invoke procedural due process
protections." Abbott, 164 F.3d at 146 (citing Fuentes v. Shevin, 407 U.S. 67, 87, 92
S.Ct. 1983, 32 L.Ed.2d 556 (1972)).
Hyman v. Capital One Auto Fin., 306 F. Supp. 3d 756, 769-70 (W.D. Pa. 2018) (Gibson, J.)
B.
A Reasonable Jury Could Conclude that Devlin Violated Hyman's Fourth and
Fourteenth Amendment Rights
Devlin argues that the Court should grant his Motion for Summary Judgment for three
reasons. First, Devlin contends that Hyman cannot succeed on her constitutional claims because
she lacked a cognizable property interest in her vehicle. (ECF No. 92 at 4-5.) Second, Devlin argues
12
that Hyman failed to present evidence that Devlin acted under the color of state law. Third,
Devlin asserts that even if he did act under the color of state law, he is entitled to qualified
immunity. The Court will examine these arguments in tum.
1.
Hyman Retained a Sufficient Possessory Interest in Her Car to Maintain
Her Constitutional Claims
Devlin contends-without citing to any authority-that Hyman lacked a valid property
interest in the vehicle "at the time the private company arrived to tow it" because her loan
agreement gave Capital One a security interest in her car and the right to repossess her car if she
defaulted on her loan. (Id. at 5.) In response, Hyman argues that default did not extinguish her
possessory interest in her car and that therefore she can establish her constitutional claims. (ECF
No. at 95-96.)
The Court finds that Hyman maintained a possessory interest after defaulting on her loan
payments. As one district court in the Third Circuit stated when rejecting the same argument
Devlin makes here, "[h]ad plaintiff not had an interest in the vehicle, [the creditor], by way of the
tow truck operator, would not have had a need to repossess the vehicle." Brown v. City of
Philadelphia, No. 10-CV-2687, 2012 WL 1758172, at *4 (E.D. Pa. May 16, 2012) (citing Fuentes v.
Shevin, 407 U.S. 67, 80 (1972)) (holding that debtor who defaulted on loan payments maintained
a possessory interest in her vehicle and thus could maintain due process and Fourth Amendment
claims arising from allegedly unconstitutional repossession). Accordingly, the Court holds that
Hyman maintained a property interest in her vehicle after default and thus may maintain her
constitutional claims.
13
2.
A Reasonable Jury Could Conclude that Devlin Acted Under State Law
Devlin argues that Hyman failed to establish that Devlin's conduct constituted state action
because she failed to present evidence that Devlin actively assisted in the repossession. (ECF No.
92 at 5-10.) Devin asserts that he did not "play a principal role in the repossession" (id. at 10), but
instead "respond[ed]to a disturbance that was already in progress" (id. at 9), resolved the
"stalemate" that existed when he arrived (id. at 8), and merely kept the peace. (Id. at 9.) In
response, Hyman claims that Devlin engaged in state action because he actively participated in
the repossession by ordering Johnson out of the car and threatening to break the window, remove
her, and arrest her for disorderly conduct if she failed to comply. (ECF No. 95 at 14-17.)
In the Third Circuit, the test for state action in the context of a private repossession is
"whether the officer maintains neutrality or takes an active role in the repossession resulting in
an unconstitutional deprivation." Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609-10 (3d Cir.
2011) (citing Abbot, 164 F.3d at 147.) The relevant inquiry "is whether an officer affirmatively
aided a repossession such that he can be said to have caused the constitutional deprivation."
Harvey, 635 F.3d at 610 (citing Abbot, 164 F.3d at 147). This aid "may take the form of facilitation,
encouragement, direction, compulsion, or other affirmative assistance in the repossession."
Harvey, 635 F.3d at 610 (internal citations omitted). By contrast, "[t]he mere presence of police at
the scene of a private repossession does not, alone, constitute state action." Harvey, 635 F.3d at
610 (citing Abbot, 164 F.3d at 147). Rather, "liability will only attach when an officer plays a
'principal role' in the seizure." Harvey, 635 F.3d at 610 (citing Abbott, 164 F.3d at 147).
"The distinction between maintaining neutrality and taking an active role is not to be
answered in the abstract. There is no precise formula, and the distinction lies in the particular
14
facts and circumstances of the case." Harvey, 635 F.3d at 610 (citing Burton v. Wilmington Parking
Auth., 365 U.S. 715, 722 (1961)). Thus, "[t]o determine whether a police officer acted under the
color of state law, the facts and circumstances of the police officer's role in the private
repossession must be examined in their totality." Harvey, 635 F.3d at 610 (citing Howerton v. Gabica,
708 F.2d 380,384 (9th Cir.1983)).
The Court holds that a reasonable jury could conclude that Devlin acted under the color
of state law. Hyman presented evidence that, when viewed in the light most favorable to Hyman,
would enable a jury to find that Devlin affirmatively aided the repossession. Hyman came
forward with a cell phone video that shows Devlin ordering Johnson out of the vehicle and
threatening to break the window, pull Johnson out of the car, and arrest her for disorderly
conduct if she fails to allow the repossession to occur. 66 Viewing these facts in the light most
favorable to Hyman and drawing all reasonable inferences in her favor, a jury could conclude
that Devlin actively participated in the repossession of Hyman's vehicle.
The Court rejects Devlin's contention that he did not assist in the repossession because
Hyman's vehicle was already "repossessed" when he arrived. (ECF No. 92 at 8.) Devlin and
Hyman have presented conflicting evidence about whether the car was already hooked to the
tow truck when Devlin ordered Johnson to exit. 67 Hyman testified that the tow truck did not
secure her car until after Johnson succumbed to Devlin's demands and vacated the vehicle. 68
Because this case comes before the Court at the summary judgment stage, the Court must view
See ECF No. 94-16 at 1:15-1:25.
Compare ECF No. 93 at 'lI 63 and ECF No. 96 at 'lI 63.
68 See ECF No. 96 at 'lI'lI 33-34; Testimony of Angela Hyman, ECF No. 97-2 at 80:23-81:18.
66
67
15
the facts in the light most favorable to Hyman. Thus, for the purposes of this opinion, the Court
must assume that the tow truck did not attach Hyman's car until after Johnson existed.
The only case that Devlin cites to support his argument that he did not affirmatively aid
in the repossession of Hyman's vehicle is inapposite. In Sherry v. Assocs. Commercial Corp., 60 F.
Supp. 2d 470 (W.D. Pa. 1998), the district court held that the officers did not affirmatively aid in
a private repossession. In Sherry, the officers stood at a distance away from repossession, out of
earshot of the dispute between the debtor and the tow truck sent by the creditor, and only
approached the feuding men after "tempers flared." Id. Once the policemen approached the
confrontation, the debtor brandished an "illegible facsimile of a document" and asked the
policemen, "[y]ou are going to let them take these trucks on this kind of paperwork?" Id. The
officer responded, "[y]es. They have a repo order ... You have to let them have the trucks." Id.
Despite these statements, the district court determined that, given the totality of the
circumstances, the officers merely "preserve[ d] the peace" and did not "take sides." Id.
Accordingly, the district court held that the officers did not affirmatively assist in the
repossession.
This case is clearly distinguishable from Sherry. Unlike the plaintiff in Sherry, Hyman has
presented sufficient evidence to allow a jury to conclude that Devlin affirmatively aided in the
repossession. Hyman has presented video evidence that Devlin approached Johnson, who was
not engaged in a confrontation with the tow truck operator but rather sitting alone in Hyman's
car, ordered her out of the vehicle, and threatened to break the window, forcibly remove her, and
16
arrest her if she did not obey his order. 69 Devlin's degree of affirmative action far surpassed that
of the officers in Sherry-unlike the officers in Sherry, Devlin threatened to use physical force to
remove Johnson from the vehicle and threatened to arrest her if she failed to comply. Therefore,
Devlin's analogy to Sherry fails. 70
C.
Qualified Immunity Does Not Shield Devlin
This Court articulated the standard for qualified immunity in its prior memorandum
opinion in this case. As the Court stated,
"The doctrine of qualified immunity protects government officials '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."' Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L.Ed. 2d 565
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d
396 (1982)). The Supreme Court has explained that "[q]ualified immunity balances
two important interests-the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably." Pearson, 555
U.S. at 231, 129 S.Ct. at 815.
"To resolve a claim of qualified immunity, courts engage in a two-pronged
inquiry: (1) whether the plaintiff sufficiently alleged the violation of a
constitutional right, and (2) whether the right was 'clearly established' at the time
of the official's conduct." L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235, 241 (3d Cir.
2016) (citing Pearson, 555 U.S. at 232, 129 S.Ct. 808).
Hyman, 306 F. Supp. 3d at 771-72.
See ECF No. 94-16 at 1:15-1:25.
The Court also notes that Sherry appears to have applied a more defendant-friendly standard for state
action than the standard that the Third Circuit currently applies. In Sherry, decided in 1998, the district
court applied a "significant aid" test for state action. Sherry, 60 F. Supp. 2d at 475. Today, the Third Circuit
applies an "affirmative aid" test. Harvey, 635 F.3d at 610 (stating that "[t]he relevant inquiry, then, is
whether an officer affirmatively aided a repossession such that he can be said to have caused the
constitutional deprivation.") Accordingly, to the extent that Sherry applied a different test for state action,
that test was superseded by subsequent Third Circuit case law.
69
70
17
1.
Hyman Presented Sufficient Evidence to Allow a Reasonable Jury to
Find that Devlin Violated Her Fourth and Fourteenth Amendment
Rights (Prong 1)
Hyman presented sufficient evidence to allow a jury to conclude that Devlin violated her
Fourth Amendment right to be free from unreasonable searches and seizures. Viewing the facts
in the light most favorable to Hyman, a jury could conclude that Devlin's actions constituted a
"seizure" because Devlin meaningfully interfered with Hyman's possessory interest in her car.
The fact that the officers did not physically take custody of Hyman's car is irrelevant, as Hyman
presented evidence that Devlin affirmatively participated in the seizure. See Brown, 2012 WL
1758172, at *3. Furthermore, a reasonable jury could find that this interference was unreasonable.
See Soldal, 506 U.S. at 61. Accordingly, Hyman has sufficiently established her Fourth Amendment
claim for purposes of summary judgment.
Hyman also presented sufficient evidence to allow a jury to conclude that Devlin violated
her Fourteenth Amendment right to due process. A jury could find that Devlin actively
participated in the repossession without providing Hyman with notice or a meaningful
opportunity to be heard. See Mir v. Behnke, 680 Fed. Appx. at 129-30; Abbott, 164 F.3d at 147
(holding that a constable who assisted in a repossession "was obligated to notify [the debtor] of
the seizure in advance and to provide him with a meaningful opportunity to be heard.")
Therefore, Hyman has sufficiently established her Fourteenth Amendment claim for the purposes
of summary judgment.
18
2.
In October 2016, It Was Clearly Established that Law Enforcement
Officers Assisting in a Private Repossession Could Constitute State
Action (Prong 2)
In this Court's earlier opinion in this case, the Court articulated the applicable standard
for ascertaining whether a right was "clearly established" for the purposes of evaluating qualified
immunity:
"A Government official's conduct violates clearly established law when, at the
time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear'
that every 'reasonable official would have understood that what he is doing
violates that right."' Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 2083, 179
L.Ed. 2d 1149 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.
3034, 97 L.Ed.2d 523 (1987)); Mammaro v. New Jersey Div. of Child Prat. &
Permanency, 814 F.3d 164, 169 (3d Cir. 2016), as amended (Mar. 21, 2016), cert.
denied, U.S. - - , 137 S.Ct. 161, 196 L.Ed. 2d 121 (2016) (same). "In other
words, there must be sufficient precedent at the time of action, factually similar to
the plaintiff's allegations, to put defendant on notice that his or her conduct is
constitutionally prohibited." Mammaro, 814 F.3d at 169 (quoting McLaughlin v.
Watson, 271 F.3d 566, 572 (3d Cir. 2001)) (internal quotation marks omitted).
"In conducting the inquiry into whether a right is clearly established, we look first
for 'applicable Supreme Court precedent."' Barna v. Bd. of Sch. Directors of Panther
Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017) (quoting Mammaro, 814 F.3d at
169). If no applicable Supreme Court authority exists, courts "consider whether
there is a case of controlling authority in [their] jurisdiction or a 'robust consensus
of cases of persuasive authority' in the Courts of Appeals [that] could clearly
establish a right for purposes of qualified immunity." Barna, 877 F.3d at 142
(quoting Mammaro, 814 F.3d at 169). As the Third Circuit has explained, "[t]he
authority need not be 'directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate."' Barna, 877 F.3d at 142
(quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074).
In Harvey, published in 2011, the Third Circuit held that "in the context of
private repossessions," the test for whether a police officer acts under the color of
state law "is whether the officer maintains neutrality or [instead] takes an active
role in the repossession resulting in an unconstitutional deprivation." Harvey, 635
F.3d at 609-10 (noting that "the relevant inquiry . . . is whether an officer
affirmatively aided a repossession such that he can be said to have caused the
constitutional deprivation," and explaining that "[s]uch aid may take the form of
facilitation, encouragement, direction, compulsion, or other affirmative assistance
19
in the repossession"); see also Mitchell v. Gieda, 215 Fed. Appx. 163, 165 (3d Cir.
2007) (discussing that an officer's presence at a private repossession may
constitute state action if "accompanied by affirmative intervention, aid,
intimidation, or other use of power which converts him from a neutral third party
to, in effect, an assistant of the repossessing party.")
Hyman, 306 F. Supp. 3d at 772-73.
The Court also noted that:
[O]ther Courts of Appeals apply the same test as applied by the Third Circuit,
indicating a "robust consensus of cases of persuasive authority" on the issue of
police involvement in private repossessions. See, e.g., Marcus v. McColl um, 394 F.3d
813, 818 (10th Cir. 2004)
("officers are not state actors during a
private repossession if they act only to keep the peace, but they cross the line if
they affirmatively intervene to aid the repossessor."); Harris v. City of Roseburg, 664
F.2d 1121, 1127 (9th Cir. 1981) (state action exists "when the officer assists in
effectuating a repossession over the objection of a debtor or so intimidates a debtor
as to cause him to refrain from exercising his legal right to resist a repossession.
While mere acquiescence by the police to 'stand by in case of trouble' is insufficient
to convert a repossession into state action, police intervention and aid in
the repossession does constitute state action."); Hensley v. Gassman, 693 F.3d 681,
689 (6th Cir. 2012) (noting that "the likelihood that state action will be found
increases when officers take a more active role in the repossession" because "[a]t
some
point,
as
police
involvement
becomes
increasingly
important, repossession by private individuals assumes the character of state
action."); Barrett v. Harzoood, 189 F.3d 297,302 (2d Cir. 1999) (stating that "[w]hen
an officer begins to take a more active hand in the repossession, and as such
involvement becomes increasingly critical, a point may be reached at which police
assistance at the scene of a private repossession may cause the repossession to take
on the character of state action").
Hyman, 306 F. Supp. 3d at 773, fn. 16.
The Court holds that, viewed in the light most favorable to Hyman, Devlin's conduct
violated clearly established law of which a reasonable officer should have known. In October,
2016, it was clearly established in the Third Circuit that a police officer violates the Fourth and
Fourteenth Amendments when he affirmatively aids in a private repossession. See Harvey, 635
F.3d at 609-10 (holding that when evaluating a Fourth Amendment claim arising from a
20
repossession, "the test is whether the officer maintains neutrality or takes an active role in the
repossession resulting in the unconstitutional deprivation."); Abbott, 164 F.3d at 147 (holding that
a reasonable jury could conclude that police officer violated the Fourteenth Amendment when he
actively participated in private repossession.) Therefore, the Court will deny Devlin's claim of
qualified immunity.
In Abbott, a case with similar facts, the Third Circuit reversed the district court's grant of
qualified immunity to a defendant police officer. The police officer had arrived at the scene of a
private repossession, advised the party seeking repossession that she had a right to immediate
possession of the vehicle, and threatened to arrest the attorney of the party in possession of the
vehicle if he did not move his car to allow the repossession to occur. Id. at 164 F.3d at 147. In
reversing the judgment of the district court, the Third Circuit declared that "[r]easonable police
officers should know from the established precedent of Fuentes that their role is not to be
participants in property deprivations without notice and an opportunity to be heard." Id. at 149.
The Third Circuit observed that "[t]here came a point during this incident [that the police
officer's] role changed from the protector of the peace to the enforcer," and held that" a reasonable
officer ... would have known that such behavior crossed the line of permissible conduct." Id. at
149.
The cases that Devlin cites to support his claim of qualified immunity fail to persuade this
Court. In Moore v. Carpenter, 404 F.3d 1043 (8th Cir. 2005), the Eighth Circuit affirmed the district
court's holding that the officers "were not so involved in aiding the repossession that the
deprivation of the boat is state action." Id. at 1046. But "[t]he officers did not tell the [party in
possession of the boat] the repossession was legal or that they would be arrested if they
21
interfered." Id. Here, Devlin told Johnson that Brunner "need[s] to get the vehicle tonight" 71 and
threatened to break a window, forcibly remove Johnson, and arrest her if she did not vacate the
vehicle. 72 Because Devlin unquestionably played a larger role in the repossession than the officers
in Moore, Moore does not apply here.
The Court is similarly unpersuaded by Devlin's citation to Goard v. Crown Auto, Inc., No.
6:15-CV-00035, 2017 WL 2423521, at *4 (W.D. Va. June 2, 2017). In Goard, the district court granted
qualified immunity to a policer officer who acted in an arguably neutral role and whose actions
were "not overtly supportive of the repossession." Id. at 8. But the district court simultaneously
denied qualified immunity to a second officer who threatened to arrest the plaintiff if she did not
consent to the repossession. Id. at 10. The Court rejects Devlin's assertion that his actions more
closely mirrored those of the first officer in Goard than the second officer in Goard. Devlin ordered
Johnson to get out of the vehicle, and threatened to break the window, forcibly remove Johnson
and arrest her if she failed to comply; all of which affirmatively aided the repossession. Thus,
Devlin fails to appreciate that Goard actually supports Hyman's argument that Devlin is not
entitled to qualified immunity.
In sum, the Court concludes that a reasonable jury could find that Devlin violated
Hyman's clearly established Fourth and Fourteenth Amendment rights of which a reasonable
police officer should have known. Therefore, the Court finds that Devlin is not entitled to
qualified immunity.
71
72
ECF No. 94-16 at 0:45-1:05.
Id. at 0:58-1 :00.
22
V.
Conclusion
The Court holds that Hyman presented sufficient evidence to allow a reasonable jury to
conclude that Devlin violated her Fourth and Fourteenth Amendment rights. Accordingly, the
Court will deny Devlin's Motion for Summary Judgment. The Court further holds that these
rights were clearly established at the time the repossession occurred and that a reasonable officer
should have understood and known that affirmatively assisting in a private repossession in the
manner that Hyman alleges would have violated Hyman's Fourth and Fourteenth Amendment
rights. Thus, if the factual disputes were resolved in Hyman's favor, Devlin would not be entitled
to qualified immunity. Therefore, the Court will deny Devlin's Motion for Summary Judgment
on the issue of qualified immunity.
An appropriate order follows.
23
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANGELA HYMAN,
)
)
Plaintiff,
CIVIL ACTION NO. 3:17-89
JUDGE KIM R. GIBSON
)
v.
)
)
MICHAEL MORRIS and BRYAN
DEVLIN,
)
)
)
)
Defendants.
)
ORDER
AND NOW, this
/
J./
-1-Ji
day of August, 2018, upon consideration of the Motion for
Summary Judgment (ECF No. 91), and in accordance with the accompanying memorandum
opinion, IT IS HEREBY ORDERED that the Motion is DENIED.
It is FURTHER ORDERED that, in accordance with Hyman's voluntary dismissal of her
claim against Michael Morris, Morris is dismissed as a Defendant.
BY THE COURT:
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE
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