Burkholder v. Kyhos et al

Filing 28

MEMORANDUM and ORDER granting 18 Defendants' Motion for Summary Judgment as to Plaintiff's Complaint. The Clerk shall enter judgment in favor of the defendants. So Ordered by Senior Judge Ronald R. Lagueux on 2/8/2016. (Farrell Pletcher, Paula)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND

DENNIS BURKHOLDER,
Plaintiff,
v.

C.A. No. 14-317L

OFFICER KRISTIN KYHOS,
OFFICER PAUL GINGERELLA,
SERGEANT DAVID TURANO,
Defendants.
MEMORANDUM AND ORDER
RONALD R. LAGUEUX, Senior U.S. District Court.
This matter is before the Court on Defendants’ Motion for
Summary Judgment.

The parties have not identified any

significant disputed facts, so the Court has rendered its
decision based on the parties’ briefs and the thorough record
developed during discovery.1
Argument is denied.

Defendants’ Request for Oral

Defendants are three police officers from

the town of Westerly, Rhode Island.

Plaintiff, Dennis

Burkholder, alleges that he was wrongfully arrested and
prosecuted by Defendants when they charged him with trespassing
in connection with an incident at the Westerly Home Depot store
in October 2013.

1

Because probable cause existed for Plaintiff’s

Plaintiff failed to file a Statement of Disputed Facts as
required by the District of Rhode Island’s Local Rules of civil
procedure, LR Cv 56(a)(3). However, the Court has interpreted the
facts, as set forth in the Complaint, the Plaintiff’s memorandum,
and his deposition testimony, in the light most favorable to the
Plaintiff.

arrest, the Court grants summary judgment in Defendants’ favor.
Background
Plaintiff was a frequent shopper at his local Home Depot
because of his work as a contractor.

However, on August 18,

2013, his business at the store was personal.

He had previously

bought a washing machine at another store, and now he wanted to
buy a matching dryer at Home Depot.

Because of the lapse of time

between the two purchases, Plaintiff was unable to get a dryer
with a white paint finish that was a precise match with his
washer.

The issue had dragged on for several weeks and,

apparently, one unsatisfactory dryer had already been sent to his
home.

When Plaintiff visited the store on August 18, he decided

to take the matter up with the store manager, Scarlett Driscoll.
Plaintiff acknowledges that, during this conversation, he became
angry, raised his voice, and accused Driscoll of dishonesty while
she stood on the store floor, about a couple of feet in front of
him.
When the conversation concluded, Plaintiff continued to shop
while, unbeknownst to him, Driscoll called the police.

An

officer, Michael Garafola, arrived, approached Plaintiff in the
check-out line and escorted him from the store.

In an affidavit,

Garafola states that he told Plaintiff that he could not return
to the Home Depot for two years.

Garafola states further that,

on his return to the police station, he entered “a no trespass

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concerning Mr. Burkholder and the Home Depot into the IMC
database.”

In his Complaint, Plaintiff asserts that he was never

told that Home Depot or Driscoll was “issuing or requesting that
a No Trespass Notice or Order issue against him whether pursuant
to R.I.G.L. § 11-44-26 or any other statute.”

In his deposition,

Plaintiff stated the officer who asked him to leave the store
told him that he would have to get permission from Home Depot’s
District Manager if he wanted to return.
Whatever his understanding, Plaintiff was careful to avoid
going inside the Home Depot after August 18 despite the fact that
he needed to purchase supplies there for his contracting work.
On an almost daily basis, Plaintiff dropped his son off at the
store to make the purchases, and waited in the parking lot to
pick him up.

On October 1, 2013, Plaintiff sent his son into

Home Depot and then pulled his truck up to the store’s exit in
order to help his son load some heavy items.

Plaintiff left the

parking lot without incident – however not before he was spotted
and identified by a store employee who reported back to Driscoll.
According to Plaintiff, someone from the store called the
Westerly police, and Defendants Kyhos and Gingerella came to the
store and took statements from employees. Kyhos and Gingerella
reported back to their sergeant, Defendant Turano, and an arrest
warrant for Willful Trespass was issued against Plaintiff.
Plaintiff received a call from the police department, asking

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him to turn himself in.

Plaintiff reported to the police station

on October 2, 2013, and was charged with Willful Trespass under
Rhode Island General Laws § 11-44-26.

Plaintiff was booked and

processed in approximately one hour, then he was released on his
own recognizance.

Plaintiff’s case went to trial in the Rhode

Island District Court in Washington County.
“many days” or “a few days.”

The trial lasted

The charges were ultimately

dismissed on March 26, 2014.
The Complaint
Plaintiff’s present complaint sounds in two counts.

The

first count is for false arrest and false imprisonment.
Plaintiff alleges that no probable cause existed for his arrest
because “no valid ‘No Trespass’ order or notice was in effect or
otherwise issued” to him.

Moreover, Plaintiff asserts that R.I.

Gen. Laws § 11-44-26 cannot “provide a legitimate, constitutional
basis” for probable cause because the statute is “overly broad
and impermissibly vague.”

The Complaint states:

It impermissibly deputizes private actors with the
police powers of the state by allowing them to
independently deem entries onto property illegal acts.
Such delegation of particular police powers is
unconstitutional when accompanied by the vague
directive of ‘legitimacy.’
Because Plaintiff’s arrest was not based on probable cause, the
Complaint continues, the arrest was unconstitutional and violates
Rhode Island’s law against discrimination, R.I. Gen. Laws § 42-

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112-1, and the federal statute barring state and local officials
from depriving others of their civil rights under color of state
law, 42 U.S.C. § 1983.
In Count II, Plaintiff asserts that he was the victim of
malicious prosecution and abuse of process.

Plaintiff was never

properly issued “a Notice Not to Trespass.”

When Defendants

issued the arrest warrant which led to Plaintiff’s prosecution,
they lacked probable cause to believe that he “had committed, was
committing, and/or was about to commit a crime.”

Because

Plaintiff’s arrest lacked a legitimate purpose, Defendants
committed an abuse of process and maliciously prosecuted him,
causing damages including the costs of defending the District
court lawsuit.
Standard of Review
When ruling on a motion for summary judgment, the court must
look to the record and view all facts and inferences therefrom in
the light most favorable to the nonmoving party.

Continental

Cas. Co. v, Canadian Univ. Ins. Co., 924 F.2d 370, 373 (1st Cir.
1991).

Once this is done, Rule 56(a) requires that summary

judgment be granted if there is no issue as to any material fact
and the moving party is entitled to judgment as a matter of law.
The ultimate burden of persuasion is on the moving party to
show that the undisputed facts entitle it to summary judgment as
a matter of law.

Jaroma v. Massey, 873 F.2d 17, 20 (1st Cir.

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1989).

The moving party must show that “there is an absence of

evidence to support” the non-moving party’s claim.

Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986).
If that burden is met, the nonmoving party cannot rest on
its pleadings, but must “set forth specific facts demonstrating
that there is a genuine issue for trial” as to the claim that is
the subject of the summary judgment motion.

Oliver v. Digital

Equipment Corp., 846 F.2d 103, 105 (1st Cir. 1988).
Analysis
Count I
Plaintiff’s Count I appears to include four related
allegations.

First, Plaintiff alleges that he was falsely

arrested and falsely imprisoned because there was no probable
cause for his arrest.

For these state law claims, the Court

turns to the Rhode Island Supreme Court for guidance.

In Horton

v. Portsmouth Police Department, that Court explained that “the
existence of probable cause is a complete defense to a false
arrest claim.” 22 A.3d 1115, 1122 (R.I. 2011).
Probable cause is determined under a flexible
‘totality-of-the- circumstances’ analysis.
Accordingly, establishing the existence of probable
cause to arrest a person does not require the same
degree of proof needed to determine whether that
person is guilty of the crime in question.
Id. (internal citations omitted).

The Rhode Island Supreme Court

has held that the existence of probable cause may be determined

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as a matter of law at the summary judgment stage.

Henshaw v.

Doherty, 881 A.2d 909, 917 (R.I. 2005).
In the present case, the facts are clear and undisputed.
Although Plaintiff may not have known that Officer Garafola
entered “a no trespass...into the IMC database,” Plaintiff does
concede that he was escorted from the Home Depot by police in
August 2013, and instructed not to return unless he obtained
permission from the retailer’s district manager.

Plaintiff

certainly got the message because, from that point forward, he
arranged to have his son do his shopping for him.

On October 1,

2013, Plaintiff approached the store’s doors to help his son with
some loading.

Neither the Court nor the Plaintiff is privy to

the details of Officer Garafola’s “no trespass,” for example,
whether or not it covered the parking lot or just the store,
etc.; however, it is perfectly reasonable that an employee
standing inside the store’s door would assume that Plaintiff’s
presence just outside the door indicates a possibility that he
may enter the store.

As it happened, an employee in the store

called the police, the police came and took statements, and this
led to Plaintiff’s arrest.

The Court holds that, as a matter of

law, probable cause existed for this arrest.

Consequently,

Plaintiff’s claims that he was falsely arrested and falsely
imprisoned are dismissed.
Plaintiff also alleges that the unconstitutional vagueness

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of Rhode Island’s trespass statute supports a finding that he was
falsely arrested.

The Rhode Island Supreme Court has determined

that police officers are entitled to rely upon the presumptive
validity of statutes when they make an arrest.
Bonaventura, 350 A.2d 396, 397 (R.I. 1976).

Descoteaux v.

Therefore, even if a

statute is later determined to be unconstitutional, that does not
serve as a basis for a false arrest claim.
Third, Plaintiff cites the federal civil rights statute, 42
U.S.C. § 1983, in Count I.

However, Plaintiff’s detention of

under one hour in the Westerly police station based on an arrest
for which there was probable cause does not rise to the level of
a constitutional violation, as a matter of law.

Likewise,

although Plaintiff claims Defendants violated Rhode Island’s law
against discrimination based on “race, color, religion, sex,
disability, age, or country of ancestral origin,” R.I. Gen. Laws
§ 42-112-1, he presents no evidence of discrimination to support
this claim.

Consequently, the Court grants summary judgment in

Defendants’ favor on Count I of the Complaint.
Count II
In Count II, Plaintiff alleges that he was not properly
issued a notice that he was not to trespass at Home Depot,
pursuant to R.I. Gen. Laws § 11-44-26 or any other statute.
Plaintiff alleges further that there was no probable cause for
the issuance of the arrest warrant.

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Because there was no

probable cause, the arrest lacked a legitimate purpose, which
resulted in the charges being dismissed following the trial.
According to Plaintiff, this amounts to malicious prosecution and
abuse of process.
To establish a claim of malicious prosecution, a plaintiff
must prove four elements, one of which is a lack of probable
cause for the initiation of the criminal proceeding.
Henshaw, 881 A.2d at 915.

See

As the Court has already determined

that there was probable cause to arrest and charge Plaintiff with
trespass, his claim of malicious prosecution fails as a matter of
law.
The separate, though related, tort of abuse of process
arises when a properly-initiated legal proceeding is corrupted in
order to accomplish a wrongful purpose.

Hillside Associates v.

Stravato, 642 A.2d 664, 667 (R.I. 1994).

Citing Prosser and

Keaton on the Law of Torts, the Rhode Island Supreme Court
explained:
Thus if the defendant prosecutes an innocent plaintiff
for a crime without reasonable grounds to believe him
guilty, it is malicious prosecution; if he prosecutes
him with such reasonable grounds but his ulterior
motive is to extort payment of a debt, it is abuse of
process.
Hillside Associates, 642 A.2d at 667.

Though Plaintiff makes the

allegation of abuse of process, he has not provided any evidence
to demonstrate that his prosecution was, at any point, corrupted

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or motivated by an ulterior motive or animus.

In point of fact,

the outcome of the trial was favorable for Plaintiff, as the
charges were dismissed.
The issue of notice to Plaintiff concerning the order
entered into the “IMC system” by Officer Garafola is a red
herring.

Rhode Island’s willful trespass statute, § 11-44-26,

defines trespass as entering the land “after having been
forbidden to do so by the owner of the land or the owner’s duly
authorized agent...”
order is required.

No written notice or formal entry of an
Plaintiff’s own account of the events of

August 2013 – that he was escorted from the store by a police
officer and told that he could not return unless he received
permission from the chain’s district manager – constitutes
sufficient warning to comply with the statute.
Plaintiff also asserts that the fact that the charges
against him were ultimately dismissed demonstrates that he was
wrongfully prosecuted.

The standard for conviction, that guilt

exists beyond a reasonable doubt, is a more burdensome standard
than that required to initiate a lawsuit.

To initiate a criminal

proceeding requires a demonstration of probable cause.

In

Solitro v. Moffatt, the Rhode Island Supreme Court explained this
distinction:
We have previously held that probable cause exists when
facts and circumstances would lead an ordinarily
prudent and careful person to conclude that the accused
is guilty. This is not to say, however, that the facts
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giving rise to prosecution must be so strong as to
convince a prudent person that guilt exists beyond a
reasonable doubt; it is sufficient that the facts known
to the accuser provide reasonable grounds for a belief
that criminal activity at the hands of the accused has
occurred.
523 A.2d 858, 862 (R.I. 1987).

See also Horton, 22 A.3d at 1123

n.7 (“[A] lack of probable cause will not be inferred...from the
single fact that the plaintiff was acquitted from the charge
lodged against him.”)

Because the Court has held that probable

cause existed for Plaintiff’s arrest, the fact that the
prosecution resulted in the dismissal of the charges provides no
legal support for his allegation of malicious prosecution.
Consequently, Plaintiff’s Count II is dismissed.
Conclusion
For the reasons explained herein, Defendants’ motion for
summary judgment on Plaintiff’s Complaint is granted.
shall enter judgment in Defendants’ favor accordingly.
It is so ordered.
/s/Ronald R. Lagueux
Ronald R. Lagueux
Senior United States District Judge
DATE:

February 8, 2016

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The Clerk