Opinion
CIVIL ACTION NO. 02-8234
February 27, 2004
MEMORANDUM
Presently before the Court is Defendants Hudson United Bank's and Lilia Madero's Motion for Summary Judgment, Defendants City of Philadelphia's, Police Officer Cook's and Sergeant Motto's Motion for Summary Judgment and Plaintiff Trina Walker's Oppositions thereto. For the reasons set forth below, Defendants' motions are granted.
Police Commissioner John Timoney was dismissed as a defendant on June 25, 2003.
I. BACKGROUND
In or around October, 2001, Plaintiff was employed as a teller at Hudson United Bank, located on Walnut Street in Philadelphia, Pennsylvania ("Bank"). On or around October 26, 2001 Bank's Director of Corporate Security contacted Defendant Lilia Madero ("Madero") — Bank's Service Manager — and informed her that Bank's Fraud Unit had reported discrepancies involving Plaintiffs teller transactions. Specifically, over a two day period, Plaintiff had cashed a series of fraudulent checks within a short period of time, drawn against the same account. Based on this information, Madero contacted the Philadelphia Police Department. At approximately 12:49 p.m. Defendant Officer Cook ("Officer Cook") and another officer arrived at the Bank. Shortly thereafter, Officer Cook's supervisor, Sergeant Edmond Margerum, arrived at the Bank. Sergeant Margerum conducted an investigation and contacted Sherry Cohn — the owner of the bank account from which funds were drawn. Cohn confirmed that the account was valid, but that nine counterfeit checks with her forged signature were cashed.
Based on this information, Sergeant Margerum asked Plaintiff to give a statement at Central Detectives and Plaintiff agreed. Before the officers could take Plaintiff to Central Detectives, Sergeant Margerum and Officer Cook were summoned by a police radio call to respond to another incident, and they left the Bank. After leaving the Bank, Sergeant Margerum and Officer Cook never returned to the Bank or had anything else to do with the investigation. Plaintiff was then taken to Central Detectives by other officers. She was neither handcuffed nor placed under arrest.
After arriving at Central Detectives, Plaintiff met with Detective Fred Litchendorf. After reviewing the physical evidence, speaking with Plaintiff and speaking with Madero, Detective Litchendorf arrested Plaintiff. Detective Litchendorf charged Plaintiff with theft — unlawful taking, theft by deception, theft — RSP, unlawful use — computer, forgery and bad checks. After being arrested, Plaintiff was fingerprinted and processed. On October 27, 2001, Assistant District Attorney William Byrne declined the charges against Plaintiff for insufficient evidence. Plaintiff was released at approximately 3:38 p.m. on October 27, 2001 — approximately twenty-six hours after the first Officers arrived at the Bank to investigate the fraudulent checks.
In or around October 2002, Plaintiff filed an eleven count complaint in the Court of Common Pleas in Philadelphia County. Plaintiff alleged a civil rights claim under 42 U.S.C. § 1983 and state law tort claims of negligence, assault, battery, intentional infliction of emotional distress, false imprisonment, defamation, punitive damages, respondeat superior and threatening intimidation. On or around October 30, 2002, Defendants City of Philadelphia and Police Officers removed the case to this Court. On or around December 16, 2002, the Court ordered that all discovery be completed by June 30, 2003.
II. STANDARD OF REVIEW
A motion for summary judgment will be granted where all of the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute about a material fact is 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). Since a grant of summary judgment will deny a party its chance in court, all inferences must be drawn in the light most favorable to the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The ultimate question in determining whether a motion for summary judgment should be granted is "whether reasonable minds may differ as to the verdict." Schoonejongen v. Curtiss — Wright Corp., 143 F.3d 120, 129 (3d Cir. 1998). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
III. DISCUSSION
A. Federal Rule of Civil Procedure 56(f)
Plaintiff spends a significant portion of each of her opposition briefs arguing that the defendants did not cooperate in the discovery process. Plaintiff contends that there are various documents that she requested but never received. Plaintiff also makes a vague reference to Federal Rule 56(f) but never requests any particular relief under the rule. Rule 56(f) states,
should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
As the rule states, the party opposing summary judgment must file an affidavit with the Court. Additionally, case law has repeatedly held that the affidavit must identify "with specificity what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained." Bradley v. The United States of America. 299 F.3d 197, 206 (3d Cir. 2002) (emphasis added).
Plaintiff has failed to meet the basic and crucial requirements of Rule 56(f). Plaintiff has not filed an affidavit with this Court, and Plaintiff has not stated at all, let alone with specificity, how the additional discovery would preclude summary judgment on the eleven different causes of action in Plaintiffs complaint. Furthermore, this is the first time that Plaintiff has raised discovery issues with the Court. If Plaintiff had problems obtaining discoverable information, she should have filed a motion to compel discovery during the discovery period. Accordingly, the Court will not grant any relief pursuant to Rule 56(f).
B. Defendants Hudson United Bank and Lilia Madero
1. Cause of Action Under 42 U.S.C. § 1983
Plaintiff has brought a cause of action against the Bank and Madero for violation of 42 U.S.C. § 1983, which states, in pertinent part, "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . ." A primary element under this statute is that an actor deprives a plaintiff's rights under the color of state law. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). "The under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Id. at 50.
Bank and Madero argue that they are private parties — not state actors — therefore, as a matter of law, this claim must fail. (Bank's Br. at 9.) Plaintiff concedes this point and states that "it is admitted that defendants Hudson United Bank and Lilia Madero, are not state actors, or acted under color of state law, nevertheless, defendant Madero, as an individual, and Hudson United Bank, as a business entity, violated plaintiff's civil rights . . ." (Pl's Br. in Opp'n to Bank's Br. at 3) Plaintiff also states earlier in her brief that "Hudson and Madero aided and abetted the City of Philadelphia to violate Plaintiff's Federal Civil Rights . . ." (Id at 1.)
Plaintiffs bald assertions are unsupported. Plaintiff has not provided any evidence or a single legal authority that would prove that Bank or Madero aided and abetted the City of Philadelphia. Plaintiff has also failed to raise any genuine of issues of fact regarding this issue.
Additionally, this is the first time that Plaintiff has even raised the issue of "aiding and abetting." Count II of Plaintiff's complaint — the § 1983 count — does not allege that Bank or Madero aided and abetted the City to violate Plaintiff's rights. Rather, the count simply alleges that Bank and Madero violated Plaintiff's rights. Now, however, in an effort to get around the "state actor" requirement and survive summary judgment, Plaintiff now baldly alleges in her Opposition Brief — for the first time — that Bank and Madero aided and abetted the City of Philadelphia. However, as stated above, Plaintiff has not offered any evidence to support this new allegation.
Furthermore, the overwhelming and undisputed evidence that the Defendants have supplied proves that Bank and Madero did not violate Plaintiff's rights and did not aid and abet the City. Upon learning that fraudulent checks were being cashed by Plaintiff, Madero — at the direction of the Bank's Director of Corporate Security — contacted the police department. (Bank's Br. at 3-4.) Once the police arrived at the Bank, the police conducted the investigation and transported Plaintiff to Central Detectives. (Id. at 3-7.) After Plaintiff left the Bank, she never saw another Bank employee during the rest of her time with the police. (Id. at 7.) Besides simply contacting the police to investigate the fraudulent checks — and there is no dispute that the checks were fraudulent — Bank and Madero played no other role in Plaintiff's alleged rights deprivation. There is simply no evidence whatsoever that Bank and Madero violated Plaintiff's Constitutional rights or aided and abetted the City in violating Plaintiffs Constitutional rights. Accordingly, the Court grants Bank's and Madero's motion with regard to this allegation.
Additionally, as explained later in this Memorandum, the Court finds that the City did not violate Plaintiff's Constitutional rights. Accordingly, there can be no aiding and abetting when there is no § 1983 violation.
2. Assault. Battery. Threatening Intimidation
Plaintiff has brought causes of action against Bank and Madero for assault, battery and threatening intimidation. Despite these allegations, Plaintiff gave the following testimony at her deposition:
The Court has not been able to locate any authority regarding a cause of action for "threatening intimidation," and Plaintiff has not provided this Court with any legal authority regarding this alleged cause of action.
Q. Nobody from the bank, [Madero] or any other person — did anybody from the bank ever put their hands on you by any chance?
A. No. (Walker Dep. Tr. at 62.)
After the police arrived at the Bank to investigate the fraudulent checks, they talked with Plaintiff in a back room. Regarding those conversations with the police, Plaintiff testified as follows:
Q. [Madero] never said, you know, unless you tell us what happened I'm going to hit you or do something like that, did she ever say anything like that to you, did anybody from the bank?
A. [Madero] was not in the back with me when I went in the back.
Q. Who from the bank was back there?
A. There was nobody there.
Q. That's what I'm trying to get at. Nobody from the bank ever laid a hand on you or nobody from the bank ever said anything to you; correct?
A. Correct. (Walker Dep. Tr. at 62-63)
After Plaintiff talked with the police at the Bank, the police transported her to Central Detectives to give a statement. Plaintiff never saw anybody from the Bank again during the remainder of her time with the police or while in custody. (Walker Dep. Tr. at 64.)
Not only has Plaintiff freely admitted that nobody from the Bank ever touched her or threatened her during the investigation of the fraudulent checks, Plaintiff has also failed to submit a single piece of evidence or legal authority on how she could prove these claims. Additionally, Plaintiff has not raised any genuine issues of fact with regard to these claims. Given the complete absence of evidence, legal authority and genuine issues of fact regarding these claims, the Court grants Bank's and Madero's motion for summary judgment.
3. Negligence, Intentional Infliction of Emotional Distress, Defamation
Bank and Madero argue that Plaintiff can produce no evidence to prove any of these claims. (Bank's Br. at 9-12.) Furthermore, Bank and Madero argue that their only actions — contacting the police department to investigate the fraudulent checks — were appropriate and reasonable under the circumstances. (Id. at 11.)
In response to these arguments, Plaintiff does not offer any evidence or legal authority to support her allegations or to show that there are genuine issues of fact for trial. Rather, Plaintiff spends a significant portion of her opposition brief arguing that she did not receive all of her discovery requests and citing portions of deposition transcripts that are wholly irrelevant to proving any of her causes of action.
If a defendant meets its initial burden of showing the Court that summary judgment is appropriate, then summary judgment will be entered
against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is entitled to judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "A plaintiff cannot resist a properly supported motion for summary judgment merely by restating the allegations of his complaint, but must point to concrete evidence in the record that supports each and every essential element of his case." Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d. Cir. 1995) (emphasis added).
Plaintiff has failed to meet her burden as the nonmoving party. Plaintiff has not offered any evidence or legal authority whatsoever to show this Court that she is able to prove her claims, or at a minimum, show that genuine issues of fact exist regarding her claims. Plaintiff has not even presented the elements of her case, much less the "concrete evidence" that supports the elements. Plaintiff has done no more than baldly reassert the same allegations that are in her complaint. Additionally, the evidence presented by the Defendants shows that Bank and Madero did nothing more than simply contact the police to investigate the fraudulent checks. Accordingly, the Court grants summary judgment to Bank and Madero regarding these claims.
4. False Arrest and False Imprisonment
Although Plaintiff labels this cause of action as "False Arrest and False Imprisonment," Plaintiff has not even alleged, let alone offered any evidence, that Bank and Madero somehow falsely arrested Plaintiff. Accordingly, summary judgment is granted to Bank and Madero with regard to the false arrest allegation.
In order to state a claim for the tort of false imprisonment, a plaintiff must prove that the defendant (1) acted with the intent to confine the plaintiff within boundaries fixed by the defendant; (2) defendant's actions directly or indirectly resulted in such confinement; and (3) plaintiff is conscious of the confinement or is harmed by it.Crivellaro v. Pa. Power and Light Co., 24 Pa. D. C. 3d 590, 595 (Lehigh 1982). Additionally, "some element of force, threatened force or actual physical restraint is necessary for a plaintiff to establish a cause of action for false imprisonment." Id.
With regard to this claim, Plaintiff is apparently alleging that Bank and Madero falsely imprisoned Plaintiff when they asked her to stay at the Bank until the police officers arrived to investigate the fraudulent checks. (Pl.'s Opp'n to Bank's Br. at 4.) In support of this allegation, Plaintiff offers the following deposition testimony of Mary R. Brown, Bank's Director of Corporate Security:
The Court says "apparently" because Plaintiff has not identified in her complaint or brief the precise time at which she was falsely imprisoned by Bank and Madero. Plaintiff freely admits that she never saw any employee of the Bank after the police officers transported her from the Bank to Central Detectives to give a statement; therefore, the Court is forced to conclude that the alleged false imprisonment by the Bank and Madero occurred while she was at the Bank.
Q. Did you say anything else to Lilia Madero [when you called her regarding the fraudulent checks]?
A. I asked her to call the police, I said that the checks were identified as counterfeit items and I asked her to ask [Plaintiff] to stay there. I said, "Don't' let [Plaintiff] leave until the police come, I want them to speak to her, she's a witness and they'll want to talk to her to find out if she could identify or if she knew the person who was cashing out these checks, or presented the checks to her."
Bank and Madero argue that they never intentionally confined Plaintiff. (Bank's Br. at 10.) Bank and Madero claim that at the time they called the police, they did not suspect Plaintiff of a crime, but rather, they thought that Plaintiff was a witness to the crime. (Id.: See Brown's Dep. Tr. at 10.) Furthermore, when the police arrived, it was the police who escorted Plaintiff to a back room to discuss the fraudulent checks. Plaintiff testified at her deposition that when she was in the back room with the police, there was not a single Bank employee present, and when Plaintiff and the officers left the Bank, Plaintiff never saw another Bank employee throughout the remainder of her time at the police station. (Walker Dep. Tr. at 63-64.)
The Court finds that Plaintiff has failed to meet her burden to survive summary judgment. Plaintiff has not produced any evidence that she was confined at the Bank, much less evidence that Bank and Madero intended to confine her to the Bank. Furthermore, there is no evidence whatsoever that Bank and Madero used any force — threatened or actual — to confine Plaintiff to the Bank. In fact, Plaintiff testified that nobody from the bank ever touched her or threatened her in any way. (Id. at 62-63.) Accordingly, the Court grants summary judgment in favor of Bank and Madero with regard to this cause of action.
C. Defendants City of Philadelphia, Officer Cook, Officer Motto and Officers John/Jane Doe I-IV.
1. Cause of Action Under 42 U.S.C. § 1983
City of Philadelphia, Officer Cook and Sergeant Motto (collectively "Municipal Defendants") argue that Plaintiff's § 1983 must fail because the officers involved in arresting and detaining Plaintiff acted with probable cause.
The Fourth Amendment prohibits a police officer from arresting a citizen unless the officer has probable cause. Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995).
Probable cause to arrest requires more than mere suspicion; however, it does not require that the officer have evidence sufficient to prove guilt beyond a reasonable doubt. Rather, probable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.Id. at 482-83. Based on this standard, Municipal Defendants argue that Detective Litchendorf's — the arresting officer — actions were reasonable, and he acted with probable cause. At the time Detective Litchendorf arrested Plaintiff, the evidence available to him included the following: 1) over a two day period nine fraudulent checks were presented at the Bank; 2) Plaintiff cashed all nine of the checks — no other teller cashed any of them; 3) Plaintiff did not follow the Bank's procedures in cashing the fraudulent checks; and 4) Plaintiff cashed the fraudulent checks in an extraordinarily short period of time.
Bank policy required Plaintiff to get her supervisor's approval in order to cash any check over $500. All of the fraudulent checks were over $1,000, and Plaintiff did not seek her supervisor's approval to cash any of the checks. (Bank's Br. at 3-4; Municipal Defendant's Br. at 13-14 Ex. O.)
A computer generated record keeps track of, among other things, the time it takes a teller to complete a transaction. Madero testified that it would normally take a teller anywhere from five to ten minutes to cash one check over $1,000. At one point, Plaintiff cashed five successive fraudulent checks for five different people in five separate transactions in a total span of nine minutes. Plaintiff cashed some of the fraudulent checks in as short as thirty seconds. During her deposition, Plaintiff could not explain how she cashed the checks in such a short period of time. (Municipal Defendant's Br. at 13-14 n. 5; Bank's Br. at 5.)
Plaintiff, on the other hand, does not offer any evidence to show that Detective Litchendorf's actions — or any other officer's actions — were unreasonable, or that Detective Litchendorf did not act with probable cause. Additionally, Plaintiff does not offer a single legal authority to support her position that the officers acted without probable cause. Rather, Plaintiff seems to suggest that there was not enough evidence to prove her guilt beyond a reasonable doubt. However, in examining whether probable cause existed, the critical issue is whether a reasonable person — based on the information available to that person at the time — would believe that a crime had been committed. Orsatti, 71 F.3d at 483. Plaintiff offers no evidence, legal authority or genuine issues of fact regarding whether the officers acted with probable cause. Accordingly, the Court grants summary judgment in favor of Municipal Defendants with regard to Plaintiff's § 1983 claim.
Because the Court finds that the officers acted with probable cause, it is unnecessary for the Court to engage in a qualified immunity analysis. However, even if Court had found that the officers did not have probable cause, the Court would have ruled in Municipal Defendants' favor with regard to qualified immunity, as Plaintiff offered no evidence, legal authority or genuine issues of fact to rebut Municipal Defendants' argument. In fact, Plaintiff does not devote any portion of her opposition brief to rebutting the qualified immunity argument. Additionally, because the Court finds that the officers acted with probable cause, the Court need not address whether the City of Philadelphia can be held liable for the officers' actions. However, even if the Court had found that the officers did not act with probable cause, the Court would have ruled in Municipal Defendants' favor with regard to this issue. In order for the City to be held liable, Plaintiff would need to prove that the officers' unconstitutional conduct was a result of a municipality policy or custom. Monell v. Department of Social Services of the City New York, 436 U.S. 658, 694-95 (1978). Plaintiff has not offered any evidence, legal authority or genuine issues of fact to rebut Municipal Defendants' argument. If fact, Plaintiff addressed this issue with only one sentence — "it is not necessary for the Plaintiff to present evidence that the City of Philadelphia has a de facto policy or custom encouraging its Police Officers to engage in excess use of authority or the use of physical and psychological coercion upon innocent persons." (Pl's Opp'n to Municipal Defendants' Br. at 1.)
2. State Law Tort Claims
Plaintiff has brought state law tort claims against Municipal Defendants for negligence, assault, battery, intentional infliction of emotional distress, false imprisonment, false arrest, defamation, threatening intimidation. Municipal Defendants argue that these claims are barred by the Pennsylvania Political Subdivision Tort Claims Act ("Tort Claims Act").
As explained above, the Court finds that the police officers had probable cause to arrest Plaintiff. Accordingly, Plaintiff has no claim for false arrest or false imprisonment. Additionally, this Court has been unable to locate any legal authority regarding a cause of action entitled "threatening intimidation," and Plaintiff has not supplied any legal authority to the Court regarding this claim. Accordingly, that claims fails as well.
With regard to immunity for the City of Philadelphia, the Tort Claims Act states, "except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." 42 Pa.C.S.A. § 8541. The Tort Claims Act then lists eight exceptions when an agency can be held liable. 42 Pa.C.S.A. § 8542. Those eight exceptions deal with the following: (1) vehicle liability; (2) care, custody or control of personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks; and (8) care, custody or control of animals. 42 Pa.C.S.A. § 8542. It is undisputed that none of the eight exceptions apply to the instant case. Furthermore, Plaintiff has not offered any evidence, legal authority or genuine issues of fact to rebut Municipal Defendants' argument. Accordingly, the Court grants summary judgment in favor of the City of Philadelphia with regard to all of the state tort claims.
With regard to the officers' liability, the Tort Claims Act states, "an employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter." 42 Pa.C.S.A. § 8545. The Tort Claims Act states that the immunity will not apply when the employee's conduct constitutes "a crime, actual fraud, actual malice, or willful misconduct." 42 Pa.C.S.A. § 8550.
Plaintiff has not offered any evidence whatsoever that could show a crime, actual fraud, actual malice or willful misconduct by the police officers. Additionally, Plaintiff has not offered any genuine issues of fact regarding a crime, actual fraud, actual malice or willful misconduct. Accordingly, Plaintiffs state law tort claims are barred by the Tort Claims Act.
In her complaint, Plaintiff baldly alleges certain intentional torts, which could — if proven — defeat the immunity given by the Tort Claims Act. Plaintiff, however, has not offered any evidence or legal authority whatsoever to show that the police officers committed any intentional torts or that there is a genuine issue of fact regarding whether the officers committed an intentional tort. In fact, Plaintiff does not even address the state law torts in her opposition brief. Accordingly, these claims fail for the following two reasons: 1) The police officers are protected by the Tort Claims Act because Plaintiff cannot show willful misconduct; and 2) plaintiff has failed to meet her burden of showing this Court that she can prove the elements of her claims or that there are genuine issues of fact for trial.
IV. CONCLUSION
Based on foregoing discussion, the Court grants Bank's and Madero's motion for summary judgment and Municipal Defendant's motion for summary judgment. An appropriate order follows.