Opinion
Civil 3:21-CV-601
01-31-2023
CARLOS FIGUEROA, Plaintiff, v. WILLIAM MOYER, SR., et al., Defendants.
Mannion Judge
REPORT AND RECOMMENDATION
MARTIN C. CARLSON UNITED STATES MAGISTRATE JUDGE
I. Introduction
This case comes before us on a motion for summary judgment filed by the defendants, William Moyer, Sr. (“Mr. Moyer”), William Moyer, Jr. (“Officer Moyer”), and the Borough of Shenandoah. (Doc. 37). The plaintiff, Carlos Figueroa, brought this action against the defendants arising out of events that led to Figueroa's arrest in April of 2019. He asserts a host of claims against these defendants, including First Amendment retaliation, Fourth Amendment unreasonable search and seizure, malicious prosecution, conspiracy, assault and battery, and a Monell claim against the Borough. (Doc. 11).
Figueroa's wife, Priscilla Aguilar, filed a separate action against Mr. Moyer, asserting claims of First Amendment retaliation and battery arising out of these events. Aguilar v. Moyer, Civ. No. 3:21-CV-595. The parties in that case consented to magistrate judge jurisdiction, and we entered a Memorandum Opinion denying Mr. Moyer's motion for summary judgment in that case. (See Aguilar, Civ. No. 21-CV-595, Doc. 47).
Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658 (1978).
The defendants have now filed a motion for summary judgment, contending that Figueroa's claims fail as a matter of law. However, with the exception of the Monell claim and conspiracy claim against the Borough, we conclude that there are genuine disputes of material fact that preclude the entry of summary judgment on the plaintiff's constitutional and state law claims. Accordingly, we will recommend that the motion be granted as to the Monell claim and as to the Borough on the conspiracy claim, but denied in all other respects.
II. Statement of Facts and of the Case
The factual background of this Report and Recommendation is taken from the parties' submissions to the extent they are consistent with the evidence in the record. (Docs. 37-40, 46, 47, 50).
Mr. Figueroa and his wife, Ms. Aguilar, owned a property at 34 S. Emerick Street in Shenandoah, Pennsylvania. They were performing work at the property and had been attempting to get water services turned on. After a few misunderstandings regarding an unpaid security deposit, Mr. Figueroa called the Water Authority on April 5, 2019 to have the water turned on. He was informed by Jennifer Hepler, a Water Authority employee, that they could not turn the water on that day, but that they could schedule an employee to turn the water on the next business day, which at that time, would have been the following Monday, April 8, 2019. According to the defendants, the Water Authority has a practice of not scheduling a work order on the same day that someone calls for services, but to schedule it on the next business day. Additionally, a recording of this phone call indicates that Hepler told Figueroa that they did not have any openings that day.
Mr. Figueroa expressed his dissatisfaction with the Water Authority, which included swearing at Ms. Hepler and asking if he could just turn the water on himself. Hepler informed him that he was not permitted to turn the water on himself, and that if he did, he could be arrested for theft of services. She was able to schedule an appointment for Figueroa for the following Monday, April 8. However, Figueroa again swore at Hepler because he could not have the water turned on that day, causing Hepler to hang up the phone. Figueroa called back, confirming the appointment for April 8 but again asking about turning the water on himself, and Hepler again told him that he could be arrested for theft of services. A similar encounter ensued, with Figueroa swearing at Hepler and Hepler hanging up the phone.
Following these phone conversations between Figueroa and Hepler, the Water Authority sent Mr. Moyer, a working foreman with the Water Authority, to the Emerick Street property to ensure that the water had not been turned on. According to Mr. Moyer, when he arrived at the property, Figueroa and Aguilar, as well as two other people-Aguilar and Figueroa's son, Carlos, and Carlos' friend- were exiting the property. Mr. Moyer contends that Figueroa began cursing at him, asking why he could not just turn the water on that day. Mr. Moyer avers that he was concerned for his safety, given that there were four individuals there, and so he went back to his car and called his son, Officer Moyer, who he knew was on duty that day. He also took a picture of Figueroa's license plate in the event Figueroa decided to leave the property before police arrived. Mr. Moyer contends that Figueroa threatened to punch him in the face after Mr. Moyer took a picture of his license plate, and Mr. Moyer then retreated back to his truck.
Figueroa's version of events differs significantly from Mr. Moyer's. On this score, Figueroa disputes the nature of the argument between himself and Mr. Moyer, contending that Mr. Moyer was the one threatening to get physical with Figueroa. Further, Figueroa stated that Mr. Moyer used racially derogatory words toward Aguilar during this encounter. After Mr. Moyer announced that he was calling the police, Aguilar and Figueroa went and sat in their car and began recording Mr. Moyer, who was standing at the rear of his truck. For his part, Figueroa admits that after Mr. Moyer said he was calling the police, Figueroa profanely expressed his dissatisfaction with Mr. Moyer, the Water Authority, and the police.
Officer Moyer arrived on the scene, and initially went to Mr. Moyer's truck to speak with him, although their conversation could not be heard in the audio recording. Dash cam footage from Officer Moyer's marked police vehicle shows Officer Moyer then walking up to Figueroa's car on the driver's side, where Figueroa was sitting. Figueroa recorded the encounter on his cellphone, which had already been filming. Officer Moyer asked Figueroa what was going on, and Figueroa again complained that Mr. Moyer would not turn the water on at the property. Figueroa then stated to Officer Moyer that he was not afraid of him, and when Officer Moyer asked Figueroa for identification, Figueroa refused. Officer Moyer asked Figueroa several times for his identification, explaining that he was investigating a potential crime. After Figueroa continued to refuse, Officer Moyer ordered him to step out of the vehicle. Figueroa did not comply with Officer Moyer's order, and instead, offered to give Officer Moyer his identification at that time. However, after Figueroa continued to refuse to step out of the car, Officer Moyer pulled Figueroa out of the car by his left arm, and a struggle ensued, during which Figueroa dropped the cellphone that was recording the incident.
While the struggle and subsequent events were not captured on video on the cellphone, the cellphone's audio recording, as well as the police car's dash cam audio recording sheds some, albeit enigmatic, light on what occurred. The dash cam footage shows Mr. Moyer moving toward Officer Moyer and Figueroa as the two began to struggle. Officer Moyer can be heard ordering Figueroa to get on the ground and to put his hands behind his back. Officer Moyer can also be heard yelling “back up,” while Aguilar was yelling something to him, and Figueroa yelled “leave them.” Mr. Moyer can be heard asking Aguilar “do you want to go to jail, too?” Mr. Moyer ultimately did assist Officer Moyer with the arrest, holding Figueroa down so that Officer Moyer could handcuff him.
Officer Moyer pulled Figueroa out of the vehicle, at which point the two men were in between the police car and Figueroa's car. The struggle appears to have occurred toward the rear of the vehicles, as the two men disappear from the dash cam's view during the struggle. Mr. Moyer can also be seen walking toward the struggle and also disappears out of sight of the dash cam's view.
According to Ms. Aguilar, it was at this time that Mr. Moyer was physically intervening to prevent her from picking up Figueroa's cellphone to continue recording the arrest. She stated that Mr. Moyer physically pushed her back onto the sidewalk, and that after she was able to pick up the phone, he physically tried to take the phone out of her hands. However, according to Mr. Moyer, Aguilar tried to intervene in the arrest, and Mr. Moyer physically separated her from Officer Moyer and Figueroa to prevent any harm to Officer Moyer. During the video, Aguilar can be heard telling someone “you can't take this phone away from me,” while Figueroa can be heard yelling “why is he touching my wife?” At this same time, Officer Moyer is yelling at someone to “stop!” Ultimately, Figueroa was taken to the police station and then to the Schuylkill County Prison, having been charged with several offenses, including resisting arrest and making terroristic threats, which were ultimately dismissed.
Thus, what we are presented with are two starkly contrasting factual narratives of what occurred in the time leading up to and during Figueroa's arrest. On the one hand, Figueroa contends that Mr. Moyer was, from the outset of the encounter, profane and aggressive toward Figueroa and Aguilar. He asserts that Mr. Moyer used racially derogatory language and threatened to get physical with him, and that when Figueroa expressed his dissatisfaction with the situation, Mr. Moyer called the police to effectuate an arrest in furtherance of his own agenda. Further, he contends that Mr. Moyer took part in the arrest himself for no reason other than to violate Figueroa's rights. For their part, the defendants assert that Figueroa was aggressive toward Mr. Moyer, which led Mr. Moyer to call the police. When Officer Moyer arrived, they aver that Figueroa was combative with the officer, refusing to provide identification and refusing to step out of his vehicle when ordered to do so. They contend that at that time, Officer Moyer had probable cause to arrest Figueroa, and that the force used during the struggle was reasonable to gain Figueroa's compliance. Mr. Moyer asserts that he assisted Officer Moyer with the arrest for Officer Moyer's safety, in that Aguilar was attempting to intervene and Figueroa was failing to comply with orders to put his hands behind his back.
It is against this factual backdrop that Figueroa filed the instant suit against Mr. Moyer, Officer Moyer, and the Borough, and he filed an amended complaint which is now the operative pleading in this case. (Doc. 11). As we have noted, the remaining claims against the defendants consist of First Amendment retaliation against the Moyers; an unreasonable search and seizure in violation of the Fourth Amendment against both Moyers; a malicious prosecution claim pursuant to § 1983 and state law against Officer Moyer; a conspiracy claim against all defendants; an assault and battery claim against Mr. Moyer; and a Monell claim against the Borough.
In their motion for summary judgment, the defendants contend that Figueroa has not shown that they violated his First or Fourth Amendment rights, that Officer Moyer had probable cause to arrest Figueroa, and that they are entitled to qualified immunity with respect to these federal claims. They further argue that the state law claims and the Monell claim fail as a matter of law, and that Mr. Moyer and Officer Moyer are entitled to official immunity. This motion is fully briefed and is ripe for resolution. (Docs. 40, 46, 50). For the reasons that follow, we will recommend that the motion be granted as to the Monell claim and conspiracy claim against the Borough but denied in all other respects.
III. Motion for Summary Judgment - Standard of Review
The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment if the movant shows 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). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact,” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “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 at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 F. App'x 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[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.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
IV. The Defendant's Motion for Summary Judgment should be Granted in Part and Denied in Part.
As we have noted, the defendants contend that Figueroa's claims against them fail as a matter of law. With respect to the plaintiff's Monell claim against the Borough, as well as the conspiracy claim against the Borough, we agree and recommend that these claims and the municipal defendant be dismissed. However, with respect to the remaining constitutional and state law claims brought against the individual defendants, we conclude that the litany of factual disputes surrounding this encounter would render summary judgment in favor of the individual defendants inappropriate. Accordingly, we recommend that the motion be denied as to the remaining claims.
A. The Monell Claim should be Dismissed.
The plaintiff brings a claim against the Borough contending that the Borough is liable for Mr. Moyer's and Officer Moyer's actions. On this score, Figueroa asserts that the Borough had a policy or custom of approving its employees' deprivation of others' constitutional rights. He further asserts that the Borough failed to train and supervise its employees, resulting in the deprivation of individuals' constitutional rights. However, we conclude that Figueroa has not set forth evidence of the Borough's liability, and this claim should be dismissed.
The plaintiff must meet an exacting standard to hold this municipal entity liable under § 1983. It is well settled that local governmental entities may not be held liable under § 1983 for the acts of others under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. 662; see also Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991). Instead, such an agency may only be held liable “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). Thus, to sustain a claim against this institutional defendant, a plaintiff must “identify a ... ‘policy' or ‘custom' that caused the plaintiff's injury.” Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997). This custom must be “so widespread as to have the force of law.” Id. at 404; see also Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (a policy is an official proclamation or edict of a municipality, while a custom is a practice that is “so permanent and well settled as to virtually constitute law”) (quoting Andrews, 895 F.2d at 1480). On this score,
[A] policy or custom may exist 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 the existing practice so likely to result in the violation of constitutional rights, that the policymaker can be said to have been deliberately indifferent to the need.'”Natale v. Camden County Correctional Facility, 318 F.3d 575, 584 (3d Cir. 2003) (quoting Brown, 520 U.S. at 417-18 (internal citations omitted)). Thus, an avenue which a plaintiff may seek to hold a municipality liable is through the municipality's inaction, rather than an affirmative policy which resulted in the plaintiffs' alleged injuries.
The plaintiff must further “allege that a ‘policy or custom' of [the defendants] was the ‘moving force' behind the [constitutional] violation.” Grayson v. Mayview State Hosp., 293 F.3d 103, 107 (3d Cir. 2002) (citing Brown, 520 U.S. at 404). A municipality can be held liable on the basis of failure to train when “that failure amounts to ‘deliberate indifference ... [of the constitutional] rights of persons....' ” Woloszyn v. County of Lawrence, 396 F.3d 314, 324 (3d Cir. 2005) (citations omitted). There must also be a causal nexus, in that the “ ‘identified deficiency in [the] training program must be closely related to the ultimate [constitutional] injury.' ” Id. at 325 (citations omitted). Therefore, analysis of a claim under Monell requires separate analysis of two distinct issues: “(1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so whether the [the institutional defendant] is responsible for that violation.” Collins v. City of Harker Heights, Texas, 503 U.S. 115, 120 (1992).
In the instant case, we conclude that Figueroa has not set forth evidence to create a genuine dispute of fact as to this Monell claim. Figueroa's claim contemplates municipal liability based on an alleged policy or custom of discrimination, a lack of a policy regarding familial conflicts of interest, and the failure to train employees. Regarding the alleged policy or practice of discrimination, Figueroa appears to base this claim on Mr. Moyer's 2011 federal conviction for making false statements to the Federal Bureau of Investigation during an investigation into the murder of a Hispanic man while Mr. Moyer was a police officer. The plaintiff invites us to conclude from this conviction that Mr. Moyer has a discriminatory animus toward Hispanic persons, and further, impute this bias or animus to both Officer Moyer and the Borough, such that it can be inferred that the Borough had a policy or practice of discriminating against Hispanic individuals. However, we conclude that no reasonable juror could find that the Borough had a policy or practice of discriminating against Hispanic individuals based solely on the fact of Mr. Moyer's criminal conviction, which was a conviction for making false statements to the FBI in an investigation which occurred almost a decade prior to the events at issue here.
Nor has Figueroa shown that the absence of a policy or practice was the driving force behind the alleged constitutional violations. Indeed, Figueroa has not set forth any evidence showing that the need for the Borough to take action was “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.” Brown, 520 U.S. at 417-18 (internal quotations and citations omitted). On this score, Figueroa claims that the Borough's lack of a policy regarding familial conflicts was a factor in the alleged constitutional violations, and again invites us to connect this case to Mr. Moyer's federal criminal case which concluded almost a decade prior to the events in this case, arguing that the Borough should have created a policy dealing with conflicts of interest. This is simply not enough to make the exacting showing necessary to establish municipal liability based on a deliberate indifference theory.
Finally, Figueroa asserts a failure-to-train theory, alleging that the Borough failed to train both Officer Moyer and Mr. Moyer, which resulted in the alleged violation of Figueroa's constitutional rights. With respect to a failure to train theory, the Third Circuit has explained:
“Only where a failure to train reflects a ‘deliberate' or ‘conscious' choice by a municipality-a ‘policy' as defined by our prior cases- can a city be liable for such a failure under § 1983.” [City of Canton v. Harris, 489 U.S., 378, 389 (1989)]. The focus in this determination is on the adequacy of the training program in relation to the tasks the particular officers must perform and the connection between the identified deficiency in the municipality's training program and the ultimate injury. Id. at 390-91, 109 S.Ct. at 1205-06. To succeed on a § 1983 claim, the party must prove that the training deficiency actually caused the injury. Id. at 391, 109 S.Ct. at 1206.
Establishing municipal liability on a failure to train claim under § 1983 is difficult. A plaintiff pressing a § 1983 claim must identify a failure to provide specific training that has a causal nexus with their injuries and must demonstrate that the absence of that specific training can reasonably be said to reflect a deliberate indifference to whether the alleged constitutional deprivations occurred. Colburn v. Upper Darby Township, 946 F.2d 1017, 1030 (3d Cir. 1991).Reitz v. Cnty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997).
Here, the plaintiff merely asserts conclusory allegations that the Borough's failure to establish a policy regarding familial conflicts, as well as a failure to train police officers regarding a citizen's right to record police activity, led to his constitutional injuries. He does not point to evidence showing that the Borough lacked specific trainings, or how the alleged the lack of training caused the alleged injury. It is well settled that at the summary judgment stage, the plaintiff is not entitled to rely solely on the allegations lodged in his complaint. See Shah v. Bank of Am., 346 Fed.Appx. 831, 833 (3d Cir. 2009) (“To survive a motion for summary judgment, the plaintiff cannot rely on unsupported allegations in the complaint”); Graudins v. Retro Fitness, LLC Graudins v. Retro Fitness, LLC, 921 F.Supp.2d 456, 463 (E.D. Pa. 2013). Accordingly, because the plaintiff has failed to set forth evidence to create a genuine issue of fact, we recommend that summary judgment be granted in favor of the Borough and this claim be dismissed.
B. There are Genuine Disputes of Material Fact with respect to the Plaintiff's Remaining Claims.
While the defendants have shown that there are no genuine disputes of fact as to the Monell claim, we conclude that the remainder of the plaintiff's claims against the individual defendants involve the resolution of hotly contested factual determinations. The defendants contend that Figueroa's federal claims fail on their merits, and alternatively, that they are entitled to qualified immunity. As for the state assault and battery claims against Mr. Moyer, he contends that his actions were privileged, and further, that he is entitled to official immunity. However, as we have explained, the entirety of the encounter between Mr. Moyer and Figueroa, and later between Officer Moyer and Figueroa, is in dispute. Indeed, the plaintiff and defendants posit two completely different narratives of what occurred in the instant case. Thus, with the exception of the conspiracy claim against the Borough, we conclude that summary judgment on these federal claims would be inappropriate.
1. There are Genuine Disputes of Material Fact Regarding the Merits of the Plaintiff's Federal Claims.
At the outset, the defendants contest that Mr. Moyer, a foreman with the Water Authority, was acting under color of state law for purposes of these federal claims brought pursuant to 42 U.S.C. § 1983. Section 1983 provides in relevant part that:
Every person who, under color of any statute ... of any State ... 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[.]
It is well established that § 1983 does not by its own force create new and independent legal rights to damages in civil rights actions. Rather, § 1983 simply serves as a vehicle for private parties to bring civil actions to vindicate violations of separate, and pre-existing, legal rights otherwise guaranteed under the Constitution and laws of the United States. Albright v. Oliver, 510 U.S. 266, 271 (1994); Graham v. Connor, 490 U.S. 386, 393-94 (1989). Accordingly, any analysis of the legal sufficiency of a cause of action under § 1983 must begin with an assessment of the validity of the underlying constitutional and statutory claims advanced by the plaintiff.
In this regard, it is also well settled that:
Section 1983 provides a remedy for deprivations of federally protected rights caused by persons acting under color of state law. The two essential elements of a § 1983 action are: (1) whether the conduct complained of was committed by a person acting under color of state
law; and (2) whether this conduct deprived a person of a federally protected right. Parratt v. Taylor, 451 U.S. 527, 535 (1981).Boykin v. Bloomsburg University of Pennsylvania, 893 F.Supp. 409, 416 (M.D. Pa. 1995), aff'd, 91 F.3d 122 (3d Cir. 1996) (emphasis added). Therefore, it is essential to any civil rights claim brought under § 1983 that the plaintiff allege and prove that the defendant was acting under color of law when that defendant allegedly violated the plaintiff's rights The requirement of state action is a “threshold issue” in cases brought under section 1983, Bailey v. Harleysville National Bank & Trust, 188 Fed.Appx. 66, 67 (3d Cir. July 18, 2006), because “there is no liability under § 1983 for those not acting under color of law.” Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). In this regard:
“Under color of law” and “state action” are interpreted identically under the Fourteenth Amendment. Thus, a plaintiff seeking to hold an individual liable under § 1983 must establish that she was deprived of a federal constitutional or statutory right by a state actor.Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (citing Benn v. Universal Health Sys., 371 F.3d 165, 169-70 (3d Cir. 2004)).
In making this determination of whether a private party may be considered a state actor, “ ‘[t]he nominally private character' of an entity may be ‘overborne by the pervasive entwinement of public institutions and public officials in its composition and workings' such that ‘there is no substantial reason to claim unfairness in applying constitutional standards to it.' ” Tulp v. Educ. Comm'n for Foreign Med. Graduates, 376 F.Supp.3d 531, 539-40 (E.D. Pa. 2019) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 298 (2001)).
Thus, private action may transform into state action when: “the private party has acted with the help of or in concert with state officials,” “the private party has been delegated a power traditionally exclusively reserved to the State,” or “there is a sufficiently close nexus between the State and the challenged action of the private entity so that the action of the latter may fairly be treated as that of the State itself.” Tulp, 376 F.Supp.3d at 540. However, the plaintiff must assert well-pleaded facts demonstrating such an inextricably intertwined relationship. Id.
In the instant case, we cannot conclude as a matter of law that Mr. Moyer was not acting under color of state law. Indeed, it is undisputed that Mr. Moyer was at the property in his capacity as a Water Authority employee and that he was there to ensure that the water was off. Further, Mr. Moyer himself stated that he called his son, Officer Moyer, so that he could safely check to make sure the water was off, as he felt threatened by Figueroa and the other individuals at the property. (Doc. 38-1, at 33). On this score, Mr. Moyer further testified at Figueroa's preliminary hearing that “[w]e call the police numerous times when we go to houses” because theft of services was a major problem in the Shenandoah area, and that calling the police “[wa]s our policy.” (Id., at 48). This call to the police, which we find Mr. Moyer made as an employee of the Water Authority for the purpose of performing his job duties, is inextricably intertwined with the subsequent events during which Mr. Moyer involved himself in Figueroa' arrest. Thus, we cannot conclude as a matter of law that Mr. Moyer was not acting under color of state law for purposes of § 1983.
We now turn to the substance of the plaintiff's federal claims, and we conclude that genuine issues of material fact preclude the entry of summary judgment on these claims.
a. First Amendment Retaliation
The plaintiff brings a First Amendment claim against the individual defendants on the basis of two separate instances-his speech to Mr. Moyer which caused Mr. Moyer to call the police, and his recording of the arrest.
In order to claim First Amendment retaliation, a plaintiff:
Must show (1) that [the defendant] engaged in a protected activity, (2) that defendant[‘] retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights, and (3) that there was a causal connection between the protected activity and the retaliatory action. A defendant may defeat the claim of retaliation by showing that it would have taken the same action even if the plaintiff had not engaged in the protected activity.Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citations omitted).
The defendants in this case argue that Figueroa was not engaged in protected activity when he threatened Mr. Moyer and when he was interfering in his own arrest while recording the arrest. They also contend that there is no causal connection between Figueroa's activity and any alleged retaliatory conduct. They further assert that it was not clearly established that Figueroa had a right to record his own arrest when such recording interfered with the police activity, and thus, they are entitled to qualified immunity.
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 (2009). “Qualified 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.” Id. Qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “Thus, so long as an official reasonably believes that his conduct complies with the law, qualified immunity will shield that official from liability.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing Pearson, 555 U.S. at 244). Although qualified immunity is generally a question of law that should be considered at the earliest possible stage of proceedings, a genuine dispute of material fact may preclude summary judgment on qualified immunity. Giles v. Kearney, 571 F.3d 318, 325-26 (3d Cir. 2009).
Qualified immunity shields officials from liability for civil damages brought pursuant to section 1983 “so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Bland v. City of Newark, 900 F.3d 77, 83 (3d Cir. 2018) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). The official seeking qualified immunity has the burden of establishing their entitlement to the affirmative defense. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014) (citing Reedy v. Evanson, 615 F.3d 197, 223 (3d Cir. 2010)). To determine whether an official is entitled to the affirmative defense of qualified immunity for a section 1983 claim, a court must determine (1) whether the official violated a constitutional right and, if so, (2) whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at 236 (permitting federal courts to exercise discretion in deciding which of the two Saucier prongs should be addressed first).
A right is clearly established if “every reasonable official would have understood that what he is doing violates that right.” Mullenix, 577 U.S. at 11. To be clearly established, there does not have to be a case that is directly on point, “but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (quoting Ashcroft v. Al-Kidd, 563 U.S. 731,741 (2011)). In determining whether a right is clearly established, courts must not define the right “at a high level of generality.” Id. (quoting Al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074.) Rather, the analysis should focus on “whether the violative nature of particular conduct is clearly established.” Id. (quoting Al-Kidd, 563 U.S. at 742). On this score, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. It is the plaintiff who bears the initial burden of demonstrating that the constitutional right at issue was clearly established at the time of the claimed violation. See Davis v. Scherer, 468 U.S. 183, 197 (1984) (“A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue.”); Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997) (“Where a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant's conduct violated some clearly established statutory or constitutional right.”).
To determine whether a right is clearly established, the court may look to cases from the Supreme Court, controlling circuit precedent, or “a robust consensus of cases of persuasive authority” from other circuit courts. Porter v. Pa. Dep't of Corrs., 974 F.3d 431, 449 (3d Cir. 2020) (quoting Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017)). Unpublished cases cannot establish a right because they do not constitute binding authority. El v. City of Pittsburgh, 975 F.3d 327, 340 (3d Cir. 2020). In rare cases, the unlawfulness of a government official's conduct may be established from the obviously unlawful nature of the defendant's conduct “even though existing precedent does not address similar circumstances.” Wesby, 138 S.Ct. at 590 (citing Brosseau v. Haugen, 543 U.S. 194, 199 (2004)).
1) Mr. Moyer
With respect to Figueroa's claim that Mr. Moyer retaliated against him because he spoke out against the Water Authority and police, we conclude that Figueroa had a clearly established First Amendment right, and there are genuine issues of material fact regarding whether the defendants violated that right. On this score, Figueroa had a First Amendment right to express his displeasure, even through the use of profanity, toward Mr. Moyer and toward the police. In Johnson v. Campbell, 332 F.3d 199 (3d Cir. 2003), the Third Circuit found that the use of profanity, when unaccompanied by actual threatening behavior, is protected by the First Amendment:
The unprotected category of speech called “fighting words” is an extremely narrow one. The First Amendment on the whole offers broad protection for speech, be it unpleasant, disputatious, or downright offensive. As the Supreme Court has explained, “a principal ‘function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.' ” Texas v. Johnson, 491 U.S. 397, 408, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting Terminiello, 337 U.S. At 4, 69 S.Ct. 894). This is why “freedom of speech, though not absolute, is
nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello, 337 U.S. at 4, 69 S.Ct. 894. To be punishable, words must do more than bother the listener; they must be nothing less than “an invitation to exchange fisticuffs.” Johnson, 491 U.S. at 409, 109 S.Ct. 2533.
This is equally true when the words are spoken in the presence of police officers. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” City of Houston v. Hill, 482 U.S. 451, 462-63, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (holding that ordinance making it unlawful to interrupt a policeman in the execution of his duty was overbroad). Indeed, the Supreme Court has suggested that the “fighting words” exception “might require a narrower application in cases involving words addressed to a police officer, because ‘a properly trained officer may reasonably be expected to exercise a higher degree of restraint' than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.' ” Id. at 462, 107 S.Ct. 2502 (quoting Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) (Powell, J., concurring)).
On the specific subject of “profane” words, the Supreme Court has held that even those words alone, unaccompanied by any evidence of violent arousal, are not “fighting words,” and are therefore protected speech. Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). In Cohen, the Supreme Court reversed a conviction for disturbance of the peace where the defendant had worn a jacket bearing the words “F-k the Draft” inside a courthouse. Id. at 16, 91 S.Ct. 1780. The Court held that it was not enough that the jacket might cause others to “rise up to commit a violent act against the person of the defendant or attempt to forcibly remove his jacket.” Id. at 17, 91 S.Ct. 1780. Because the defendant did not threaten anyone or provoke others to acts of violence, he could not be punished. The Court emphasized that even offensive and distasteful words must be protected, for “one man's vulgarity is another's lyric,” and courts cannot make principled distinctions on matters of taste and style. Id. at 25, 91 S.Ct. 1780. It is the function of words to convey “not only ideas capable of relatively
precise, detached explication, but otherwise inexpressible emotions as well.” Id. at 26, 91 S.Ct. 1780. The emotive function of an expletive “may often be the more important element of the overall message sought to be communicated,” Id.; so long as one does not incite violence, one should not be forced to express one's anger or disapproval in measured terms.Id. at 212-13.
In the instant case, Figueroa does not dispute using profane language toward Mr. Moyer when Mr. Moyer informed him that he could not turn the water on that day, and after Mr. Moyer said he was going to call the police. However, Mr. Moyer testified that at this time, Figueroa did not threaten to harm him, and that Figueroa was “agitated.” (Doc. 38-1, at 32). Accordingly, we cannot conclude that Figueroa's speech amounted to “fighting words” and were not protected by the First Amendment. We further conclude that this right was clearly established at the time of this 2019 encounter.
Moreover, there are genuine issues of material fact regarding whether Mr. Moyer violated this right by calling the police. Indeed, a factfinder could conclude that threatening to call the police in response to protected speech was retaliatory, and such action was taken because of Mr. Moyer's issue with Figueroa's speech. On this score, the parties dispute the nature of this encounter, with Figueroa claiming that Mr. Moyer was angry with him and threatening him, and then threatened to call the police when Figueroa disparaged the Water Authority. For his part, Mr. Moyer contends that he called the police because he did not feel safe checking the water with four other individuals there. Thus, viewing the facts in a light favorable to Figueroa as the nonmovant, a factfinder could conclude that Mr. Moyer violated Figueroa's First Amendment rights when he called the police.
2) Officer Moyer
With respect to his claims against Officer Moyer, Figueroa contends that Officer Moyer violated his First Amendment rights when he arrested him for recording the police encounter. For their part, the defendants contend that Figueroa's right to record was not clearly established because his recording interfered in the arrest, and because Figueroa was the person being arrested rather than a bystander recording police activity.
As we have found with respect to Ms. Aguilar's claims arising out of this incident:
The right of individuals to record public police activity has been clearly established within the Third Circuit since 2017. See Fields v. City of Philadelphia, 862 F.3d 353, 359 (3d Cir. 2017) (“recording police activity in public falls squarely within the First Amendment right of access to information”). In upholding this right, Fields ruled that:
The First Amendment protects the public's right of access to information about their officials' public activities. It “goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”
Id. (quoting First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978)) (emphasis added). This holding does not distinguish between the actions of law enforcement and other government officials; rather, the Fields court openly acknowledged the applicability of its ruling to
all “government” officials, regardless of position. Id.; see also Karns v. Shanahan, 879 F.3d 504, 524 n.12 (3d Cir. 2018) (granting qualified immunity to transit officers but noting that the challenged conduct of prohibiting recording of police activity occurred before Fields); Contreras v. Conrad, No. 3:17-CV-02360, 2020 WL 2193429, at *10 (M.D. Pa. May 6, 2020) (same).Aguilar v. Moyer, Civ. No. 3:21-CV-595 (Doc. 47, at 18-19).
On this score, the defendants contend that Fields applies only to bystanders who record police activity, and thus, because Figueroa was the arrestee, Fields does not apply here. However, we should decline to adopt such a narrow reading of Fields. It is undisputed that Figueroa began to record prior to the encounter with Officer Moyer. Thus, accepting the defendants' narrow interpretation of Fields would yield an illogical result in which a member of the public is permitted to record police activity only until he becomes the subject of that police activity. Accordingly, we conclude that Figueroa's right to record his police encounter was clearly established at the time of the incident in 2019.
We further conclude that there are genuine disputes of material fact regarding whether Officer Moyer's alleged retaliatory arrest violated the First Amendment. On this score, as we have noted, what occurred during this police encounter is hotly contested by the parties. The defendants contend that Figueroa's recording interfered with his arrest, and further, that the existence of probable cause for the arrest negates any claim of a retaliatory arrest. Indeed, the Supreme Court of the United States has held that where an officer has probable cause to arrest an individual, “[a] retaliatory arrest claim fails as a matter of law.” Nieves v. Bartlett , 139 S.Ct. 1715, 1728 (2019). However, a finding that probable cause existed is typically a factual issue. See Halsey v. Pfeiffer, 750 F.3d 273, 300 (3d Cir. 2014); Groman v. Twp. of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995). As we will discuss in greater detail with respect to the plaintiff's Fourth Amendment claims, we conclude that the question of probable cause in this case should be left to a factfinder given the myriad factual disputes encompassing this police encounter. Accordingly, the defendants' motion should be denied with respect to the First Amendment claims.
b. Fourth Amendment Claims
Figueroa also asserts a claim of unreasonable search and seizure against both individual defendants, contending that he was subject to an unlawful investigative detention and subsequent unlawful arrest without probable cause. He also brings a malicious prosecution against Officer Moyer, claiming that Officer Moyer initiated his criminal prosecution without probable cause.
Under the Fourth Amendment, an arrest without probable cause is a constitutional violation that may be redressed under 42 U.S.C. § 1983. See Walmsley v. Philadelphia, 872 F.2d 546, 551 (3d Cir. 1989) (citing Patzig v. O'Neill, 577 F.2d 841, 848 (3d Cir. 1978)). However, in order to make out a false arrest claim, a plaintiff must demonstrate that police lacked probable cause to arrest. Groman, 47 F.3d at 634. Similarly:
To prove malicious prosecution under section 1983, a plaintiff must show that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003) (emphasis added).
Thus, whether characterized as a false arrest, or couched in terms of malicious prosecution, proof that probable cause was lacking is essential to any § 1983 claim arising out of the arrest and prosecution of an individual. For purposes of the Fourth Amendment, probable cause to arrest exists “whenever reasonably trustworthy information or circumstances within a police officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been committed by the person being arrested.” U.S. v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). An arrest by a police officer without a warrant “is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). In conducting an inquiry into whether probable cause to arrest existed, a court should consider the totality of the circumstances presented, and “must assess the knowledge and information which the officers possessed at the time of arrest, coupled with the factual occurrences immediately precipitating the arrest.” United States v. Stubbs, 281 F.3d 109, 122 (3d Cir. 2002).
Although “[t]he probable-cause standard is incapable of precise definition or quantification,” Maryland v. Pringle, 540 U.S. 366, 371 (2003), all interpretations of probable cause require “a belief of guilt that is reasonable as opposed to certain.” Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (citing Hill v. California, 401 U.S. 797, 804 (1971)). Probable cause “does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” Wright, 409 F.3d at 602 (quoting Adams v. Williams, 407 U.S. 143, 149 (1972)). Accordingly, the evidentiary standard for probable cause is significantly lower than that required for conviction. Id. (citing Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)); see also Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (holding that probable cause requires only a “fair probability” that a person committed the relevant crime).
Because an arrest is made with probable cause if at the moment it was made the facts and circumstances within the officer's knowledge “were sufficient to warrant a prudent man in believing that [the suspect] had committed or was committing an offense,” Beck, 379 U.S. at 91, the constitutional validity of an arrest does not turn on whether the suspect actually committed any crime. Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003). Thus, “[t]he determination that probable cause exists is fundamentally a factual analysis that must be performed by officers at the scene. It is the function of the court to determine whether the objective facts available to the officers at the time of arrest were sufficient to justify a reasonable belief that an offense was being committed.” United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984).
In the instant case, the defendants contend that these Fourth Amendment claims fail because there was probable cause to arrest Figueroa. Alternatively, they argue that they are entitled to qualified immunity because it was not clearly established that Officer Moyer could not arrest Figueroa if he had probable cause to believe a crime had occurred. However, as we have noted, the determination of probable cause is generally a fact-bound determination. Further, in a case such as this, where the facts leading up to and surrounding Figueroa's arrest-including the motivations of Officer Moyer and Mr. Moyer-are fiercely disputed, we cannot conclude as a matter of law that Officer Moyer had probable cause to arrest Figueroa, and thus, the motion for summary judgment should be denied as to these Fourth Amendment claims against Officer Moyer.,
The elements of a common law malicious prosecution claim in Pennsylvania are identical to a § 1983 claim. See Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. Ct. 1995). Thus, our analysis applies equally to the state law malicious prosecution claim brought against Officer Moyer.
The factual dispute regarding the issue of probable cause also defeats the defendants' argument that they are entitled to qualified immunity.
As for the defendants' contention that Mr. Moyer cannot be liable for a Fourth Amendment violation because he did not have arresting powers, courts in this circuit have held that a third party can be liable for false arrest if he “instigates” the arrest. See e.g., Hof v. Janci, 2018 WL 6318381, at *6 (D.N.J. Dec. 3, 2018); Kovalev v. City of Phila., 2017 WL 770945, at *7 (E.D. Pa. Feb. 28, 2017); O'Hara v. Hanley, 2009 WL 2043490, at *5 (W.D. Pa. July 8, 2009). Here, Figueroa contends that Mr. Moyer provided a false narrative of events to his son, Officer Moyer, in order to effectuate Figueroa's arrest. Although this contention is disputed, viewing the facts in a light most favorable to Figueroa as the nonmovant, a reasonable juror could conclude that Mr. Moyer knowingly provided false information in order to instigate the arrest. Thus, the motion for summary judgment should also be denied as to the Fourth Amendment claim against Mr. Moyer.
c. Conspiracy
Figueroa also brings a conspiracy claim against the defendants, alleging that they conspired to deprive him of his constitutional rights. To prevail on a § 1983 conspiracy claim, a plaintiff must prove that individuals “acting under color of state law ‘reached an understanding' to deprive him of his constitutional rights.” Jutrowski v. Twp. Of Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52 (1970)). On this score, a plaintiff must show that the deprivation of his constitutional rights was the object of the conspiracy, and that the individuals involved were part of an agreement to deprive him of those rights. Jutrowski, 904 F.3d at 295. This can include evidence showing that “the alleged conspirators ‘did or said something . . . to create an understanding.'” Id. (quoting Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178-79 (3d Cir. 2010)).
In the instant case, Figueroa has set forth evidence from which a reasonable juror can conclude that the defendants conspired against him to deprive him of his constitutional rights. Figueroa points to the dash cam video which shows Officer Moyer speaking with Mr. Moyer prior to the encounter between Figueroa and Officer Moyer. As Figueroa notes, no audio captured the substance of this communication. While we regard this as a close case, viewing these facts in a light favorable to Figueroa as we must at this stage, a factfinder could conclude that the Moyers reached an agreement to violate Figueroa's constitutional rights. Moreover, as we have explained, there is evidence in the record from which a factfinder could conclude that Figueroa's First and Fourth Amendment rights were violated.
To the extent that Figueroa again invites us to rely on Mr. Moyer's criminal conviction in support of a conspiracy claim based on racial animus under 42 U.S.C. § 1985, we should decline to do so, as Figueroa has provided no evidence in support of such a claim.
The defendants further argue that the intracorporate conspiracy doctrine bars this conspiracy claim. Under this doctrine, “a corporate entity cannot conspire with one who acts as its agents.” Rife v. Borough of Dauphin, 625 F.Supp.2d 212, 22122 (M.D. Pa. 2008) (quoting Bair v. Purcell, 500 F.Supp.2d 468, 501 n. 28 (M.D. Pa. 2007)) (internal quotations omitted). However, “even where courts have extended the intracorporate conspiracy doctrine to a public entity and its employees, they have found the doctrine inapplicable when individual defendants are alleged to have been ‘motivated by any independent personal stake in achieving the [organization's] objective.'” Id. (citations omitted).
Here, we agree that there are no facts from which we can infer that the Borough as an entity conspired with the individual defendants, and thus the conspiracy claim should be dismissed as to this defendant. However, Figueroa has set forth evidence showing that the individual defendants may have conspired with each other. Indeed, “[w]hether [the] [i]ndividual [d]efendants were motivated by independent personal stake is a factual issue.” Rife, 625 F.Supp.2d at 222. Accordingly, given the factual disputes that permeate this litigation, the individual defendants are not entitled to summary judgment on this conspiracy claim.
2. There are Genuine Disputes of Material Fact with Respect to the Plaintiff's State Law Claims.
The plaintiff also brings state law claims against the individual defendants. As we have explained, with respect to the plaintiff's claim under Pennsylvania law for malicious prosecution lodged against Officer Moyer, our analysis is identical to that of his federal claim, and we conclude that there are questions of fact as to the issue of probable cause that would render summary judgment inappropriate as to this claim.
Figueroa also brings a claim for assault and battery against Mr. Moyer under state law. In Pennsylvania,
The tort of assault requires that the defendant act with the intent to place the plaintiff in apprehension of imminent harmful or offensive bodily contact and that the plaintiff actually experience such apprehension. See Heverly v. Simcox, No. 4:05-1370, 2006 WL 2927262, at *9 (M.D. Pa. Oct. 11, 2006); D'Errico v. DeFazio, 763 A.2d 424, 431 n. 2 (Pa. Super Ct. 2000). Battery requires proof that the defendant acted with the intent to cause harmful or offensive bodily contact with the person of the plaintiff and that such contact actually followed. See Fulks ex rel. Daniel v. Gasper, 439 F.Supp.2d 372, 379 (M.D. Pa. 2006); Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1130 (Pa. Super. Ct. 1999).Dull v. W. Manchester Twp. Police Dep't, 604 F.Supp.2d 739, 754 (M.D. Pa. 2009).
Thus, “[a] battery is defined as a ‘harmful or offensive contact' with the person of another,” and requires such contact as an element of this tort. C.C.H. v. Philadelphia Phillies, Inc., 940 A.2d 336, 340 (2008). Therefore, the relationship between these two torts has been aptly described by the Pennsylvania courts in the following terms: “ ‘Assault is an intentional attempt by force to do an injury to the person of another, and a battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person.'” Renk v. City of Pittsburgh, 641 A.2d 289, 293 (1994) (quoting Cohen v. Lit Brothers, 70 A.2d 419, 421 (1950)) (citation omitted).
Here, Mr. Moyer does not deny that he had contact with Figueroa's person, but rather contends that his contact with the plaintiff's person was privileged because he was acting in defense of Officer Moyer. Indeed, in Pennsylvania, a person is permitted to use force in defense of a third person if “the actor believes that his intervention is necessary for the protection of such other person.” 18 Pa. Cons. Stat. § 506(a)(3). However, as we have discussed, the entire encounter leading up to and including Figueroa's arrest is disputed by the parties, and there is no evidence in the record from which we could conclude as a matter of law that Mr. Moyer's actions were taken in defense of Officer Moyer. In order to grant summary judgment on this claim, we would have to credit Mr. Moyer's and Officer Moyer's version of the events over Figueroa's, something we cannot do at the summary judgment stage. Instead, such a determination must be made by a trier of fact. Accordingly, Mr. Moyer is not entitled to summary judgment on Figueroa's state law assault and battery claim.
We reach the same conclusion with respect to Mr. Moyer's argument that he is entitled to official immunity under 42 Pa. Cons. Stat. § 8546(1)(2).
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion for summary judgment (Doc. 37) be GRANTED as to the plaintiff's Monell claim and conspiracy claim against the Borough, and that the Borough be dismissed as a defendant, and that the motion be DENIED as to the remainder of the plaintiff's claims.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.