Opinion
CIVIL NO: 4:18-CV-00157
02-25-2020
JOSEPH ROBERT MARKLE, Plaintiff v. MICHAEL R. ADAMS, et al., Defendants
(Judge Brann) () REPORT AND RECOMMENDATION
I. Introduction.
This civil rights case comes before us on a motion for summary judgment filed by Michael R. Adams ("Adams")—a retired trooper with the Pennsylvania State Police. For the reasons that follow, we find that Adams is entitled to summary judgment on the merits.
II. Background and Procedural History.
This case began when the plaintiff, Joseph Robert Markle ("Markle"), proceeding pro se, filed a complaint in the United States District Court for the Eastern District of Pennsylvania. Doc. 2. On January 17, 2018, United States District Judge Mark A. Kearney transferred the case to this district. Id.
In his original complaint, Markle alleged that he was "illegally arrested and detained for over 300 days," but he did not plead any facts to support that conclusion. Doc. 4. Markle then filed an amended complaint on February 16, 2018. Doc. 8. Markle's amended complaint named six defendants: Adams, Barrett, Gallagher, Ondrey, Wilson, and Heather Shaffer-Rockwell ("Shaffer-Rockwell")—a confidential informant who allegedly worked with Adams. Adams is the only remaining defendant. Barret, Gallagher, Ondrey, and Wilson were dismissed by Judge Brann's Order adopting our Report and Recommendation (see doc. 44), and the Clerk's Office entered default judgment against Shaffer-Rockwell (docs. 45, 55). Markle's amended complaint raises three counts, pursuant to 42 U.S.C. § 1983, against Adams: unlawful arrest and incarceration under the Fourth Amendment, malicious prosecution, and civil conspiracy. Id.
Markle's amended complaint alleges that Adams unlawfully arrested Markle and effectuated an unlawful prosecution against him. Id. ¶ 1. The amended complaint alleges that Adams and Shaffer-Rockwell "worked and lied together" to make it appear that Markle was selling methamphetamine. Id. ¶ 11. Per the amended complaint, Adams knowingly made false or misleading statements to a magistrate for the purpose of securing an arrest warrant, id. ¶ 2; testified falsely during Markle's preliminary hearing that he had subpoenaed phone records and that the phone in question belonged to Markle, id. ¶¶ 4-5; testified falsely about receiving text messages from Shaffer-Rockwell (who was allegedly acting as Adams's confidential informant in the case), id. ¶ 6; testified falsely about Shaffer-Rockwell's reliability and registration as a confidential informant, id. ¶ 7; and testified falsely that he had seen Markle and Shaffer-Rockwell engage in a conversation and that Shaffer-Rockwell had never left his sight, id. ¶ 8. Markle further alleges that Adams's testimony that he had searched Shaffer-Rockwell before she had approached Markle was false because such a search would have shown that Shaffer-Rockwell was concealing drugs on her person for the purpose of making it appear that Markle was selling drugs. Id. ¶ 13. Finally, Markle alleges that Adams and Shaffer-Rockwell engaged in a civil conspiracy by agreeing to fabricate evidence so as to represent that Shaffer-Rockwell was a registered and reliable confidential informant and by agreeing to, planning, and carrying out a fraudulent purchase of drugs using false evidence so as to set up Markle for arrest and prosecution. Id. ¶¶ 30-32.
Adams filed an answer to Markle's amended complaint raising qualified immunity and asserting that Markle did not adduce facts or evidence sufficient to support his claims for malicious prosecution, unlawful arrest and incarceration, and civil conspiracy. Doc. 45 at 9-10. Markle responded to Adams's answer on February 13, 2019, and he filed an amended response on February 21, 2019. Docs. 47, 49. Thereafter, Adams filed a motion for summary judgment on August 5, 2019 (doc. 56), and Markle filed a brief in opposition on January 16, 2020 (doc. 71). The motion is now ripe for review.
III. Summary Judgment Standards.
"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Fed. R. Civ. P. 56(a). "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." Id.
In a summary judgment motion, the moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect to an issue on which the nonmoving party bears the burden of proof, the moving party may discharge that burden by "'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Once the moving party has met its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleading; rather, the nonmoving party must show a genuine dispute by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" or "showing that the materials cited do not establish the absence . . . of a genuine dispute." Fed. R. Civ. P. 56(c). If the nonmoving 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 nonmoving party provides merely colorable, conclusory, or speculative evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). There must be more than a scintilla of evidence supporting the nonmoving party's claims and more than some metaphysical doubt as to the material facts. Id. at 252. "Where 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. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
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, 477 U.S. at 248. 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. When "faced with a summary judgment motion, the court must view the facts 'in the light most favorable to the nonmoving party.'" N.A.A.C.P. v. N. Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
At the summary judgment stage, the judge's function is not to weigh the evidence or to determine the truth of the matter; rather it is to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The proper inquiry for the court "is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.
IV. Material Facts.
When filing a motion for summary judgment, the moving party must comply with local Rule 56.1, which requires the party to file "a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried." M.D. Pa. L.R. 56.1. Once the party has filed such a statement, the non-moving party is required to file "a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the [moving party's] statement . . . as to which it contended that there exists a genuine issue to be tried. Id.
Here, Adams filed a statement of material facts on August 5, 2019. Doc. 58. Despite being ordered to do so (doc. 67), and in contravention of Local Rule 56.1, Markle did not file a counter-statement of material facts; instead, Markle included a "statement of facts" in his brief in opposition to summary judgment in which he merely restated the allegations of his amended complaint. See doc. 71 at 1-5. While Markle's brief references various documents attached to his amended complaint throughout his statement of facts, he provides no citations to the record to support such statements. Consequently, we do not consider those documents. Cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs."). Under these circumstances, Markle's failure to comply with Local Rule 56.1 compels us to treat Adams's material facts as undisputed. Accordingly, the following facts are undisputed.
Even when the litigant is pro se, courts have deemed a proponent's material facts undisputed when the pro se litigant fails to adequately file a counter-statement of material facts in accordance with Local Rule. 56.1. See Kuhn v. Capitol Pavilion, No. 1:11-CV-2017, 2012 WL 5197551, *9 (M.D. Pa. Oct. 19, 2012).
On January 19, 2017, Adams, a former Pennsylvania State Trooper, wrote an affidavit of probable cause for the purpose of obtaining a warrant for Markle's arrest. Doc. 58 at 1 ¶¶ 1, 2. The affidavit of probable cause provided that a confidential informant, Shaffer-Rockwell, contacted Adams regarding the purchase of methamphetamine from Markle. Id. at 2 ¶ 2. Shaffer-Rockwell organized a drug transaction with Markle to take place on October 26, 2016. Id. ¶ 5. Prior to the transaction, Adams searched Shaffer-Rockwell's person for drugs and money and found nothing. Id. ¶ 4. Adams then transported Shaffer-Rockwell to the designated location to meet Markle. Id. ¶ 5. Once Adams and Shaffer-Rockwell arrived at the designated location, a black colored Hyundai sedan parked next to Adams's vehicle. Id. ¶ 6. Adams identified Markle as the driver of the vehicle, and Shaffer-Rockwell exited Adams's vehicle and entered Markle's vehicle through the front passenger side door. Id. ¶¶ 7, 8. After the transaction took place, Shaffer-Rockwell returned to Adams's vehicle and provided Adams with a clear plastic bag containing crystal methamphetamine. Id. ¶ 9. At the direction of Adams, Shaffer-Rockwell organized another meeting with Markle for October 31, 2016. Id. at 3 ¶¶ 11, 12. Like the first transaction, Adams drove Shaffer-Rockwell to the designated location, and Markle arrived and parked next to Adams's vehicle. Id. ¶¶ 13, 14. Shaffer-Rockwell entered Markle's vehicle and then returned to Adams's vehicle with a clear plastic bag of crystal methamphetamine. Id. ¶¶ 15, 16.
Thereafter, a magisterial district judge signed off on an arrest warrant charging Markle with Delivery of and Possession with the Intent to Deliver a Controlled Substance, Criminal Use of a Communication Facility, and Possession of a Controlled Substance. Id. ¶ 18. And, during a routine traffic stop, police arrested Markle pursuant to the warrant. Id. ¶ 19. Ultimately, Markle was acquitted of all charges. Id. at 4 ¶ 22.
V. Discussion.
Markle claims, pursuant to 42 U.S.C. § 1983, that Adams violated his constitutional rights by way of unlawful arrest and incarceration, malicious prosecution, and civil conspiracy. Adams contends that Markle failed to adduce any evidence to support his claims, and in the alternative that he is entitled to qualified immunity.
A. Legal Standard for 42 U.S.C. § 1983 Actions.
It is well-settled that "[s]ection 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States." Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). Section 1983 "does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right." Id. To prevail in an action under § 1983, the plaintiff must demonstrate a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
There is no dispute that Adams was acting under the color of state law at the time he obtained the arrest warrant for Markle. What remains is whether Markle can demonstrate a deprivation of a federally protected right.
B. Unlawful Arrest and Incarceration.
Markle brings a claim for unlawful arrest and incarceration. To prevail on a claim for unlawful arrest and incarceration, "a plaintiff must establish: (1) that there was an arrest; and (2) that the arrest was made without probable cause." James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012).
Markle was arrested during a routine traffic stop pursuant to the arrest warrant obtained by Adams. Doc. 58 at 4 ¶ 22. There is no dispute that Markle was arrested. Accordingly, the crux of Markle's argument is that he was arrested without probable cause. "The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances." Maryland v. Pringle, 540 U.S. 366, 371 (2003). "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." Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995). "[T]he evidentiary standard for probable cause is significantly lower than the standard which is required for conviction," and it is "irrelevant in a probable cause inquiry" whether "a person is later acquitted of the crime" in question. Halsey, 750 F.3d at 299 (internal citations and quotations omitted). "While the question of probable cause is generally left to the jury, a court may conclude that probable cause exists as a matter of law 'if the evidence viewed most favorably to [the nonmoving party], reasonably would not support a contrary finding." Id.
Moreover, as the Third Circuit has aptly noted, "[t]here is tension inherent in evaluating probable cause at the summary judgment stage." Dempsey v. Bucknell University, 834 F.3d 457, 468 (3d Cir. 2016). Notably, "the summary judgment standard asks whether there is a 'genuine dispute as to any material fact,' viewing the evidence 'in the light most favorable to the nonmoving party.'" Id. (internal citations omitted). The probable cause standard, however, "allows for the existence of conflicting, even irreconcilable, evidence" Id. (citing Wright v. City of Phila., 409 F.3d 595, 603 (3d Cir. 2005)). Thus, "when the question is one of probable cause, the summary judgment standard must tolerate conflicting evidence to the extent it is permitted by the probable cause standard." Id. That is, where a reasonable jury could conclude that the facts, viewed in the light most favorable to the nonmoving party, did not demonstrate a "fair probability" that a crime occurred, "only then would the existence of conflicting evidence rise to the level of a "genuine dispute as to any material fact." Id.
A plaintiff who asserts that probable cause is lacking because an officer submitted a false affidavit to a magisterial district judge must satisfy the two-part test established in Franks v. Delaware, 438 U.S. 154, 155-56 (1978). In order to satisfy the test articulated in Franks, the plaintiff must prove, by a preponderance of the evidence, "(1) that the affiant knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant; and (2) that such statements or omissions are material, or necessary, to the finding of probable cause." Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997).
Here, Markle claims that Adams submitted false information to the magisterial district judge through his affidavit of probable cause and knowingly withheld information regarding Shaffer-Rockwell's prior convictions for providing false information to police. Doc. 71 at 2. Markle, however, fails to adduce any evidence of record to support his claims, and, in his brief, Markle merely recites the allegations from his amended complaint. Importantly, Markle is obliged to provide "affirmative evidence, beyond the allegations of the pleadings" to support his claims. Anderson, 477 U.S. at 256-57. While Markle's allegations were sufficient to survive a motion to dismiss, they are not enough to survive a motion for summary judgment. Consequently, Markle fails to establish how there is a genuine dispute of material fact, and summary judgment should be granted on his unlawful arrest and incarceration claim.
C. Malicious Prosecution.
Markle also claims that Adams initiated a malicious prosecution against him when he obtained an arrest warrant that was not premised on probable cause. Adams again contends that Markle failed to adduce any evidence to support his claim.
Markle also alleges that Adams perjured himself during the preliminary hearing and trial and that his perjured testimony supports the allegation that Adams initiated a malicious prosecution. We will not consider, however, any of Adams's witness testimony as evidence, because a witness is absolutely immune from damages under 42 U.S.C. § 1983 based on his or her testimony in court. Briscoe v. LaHue, 460 U.S. 325, 326 (1983); See also Williams v. Hepting, 844 F.2d 138, 140-41 (3d. Cir. 1988) (extending the immunity discussed in Briscoe to pre-trial proceedings). --------
Under § 1983, malicious prosecution is established by showing that
(1) The defendant initiated criminal proceedings; (2) the criminal proceedings ended in [the plaintiff's] favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered [a] deprivation of liberty consistent with the concept of seizure as a consequence of the legal proceeding.Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014). When a plaintiff fails to proffer "evidence sufficient to create a triable issue of fact as to all five prongs, [his or her] malicious prosecution claim must fail as a matter of law." Wood v. Noonan, 147 F.Supp. 3d 262, 281 (M.D. Pa. 2015).
With regard to malicious prosecution claims brought against a police officer, "[i]t is well settled law that 'officers who conceal or misrepresent material facts to the district attorney are not insulated from a § 1983 claim for malicious prosecution simply because the prosecutor, grand jury, trial court, and appellate court all act independently to facilitate erroneous convictions." Id. (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1292 (10th Cir. 2004)). "If the officers influences or participated in the decision to institute criminal proceedings, they can be liable for malicious prosecution." Id. (citing Sykes v. Anderson, 625 F.3d 294, 308-09, 317 (6th Cir. 2010)).
Adams was the trooper who obtained the arrest warrant for Markle for Delivery of and Possession with the Intent to Deliver a Controlled Substance, Criminal Use of a Communication Facility, and Possession of a Controlled Substance. Doc. 58 ¶ 18. After a jury trial, Markle was acquitted of all charges. Id. ¶ 22. Thus, the first two prongs of the analysis are not in dispute.
Like his unlawful arrest and incarceration claim, the crux of Markle's malicious prosecution argument is that Adams lacked probable cause to initiate criminal proceedings against him. In this regard, Markle makes the same arguments as he did for his unlawful arrest and incarceration claim: Adams lied throughout the entire affidavit of probable cause, and Adams knew of Shaffer-Rockwell's prior convictions for providing false information to police but nonetheless deemed Shaffer-Rockwell reliable. Doc. 71 at 2. Id. at 5. Again, Markle fails to cite to any evidence of record to support his argument, and he relies entirely on recitations of the allegations in his amended complaint. As discussed above, Markle cannot withstand summary judgment by merely restating the allegations of his amended complaint. Because Markle has no evidence to prove his claim, summary judgment also should be granted on the malicious prosecution claim.
D. Civil Conspiracy.
Last, Markle claims that Adams entered into a conspiracy to falsely arrest and convict him. A conspiracy under § 1983 is "'a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict wrong against or injury upon another, and an overt act that results in damage.'" Adams v. Teamsters Local 115, 214 Fed. App'x. 167, 172 (3d Cir. 2007)(quoting Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979), rev'd in part on other grounds).
Markle does not cite to any record evidence to support his argument that "[his] claim of conspiracy should not be [dismissed] because there is evidence that Defendant Adams and [Shaffer-Rockwell] conspired to set up plaintiff." Doc. 71 at 5. Yet again, Markle restates the allegations from his amended complaint and provides nothing more. Accordingly, summary judgment also should be granted on the civil conspiracy claim.
E. Qualified Immunity.
Because Adams is entitled to summary judgment on the merits, we do not address whether Adams is entitled to qualified immunity.
VI. Recommendations.
Based on the foregoing, we recommend that the court GRANT the defendant's motion (doc. 56) for summary judgment.
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.
Submitted this 25th day of February, 2020.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge