Armstrong v. Borie

• Decision Date: 29 July 1980
• Docket Number: Civ. A. No. 75-1291.
• Citation: 494 F. Supp. 902
• Parties: Mark A. ARMSTRONG v. Officer Charles BORIE et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

494 F. Supp. 902

Mark A. ARMSTRONG v. Officer Charles BORIE et al.

Civ. A. No. 75-1291.

United States District Court, E. D. Pennsylvania.

July 29, 1980.

Marshall E. Kresman, Philadelphia, Pa., for plaintiff.

Stephen T. Saltz, Deputy City Sol., Philadelphia, Pa., for defendants.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

The plaintiff, Mark Armstrong, brought suit under 42 U.S.C. §§ 1983, 1985 and 1986 against two Philadelphia police officers, the then Police Commissioner, and the City of Philadelphia, alleging that his Constitutional rights were violated in that he was arrested without probable cause, beaten, and subjected to a strip search by the two police officers. The plaintiff also raised pendent state tort law claims of false arrest and assault and battery. The case was tried before a jury on March 6, 7, 8, and 9, 1979. At the close of plaintiff's case, the Court granted a motion for directed verdict in favor of Commissioner O'Neill on all claims, and in favor of the City of Philadelphia on the federal claims. The jury returned a verdict on special interrogatories for all remaining defendants on the federal and state law claims. The plaintiff has moved for a new trial under Rule 59 of the Federal Rules of Civil Procedure setting forth the following grounds:

1. The jury's answers to special interrogatories were contrary to the evidence.

2. The jury's answers to special interrogatories were contrary to the overwhelming weight of credible evidence and the trial record.

3. The jury's answers to special interrogatories were contrary to the law.

4. The Learned Trial Judge committed prejudicial error in dismissing those charges against all of the defendants encompassed in Count II, 42 U.S.C. § 1985 at the close of plaintiff's case in chief.

5. The Learned Trial Judge committed prejudicial error in dismissing those actions against all of the defendants encompassed in Count III, 42 U.S.C. § 1986 at the close of plaintiff's case in chief.

6. The Learned Trial Judge committed prejudicial error in dismissing those allegations against the defendants City of Philadelphia and Joseph F. O'Neill contained in Count I, 42 U.S.C. § 1983 at the close of plaintiff's case in chief.

7. The Learned Trial Judge committed prejudicial error in dismissing all allegations against defendant Joseph O'Neill at the close of plaintiff's case in chief.

8. The Learned Trial Judge erred in failing to affirm plaintiff's point for charge No. 7 as to the duty of police officers from preventing other officers violating the civil rights of the plaintiff.

9. The Learned Trial Judge erred in failing to affirm plaintiff's point for charge No. 8 in that defendant Borie being a supervisory officer was liable for the acts of others under his command even if the jury did not believe that he personally struck plaintiff Mark A. Armstrong.

10. The Learned Trial Judge erred in failing to affirm plaintiff's point for charge No. 19 in that there was sufficient evidence for the jury to find a conspiracy existing between two or more persons and therefore such conspiracy charge should have been given.

11. The Learned Trial Judge erred in failing to question the jurors on Friday, March 9, 1979, as to whether their judgment on the liability issue would be affected by the fact that they would have to return for a subsequent trial on the damages sustained by the plaintiff. The Court made further error in not agreeing to inform the jury that if their judgment would be affected, one or more of the jurors could be discharged or an entire new jury could hear the damages issue.

12. The Learned Trial Judge erred in continuing to permit the defendants, over the numerous objections of the plaintiff, to question the plaintiff and other witnesses about plaintiff's involvement in the robbery of Melvin Suitley.

13. The Learned Trial Judge erred in permitting defense counsel to make closing argument and refer and conjecture as to the plaintiff's possible involvement in the robbery of Melvin Suitley.

14. The Learned Trial Judge erred in refusing to permit plaintiff to restrict the reading into testimony of the previous testimony of Victor Strong to those portions of Victor Strong's previous testimony relevant to the issues in this case. By reason of the Court's requirement that all of Victor Strong's testimony be read to the jury in this matter, those prejudicial matters dealing with conjecture as to plaintiff's participation of the robbery of Melvin Suitley were brought into issue before the jury.

15. And for such other reasons as may appear on detailed consideration and study of the entire record.

16. In the interest of fairness and justice and in light of the sum total effect of all the foregoing reasons on the ability of plaintiff Mark A. Armstrong to receive a fair and impartial non-prejudicial trial on the merits of his claim against each of the defendants.

I. Sufficiency of the Evidence.

Plaintiff contends that there was insufficient evidence from which a jury could reasonably conclude that the defendants Borie and King did not violate plaintiff's Constitutional rights in connection with plaintiff's arrest, search, and alleged beating. The plaintiff claimed that he was arrested without probable cause for the robbery and assault and battery of Melvin Suitley. He testified that on the night of the robbery he was arrested while walking home from his girlfriend's house which was in the vicinity of the scene of the robbery. (N.T. 2.34-2.37). He further testified that, after arriving at the police station, Officer Borie hit him in the face several times, threw him to the floor, and kicked him. (N.T. 2.46-2.47). The plaintiff also testified that Officer King grabbed him by the neck and pulled or dragged him. (N.T. 2.48). Finally, plaintiff testified that Officer King conducted a strip search during which plaintiff was required to stand for five to ten minutes naked and bent over. (N.T. 2.50).

In connection with the issue of probable cause for the arrest of Mark Armstrong, Officer King testified that he recognized Mark Armstrong as fitting the description of the person he had seen running from Melvin Suitley's home immediately after the robbery. (N.T. 3.146-3.147). Officer King testified that he detained the plaintiff outside Mr. Suitley's home and Mr. Suitley came out and identified him as one of the juveniles who had robbed and beaten him. (N.T. 3.151). Officer King further testified that he did not see anyone strike the plaintiff while he was at the police station. (N.T. 3.170). Officer Borie testified that he did not pull, drag, pinch, or kick Mr. Armstrong at any time. (N.T. 4.18). As to the strip search, Officer King testified that he conducted a strip search of plaintiff to determine whether the keys which were taken from Mr. Suitley's home were hidden on his body. He further testified that the entire search took about five minutes, from the time the plaintiff undressed until he redressed. Officer King testified that nothing was deliberately done during the search to humiliate the plaintiff, other than the procedures essential to the search, which are of necessity embarrassing. (N.T. 3.163-3.167). Officer Borie testified that he did not personally participate in the strip search, but that he agreed that it was necessary to make such a search for the missing keys. (N.T. 4.16). A search of a suspect subsequent to a lawful arrest is permissible and may include requiring him to remove his clothes, provided that the search is reasonably designed to detect hidden evidence, drugs, or objects which might be used to inflict harm on the suspect or others. A strip search may not, however, be performed as a pretext to humiliate or degrade the suspect. United States v. Klein, 522 F.2d 296, 300 (1st Cir. 1975). The Court so charged the jury.

It is clear, therefore, that the evidence presented by plaintiff was contradicted in every respect by defendant's testimony. Thus, the verdict depended on an assessment of the witnesses' credibility. Since the assessment of credibility is solely for the jury, it would be an invasion of the jury's province to grant a new trial merely because the evidence was sharply in conflict. Lewin v. Metropolitan Life Insurance, 394 F.2d 608 (3d Cir. 1968); Barrett v. Robinson, 65 F.R.D. 652 (E.D.Pa.1975).

II. § 1985 and § 1986 Claims.

Plaintiff claims that it was error for the Court to grant a directed verdict as to his claims under 42 U.S.C. §§ 1985 and 1986. Section 1985 prohibits conspiracies "with an intent to deny to any citizen the equal protection of the laws . . .". Such a cause of action requires an allegation of a "class based, invidiously discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Novotny v. Great Am. Federal Sav. & L. Ass'n, 584 F.2d 1235 (3d Cir. 1978, en banc), rev'd on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). Plaintiff testified that the defendant Borie used racial epithets. (N.T. 2.44). However, this is, at most, evidence of an individual "discriminatory animus" on the part of Borie. There was absolutely no evidence from which the jury could have found the agreement or concert of action necessary to constitute a conspiracy. See United Aircraft Corp. v. Boreen, 413 F.2d 694 (3d Cir. 1969). Therefore, the defendants' motion for directed verdict was properly granted as to the § 1985 claim. Since a § 1986 claim requires knowledge of a § 1985 conspiracy, the motion for directed verdict was likewise properly granted.

III. City of Philadelphia and Joseph O'Neill.

The plaintiff contends that it was error for the Court to grant a motion for directed verdict in favor of the City of Philadelphia and former Police Commissioner O'Neill at the close of plaintiff's case. There was absolutely no evidence that Commissioner O'Neill participated in or had knowledge of the events which were the subject of plaintiff's complaint. Personal...