Gwynn v. City of Phila.

Decision Date16 August 2012
Docket NumberCivil Action No. 11–1128.
Citation866 F.Supp.2d 473
PartiesMichael GWYNN and Brendon Ryan, Plaintiffs, v. CITY OF PHILADELPHIA, Charles Ramsey, Michael Kelly, Melvin Singleton, Salvatore Fede and Frank Pulombo, Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania


Brian M. Puricelli, Law Offices of Brian Puricelli, Newtown, PA, for Plaintiffs.

Shant H. Zakarian, City of Philadelphia Law Dept., Philadelphia, PA, for Defendants.


ROBERT F. KELLY, Senior District Judge.

Presently before the Court is Defendants, City of Philadelphia (the City), Charles Ramsey,1 Michael Kelly,2 Melvin Singleton, Salvatore Fede, and Frank Palumbo's(collectively, the Defendants), 3 Motion for Summary Judgment against Plaintiffs, Michael Gwynn (Officer Gwynn) and Brendan Ryan (Officer Ryan) (collectively, the Plaintiffs). For the reasons set forth below, the Defendants' Motion for Summary Judgment will be granted in its entirety.


Officer Gwynn and Officer Ryan are employed by the City of Philadelphia Police Department (PPD) as police officers. (Compl. ¶ 13.) On December 15, 2009, Plaintiffs were assigned to the 19th District day shift. (Defs.' Mot. Summ. J., Ex. 1 at 7.) According to a statement given to the Federal Bureau of Investigation (“FBI”) on March 24, 2010, Keishawn Artis (“Artis”) claims that on December 15, 2009, at approximately 3:00 p.m., after leaving his aunt's house located at 209 Gross Street in Philadelphia, he was stopped by Officers Gywnn and Ryan. ( Id., Ex. 2.) Artis states that he was walking with his brother, Leroy Britt (“Britt”), when they were approached by Plaintiffs and asked to stop. ( Id.) They did so, and Plaintiffs immediately began a search of both men, with Officer Ryan searching Britt, and Officer Gwynn searching Artis. ( Id.) Artis states that during the search, Officer Gwynn intentionally grabbed his crotch and back pocket to distract him while Officer Gwynn removed approximately $400 to $600 in cash from his back pocket. ( Id.) Artis claims that he received this money from his employment at Laxton Enterprises Incorporated where he worked in trash removal. ( Id.) After Officer Gwynn finished his search, Artis immediately asked him to return the money to which Officer Gwynn responded that he had not taken any money. ( Id.) When Artis again asked for the money, Plaintiffs departed. ( Id.) Artis stated that he returned home and told a family member that a police officer had stopped him and stolen his Christmas money. ( Id.) The family member called the police, described the incident and reported the allegation of theft. ( Id.)

The phone call by the Artis family member resulted in an investigation being initiated by the Internal Affairs Bureau (“IAB”) (Defs.' Mot. Summ. J., Ex. 3 at 4.) Lt. Palumbo stated in an Affidavit that he and Sgt. Fede were at the 19th District Station when IAB called to alert Capt. Singleton that their investigators would be coming there in a few hours to investigate the complaint made by Artis. ( Id. at 6.) Capt. Singleton was not at the station when IAB called, and Sgt. Fede contacted him and made him aware of the situation. ( Id.) Before Capt. Singleton arrived at the station, Plaintiffs returned from their street duty assignment. ( Id.)

Plaintiffs contend in their Complaint that upon arrival back at the 19th District, they were “held in a room [sic] not allowed to communicate without [sic] others for up to Five [sic] and a half hours. During such time the Plaintiffs were search [sic] and the search included the removal of parts of the Plaintiff [sic] clothing.” (Compl. ¶ 5.) Plaintiffs further assert that Defendant Charles Ramsey order [sic] the Plaintiff to DRP 4 and off street duty because they brought a grievance against the City of Philadelphia for being deprived of their free movement, liberty, and for opposing a [sic] unreasonably [sic] search and seizure by Defendants Michael Kelly, Melvin Singleton, Salvadore Fede and Frank Pulombo.” ( Id. ¶ 8.)

Plaintiffs assert further that they were “intentionally placed in a room at the 9th [sic] Police District,” and “were not permitted by Defendants Michael Kelly, Melvin Singleton, Salvadore Fede and Frank Pulombo to leave the room or to communicate with others, including friends and family, for approximately five and a half hours. Further, in [sic] this same time the Plaintiffs were not permitted ... to use their cell phone [sic] or contact others. Gwynn was held for four and a half hours; Ryan held for five and [sic] half hours.” ( Id. ¶¶ 20–21.) Plaintiffs further aver that they protested the unreasonable search and seizure by filing a grievance with their union, and that in retaliation for filing such, they were ordered to the DRP and removed from street duty for five and one half months. ( Id. ¶ 22–23.) Plaintiffs contend that this deprived them of the opportunity to earn overtime pay for this period of time. ( Id. ¶ 23.)

In Count I, Plaintiffs assert claims under 42 U.S.C. § 1983,5 and under the First, Fourth, and Fourteenth Amendment. Plaintiffs aver that they were:

deprived under color of state law by Defendants ... of such rights as: liberty, freedom from unreasonable seizures and search [sic], right not to be retaliated for engaging in Petition Clause activity, due process and association, such rights are secured under the First, Fourth, and Fourteenth Amendments of the United States Constitution, and without adequate or valid due process of law.

( Id. ¶ 33.)

In Count II, Plaintiffs assert a claim under the Fair Labor and Wage Act, 29 U.S.C. §§ 201 et seq., for the City's failure to pay them for the two and one half hours of overtime pay that they were entitled to when they were held in custody by Defendants. ( Id. ¶¶ 36–37.) In Count III, Plaintiffs bring state law claims for false imprisonment and under Pennsylvania's Minimum Wage Act, 43 P.S. § 333.101 et seq. ( Id. ¶ 42–43.)


Federal Rule of Civil Procedure 56(c) states that summary judgment is proper “if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” See Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir.1991). The Court asks “whether the evidence presents a sufficient disagreement to require submission to the jury or whether ... one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact must be ‘genuine,’ i.e., the evidence must be such ‘that a reasonable jury could return a verdict in favor of the non-moving party.’ Compton v. Nat'l League of Prof'l Baseball Clubs, 995 F.Supp. 554, 561 n. 14 (E.D.Pa.1998).

Summary judgment must be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Once the moving party has produced evidence in support of summary judgment, the non-moving party must go beyond the allegations set forth in its pleadings and counter with evidence that presents “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362–63 (3d Cir.1992). “More than a mere scintilla of evidence in its favor” must be presented by the non-moving party in order to overcome a summary judgment motion. Tziatzios v. United States, 164 F.R.D. 410, 411–12 (E.D.Pa.1996). If the court determines that there are no genuine issues of material fact, then summary judgment will be granted. Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

III. DISCUSSION1. Federal Claims

A. Petition Clause

Plaintiffs assert that they engaged in First Amendment Petition Clause activity” when they filed grievances with their union under a collective bargaining agreement between the union and the City against all Defendants over the December 15, 2009 incident in question. (Compl. ¶ 27.) They claim that the Defendants unlawfully retaliated against them for the filing of the grievances by assigning them to the DRP unit where they were not able to earn the same amount of overtime as they had earned while on street duty. ( Id. ¶ 23.) These claims, however, fail for several reasons.

We first point out that, logically, the sequence of events here does not support Plaintiffs' claims of retaliation. Both Plaintiffs acknowledge that the very next morning after the incident in Capt. Singleton's office that they were assigned to the DRP. Officer Gwynn testified that he was called by Sgt. Fede the next morning at “approximately 7 or 8 a.m.,” and told to report to the DRP. (Pls.' Resp. Mot. Summ. J., Ex. 1 at 94.) Officer Gwynn further stated that he then called Officer Ryan and learned that Officer Ryan was told the same thing. ( Id. at 95.) Neither Plaintiff testified that they first filed a grievance with their union before they were assigned to the DRP. Thus, it follows that none of the Defendants could have unlawfully retaliated against the Plaintiffs by assigning them to the DRP because the assignments occurred before Plaintiffs filed their grievances with the union.

Plaintiffs' retaliation claims also fail because the record indicates that Plaintiffs would have been assigned to the DRP whether or not they filed grievances with their union. Capt. Singleton testified at his deposition that all of the officers...

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