Ickes v. Borough of Bedford

• Decision Date: 09 August 2011
• Docket Number: Civil Action No. 09–37J.
• Citation: 807 F.Supp.2d 306
• Parties: Don Ralph ICKES, Plaintiff, v. BOROUGH OF BEDFORD, Richard Dean Kensinger, Jr., Individually and in his Official Capacity as a Bedford Borough Police Officer, Deputy Troy Nelson, Individually and in his Official Capacity as a Bedford County Sheriff's Deputy, Sheriff C.G. Reichelderfer, Individually and in his Official Capacity as Bedford County Sheriff, and Deputy Luke Burkey, Individually and in his Official Capacity as a Bedford County Sheriff's Deputy, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

807 F.Supp.2d 306

Don Ralph ICKES, Plaintiff,

v.BOROUGH OF BEDFORD, Richard Dean Kensinger, Jr., Individually and in his Official Capacity as a Bedford Borough Police Officer, Deputy Troy Nelson, Individually and in his Official Capacity as a Bedford County Sheriff's Deputy, Sheriff C.G. Reichelderfer, Individually and in his Official Capacity as Bedford County Sheriff, and Deputy Luke Burkey, Individually and in his Official Capacity as a Bedford County Sheriff's Deputy, Defendants.

Civil Action No. 09–37J.

United States District Court, W.D. Pennsylvania.

Aug. 9, 2011.

Stephen D. Wicks, Altoona, PA, for Plaintiff.

Paul D. Krepps, Danielle M. Vugrinovich, Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, PA, Neva L. Stanger, Campbell Durrant Beatty Palombo & Miller, P.C., Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION AND ORDER OF COURT

GIBSON, District Judge.

I. SYNOPSIS

This matter comes before the Court on motions for summary judgment filed by the Defendants on June 1, 2010, and April 11, 2011. ECF Nos. 39, 40 & 84. For the reasons that follow, those motions will be granted.

II. BACKGROUND

Plaintiff Don Ralph Ickes (“Ickes”) arrived at the Bedford County Courthouse at approximately 1:20 P.M. on February 13, 2008. ECF Nos. 43 & 49 at ¶ 1. He was carrying a tape recorder when he entered the facility. Id. at ¶ 2. Ickes intended to conduct legal research in the courthouse library and pick up papers from the Prothonotary's Office relating to a lawsuit in which he was a party. Id. at ¶ 3. After entering the courthouse, Ickes proceeded in the direction of the law library. Id. at ¶ 4. When Ickes approached the law library, Bedford County employees Charlie Roberts (“Roberts”) and Matt Diehl (“Diehl”) told him that he could not enter. Id. at ¶ 5. Ickes started to walk up a ramp to enter a different area of the courthouse, but he stopped after learning from Roberts and Diehl that the ramp would lead him to a restricted area. Id. at ¶ 6.

After speaking with Roberts and Diehl, Ickes walked down a flight of stairs, entered the Prothonotary's Office, and procured the documents that he needed. Id. at ¶¶ 7–8. An employee of the Prothonotary's Office noticed that Ickes was carrying a tape recorder and called the matter to the attention of Deputy Sheriff Luke Burkey (“Burkey”). Id. at ¶ 9. Burkey went directly to the Sheriff's Office and relayed the information about Ickes' tape recorder to Deputy Sheriff Troy Nelson (“Nelson”). Id. at ¶ 10. Sheriff Charwin Reichelderfer (“Reichelderfer”) was quickly made aware of the situation. Id. at ¶ 11. Meanwhile, Ickes left the Prothonotary's Office and entered the Tax Assessment Office with his tape recorder set on the “record” mode. Id. at ¶ 13.

Reichelderfer contacted the Bedford Borough Police Department and reported that Ickes was actively violating Pennsylvania's Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”) [18 Pa. Cons.Stat. § 5701 et seq.]. Id. at ¶ 15. Richard Dean Kinsinger, Jr. (“Kinsinger”),¹ a police officer employed by the Borough of Bedford (“Bedford”), learned from Reichelderfer that Ickes had been seen in the Prothonotary's Office with a tape recorder. Id. at ¶ 18. Kinsinger arrived at the courthouse and asked Burkey to identify Ickes. Id. at ¶ 19. Burkey, who was standing about fifty feet away from Ickes, pointed him out to Kinsinger. Id. at ¶ 20. Kinsinger sought Burkey's assistance before interacting with Ickes, but Burkey advised that he was on “court duty” and could not remain in the area. Id. at ¶ 21. After assuring Kinsinger that he would ask somebody else to help, Burkey spoke with Nelson, who agreed to provide the needed assistance. Id. at ¶¶ 23–24.

Kinsinger approached Ickes inside of the Tax Assessment Office. Id. at ¶ 26. Ickes' tape recorder was set on the “record” mode at the time of the encounter. Id. at ¶ 27. In an attempt to avoid disruptions within the Tax Assessment Office, Kinsinger asked Ickes to step outside. Id. at ¶ 28. Ickes followed Kinsinger out into a hallway. Id. at ¶ 29.

Kinsinger suggested to Ickes that the recording of conversations within the courthouse constituted a violation of the Wiretap Act.² Id. at ¶ 30. Ickes expressed the view that his use of the tape recorder was not illegal. Id. at ¶ 32. Kinsinger verbally refuted Ickes' contention that his conduct was lawful. Id. at ¶ 33. The tape recorder continued to operate during the course of this conversation. Id. at ¶ 35. Ickes asked whether he was under arrest. Id. at ¶ 36. Kinsinger responded by informing Ickes that he could be placed under arrest if he did not turn off the tape recorder. Id. at ¶ 37. Kinsinger repeatedly told Ickes that he needed to turn the tape recorder off. Id. at ¶ 38. Ickes asked whether Kinsinger wanted to discuss the matter. Id. at ¶ 41. At that point, Kinsinger told Ickes that he was under arrest.³ Id. at ¶ 42.

Ickes started to move away from Kinsinger. Id. at ¶ 43. Kinsinger responded by placing his hand on Ickes' left forearm.⁴ Id. at ¶ 44. Ickes pulled his arms close to his torso. Id. at ¶ 45. Kinsinger reiterated that Ickes was under arrest. Id. at ¶ 46. Ickes resisted Kinsinger's request that he put his hands behind his back and tried to prevent Kinsinger from turning off the tape recorder. Id. at ¶ 47. While Kinsinger attempted to complete the arrest, Ickes twisted his body in an effort to get away. Id. at ¶ 48, Kinsinger warned Ickes that he would be tasered ⁵ if he continued to resist the arrest. Id. at ¶ 61; ECF No. 52 at ¶ 24. Ickes replied, “Go ahead and taser me.” ECF Nos. 43 & 49 at ¶ 62. He also asked Kinsinger to justify the arrest by identifying the source of his “probable cause.” Id. at 64. When Ickes tried to get away again, Kinsinger deployed the taser. Id. at ¶¶ 65–66; ECF No. 52 at ¶ 26. One taser dart hit Ickes' left shoulder, while the other one impacted his leather jacket. ECF Nos. 43 & 49 at ¶ 70. Ickes experienced a “mild shock,” causing him to drop his tape recorder and a manila folder on the floor. Id. at ¶¶ 68–69. He tried to retreat from Kinsinger's presence. Id. at ¶ 73. Kinsinger deployed the taser again, and Ickes fell to the floor. Id. at ¶¶ 74–75. At some point, Nelson arrived on the scene and provided assistance. Id. at ¶¶ 76, 79. Ickes was placed in handcuffs, searched, and taken into custody. Id. at ¶ 79. Two folding knives were found in his pocket. Id. at ¶ 80. The taser darts were removed from Ickes' body. Id. at 81. The tape recorder, manila folder and folding knives were collected and retained for evidentiary purposes. Id.

Kinsinger transported Ickes to the Bedford Borough Police Station. Id. at ¶ 82. Ickes was charged with disorderly conduct,⁶ resisting arrest, ⁷ and violations of the Wiretap Act.⁸ Id. at ¶ 84. Although the charges arising under the Wiretap Act were dismissed by a District Justice, they were ultimately refiled by the District Attorney. Id. at ¶ 85. Ickes commenced this action against Kinsinger and Bedford on February 17, 2009, alleging violations of the Fourth and Fourteenth Amendments to the United States Constitution, ECF No. 1. Meanwhile, the criminal charges against Ickes proceeded in the Pennsylvania courts. The Court of Common Pleas of Bedford County dismissed the charges arising under the Wiretap Act in an order dated May 11, 2009. ECF Nos. 43 & 49 at ¶ 86. Ickes filed an amended complaint in this action on August 7, 2009, adding Nelson, Reichelderfer and Burkey as defendants. ECF No. 15. After a bench trial conducted in the Court of Common Pleas during the fall of 2009, Ickes was convicted of disorderly conduct.⁹ ECF Nos. 43 & 49 at ¶ 87.

Kinsinger and Bedford filed a motion for summary judgment on June 1, 2010. ECF No. 39. That same day, a separate motion for summary judgment was filed by Nelson, Reichelderfer and Burkey. ECF No. 40. On June 2, 2010, Ickes sought leave to amend his complaint, claiming that the Defendants had violated his rights under the First Amendment. ECF No. 51. Finding Ickes' attempt to assert First Amendment claims to be “extremely untimely,” the Court denied the motion for leave to amend in a memorandum opinion and order dated December 3, 2010. ECF No. 76 at 5. Kinsinger and Bedford filed a supplemental motion for summary judgment on April 11, 2011. ECF No. 84. The motions for summary judgment filed by the Defendants are the subject of this memorandum opinion. ECF Nos. 39, 40 & 84.

III. SUMMARY JUDGMENT STANDARDS

Summary judgment may only be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. Fed. R. Civ. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary judgment 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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Township, 478 F.3d 144, 147 (3d Cir.2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir.2004). A dispute is “genuine” if the evidence is such that a reasonable trier of fact could return a verdict for the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005). Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the nonmoving party's burden of proof. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Once the moving party satisfies...