Pellegrino v. U.S. of Am. Transp. Sec. Admin.

• Citation: 855 F.Supp.2d 343
• Decision Date: 28 February 2012
• Docket Number: Civil Action No. 09–5505.
• Parties: Nadine PELLEGRINO and Harry Waldman, Plaintiffs, v. UNITED STATES of America TRANSPORTATION SECURITY ADMINISTRATION, et. al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

855 F.Supp.2d 343

Nadine PELLEGRINO and Harry Waldman, Plaintiffs,

v.UNITED STATES of America TRANSPORTATION SECURITY ADMINISTRATION, et. al., Defendants.

Civil Action No. 09–5505.

United States District Court, E.D. Pennsylvania.

Feb. 28, 2012.

Nadine Pellegrino, Boca Raton, FL, pro se.

Harry Waldman, Villanova, PA, pro se.

Annetta Foster Givhan, U.S. Attorney's Office, Philadelphia, PA, for Defendants.

MEMORANDUM AND ORDER

JOYNER, Chief Judge.

Before this Court are Defendants' Motion to Dismiss the Third Amended Complaint (Doc. No. 40), Plaintiff's Response in opposition thereto (Doc. No. 63), Defendants' Reply (Doc. No. 66) and Plaintiff's Sur–Reply (Doc. No. 76). For the reasons set forth in this Memorandum, the Motion to Dismiss is granted in part and denied in part.

FACTUAL BACKGROUND

This case centers on what should have been a swift and routine airport security screening. Instead, the interactions between the parties escalated into a criminal prosecution that took nearly two years to resolve in the Philadelphia Municipal Court and this subsequent civil action that has been litigated in our Court for even longer. The Third Amended Complaint (hereinafter “Complaint”) provides an incredibly detailed account of the events underlying this action, which we accept as true for the purposes of resolving the instant Motion. See Vallies v. Sky Bank, 432 F.3d 493, 493 (3d Cir.2006).

On July 29, 2006, Plaintiff Nadine Pellegrino (“Pellegrino”) and her husband, Plaintiff Harry Waldman (“Waldman”) embarked on a trip to their home in Florida. Both are business consultants, among other professional roles, and frequently travel by air. At around 7 pm, Plaintiffs arrived at the security checkpoint at the Philadelphia International Airport. After passing through the metal detector, Pellegrino was detained in a public detention pen while a male Transportation Security Administration (“TSA”) Transportation Security Officer (“TSO”) began to conduct a more in-depth screening of her bags. Concerned about how the TSO was rough-handling her luggage and his disrespectful attitude, Pellegrino requested a private search. She claims that, in her mind, a private search “did not mean a behind-closed-doors search; it meant a female to search her bags.” Compl. at 7.

Several minutes later, Defendant TSA TSO Nuyriah Abdul–Malik (“Abdul–Malik”) arrived at the checkpoint to complete the screening process; she was already wearing gloves when she approached Pellegrino's bags. Believing that TSA screening procedures require TSOs to change their gloves upon request by an individual, Pellegrino immediately requested Abdul–Malik change her gloves before touching Pellegrino's belongings. Abdul–Malik complied, but in the process physically contaminated the new set. Pellegrino describes this request as the catalyst for Abdul–Malik's “visibly inappropriate, observably unwarranted venomous nonverbal animosity” toward her. Id. at 8.

Abdul–Malik transported Pellegrino's bags into a private screening room near the checkpoint.¹ After TSO Abdul–Malik disappeared from sight with Pellegrino's belongings, Pellegrino remained standing in the pen for several minutes, without any information from the TSO about what was happening next. Eventually, Pellegrino was directed to accompany Abdul–Malik in the screening room. Defendants TSO Denice Kissinger (“Kissinger”) and TSA Supervisor TSO Laura Labbee (“Labbee”) arrived to assist in the private screening, closing the door behind them.

The TSOs began a personal screening of Pellegrino's body. Pellegrino was directed to hold her arms out at a 90 degree angle and stand with her legs apart. Kissinger swabbed both the front and back of Pellegrino's shirt and skirt with a wand, then left the closet to obtain Explosive Test Detection (ETD) results.

TSO Abdul–Malik examined the contents of Pellegrino's belongings. She counted all of the currency and coins; examined the front and back of each of Pellegrino's library, insurance, credit and membership cards; looked at Pellegrino's cell phone data; read her personal notes; “rifl[ed] through” her business papers; and opened and smelled her cosmetics, hand sanitizer, mints, pen and lipstick. Id. at 13. Abdul–Malik left open the lids to the mints and hand sanitizer containers, resulting in their contents being dispersed throughout her handbag, rendered unusable, and further damaging her property. Pellegrino also alleges that Abdul–Malik permanently damaged her personal property while “punching, ramming, jamming and forcing examined items back into the tote in disrespectful ways.” Id. In particular, when Abdul–Malik attempted to close Pellegrino's rolling tote bag, Abdul–Malik used her knee and body weight to compress the bags contents while forcibly yanking on the zipper pull and damaged the bag itself. Abdul–Malik then placed the damaged rolling tote bag under the search table and pushed it to the far back corner. Labbee watched this damage take place but did not intervene.

While the screening took place, Pellegrino informed the TSOs that she intended to report their mistreatment to TSA superiors. Abdul–Malik twice threatened Pellegrino with arrest for speaking out about abusive conduct by the agents. Speaking directly to Labbee and in front of Pellegrino, Abdul–Malik insisted that they call the Philadelphia police.

Though Pellegrino voiced her intent to report the TSOs, she did not say or do anything to interfere with or attempt to stop the screening. Nothing prohibited was found in Pellegrino's luggage, and Labbee told Pellegrino that she was free to pack her things and proceed from the screening area. Pellegrino decided to repack her belongings in public and proceeded to remove her items one by one to a search table outside the private screening room. In the process, she tossed some of these items in that direction after first making sure no one was in the immediate vicinity.

Labbee and Abdul–Malik remained in the private screening room throughout this process. During this time, one or both of the TSOs disposed of three of Pellegrino's items into a trash can inside the private screening room without her knowledge or permission. When Pellegrino attempted to remove the final item—her rolling tote bag—Abdul–Malik physically blocked Pellegrino's access. Pellegrino was forced to get down on her arthritic hands and knees and crawl under the table to grab hold of the bag's handle. After several attempts, Pellegrino successfully grabbed the bag and wheeled it out of the private screening room. At no time did the rolling tote bag, or any of Pellegrino's possessions, come into physical contact with Abdul–Malik, Labbee or any other person.

While Pellegrino repacked her belongings at the checkpoint search table, TSO Labbee exited the screening room, approached her, and informed her that she was being re-detained.² Labbee did not provide a reason for the re-detention, and also denied any knowledge of the whereabouts of Pellegrino's missing property. Labbee directed Pellegrino that she could not touch her belongings or move from her current position at the search table. Labbee also confiscated Pellegrino's driver's license.³

About twenty minutes passed from Plaintiffs' arrival at the checkpoint until Pellegrino's re-detention following the private screening. Then, from 7:20–7:35pm, TSA Federal Security Manager Richard Rowe, TSA Aviation Security Inspector Osbourne Shepherd, U.S. Airways representative Sari Salameh and Philadelphia Police Department Officers were all summoned to and arrived at the checkpoint area. After their arrival at the checkpoint, several unidentified TSOs and police officers stood around, conversing with one another and with TSOs Abdul–Malik, Labbee, and Kissinger. During this time, Waldman was instructed to leave the immediate area of the investigation and Pellegrino remained at the checkpoint search table. Neither was given any information about what was happening.

Plaintiffs later found out that TSOs Labbee and Malik had accused Pellegrino of assault. Pellegrino alleges the two agents devised a plan together to make these false allegations during the time that Pellegrino walked in and out of the private screening room, removing her luggage. Abdul–Malik lied to the police about the events that took place during the private screening and accused Pellegrino of striking the agent's left calf and ankle with a suitcase. Labbee then also falsely accused Pellegrino of assault, claiming Pellegrino struck her in the stomach with the end of a large suitcase and caused her to fall into the screening room door. Although TSO Kissinger was not in the screening room at the time of the alleged assaults, Kissinger voluntarily lied, told the police that she witnessed the incident, and confirmed the other agents' accounts.

Abdul–Malik and Labbee insisted on pressing charges against Pellegrino. As a result, a Philadelphia police officer frisked Pellegrino in the private screening area at the checkpoint. The officer then arrested Pellegrino, placed her wrists in handcuffs behind her back and transported her out of the airport, with fellow officers escorting, in a humiliating “public spectacle.” Id. at 21. TSA officials had detained Pellegrino for about an hour before the arrest took place.

After her arrest, Pellegrino maintains that she was held “in horrific conditions for up to roughly 18 hours.” Id. at 23. During this time, Airport Division Officer Michael Browne drove Defendants TSOs Labbee, Abdul–Malik and Kissinger to the Philadelphia Police Department Southwest Division Station, where Detective William Campbell interviewed them. Labbee and Abdul–Malik filed criminal complaints against Pellegrino. Eventually, Waldman posted bail for his wife, though Plaintiffs do not indicate the amount or at what time it was paid. The District Attorney's Office pursued felony charges for aggravated assault and several misdemeanor charges: two counts reckless endangerment of a...