Schwab v. Wood, Civ. A. No. 88-657 MMS.

• Decision Date: 12 June 1991
• Docket Number: Civ. A. No. 88-657 MMS.
• Citation: 767 F. Supp. 574
• Parties: Otto K. SCHWAB, Plaintiff, v. Mark A. WOOD, Katherine Beck and Richard Dennis, Defendants.
• Court: U.S. District Court — District of Delaware

767 F. Supp. 574

Otto K. SCHWAB, Plaintiff, v. Mark A. WOOD, Katherine Beck and Richard Dennis, Defendants.

Civ. A. No. 88-657 MMS.

United States District Court, D. Delaware.

June 12, 1991.

COPYRIGHT MATERIAL OMITTED

Douglas A. Shachtman of Douglas A. Shachtman & Associates, Wilmington, Del., for plaintiff.

David A. White, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for defendants.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

The plaintiff, Otto Karl Schwab, filed a complaint pursuant to 42 U.S.C. § 1983 against three Delaware State troopers in their individual capacity.¹ The complaint contains allegations of four civil rights violations: false arrest, excessive force during the course of the arrest, an illegal search and seizure of property following the arrest and malicious prosecution. In addition, the complaint contains two pendent state law claims for assault and battery and malicious prosecution. The court's jurisdiction rests upon 28 U.S.C. § 1343. The litigants have filed cross motions for summary judgment which will be granted in part and denied in part.

I. Factual Background

The plaintiff is a long distance truck driver, residing in Florida. On the night of November 28, 1986, Schwab arrived at the Delaware Truck Plaza on Route 13, south of Wilmington, at approximately 7:00 p.m. Schwab ate and rested at the truck plaza until approximately 11:00 p.m. At that time, Schwab decided to go to sleep in the sleeping compartment behind the driver's seat of his tractor trailer. He set his alarm clock for 3:00 a.m. both to wake up another truck driver, Robert Mote, and enable himself to wash some clothes at the laundry facilities of the truck plaza.

At three o'clock, Schwab awoke, left the sleeping compartment behind the driver's seat, lit a cigarette, switched on the overhead light in the driving compartment of his truck, and began to put on his clothing. At that moment, defendant Mark Wood, a Delaware State trooper stationed out of State Police Troop 9, arrived in front of Schwab's tractor trailer in an unmarked police car. Wood was patrolling the area near the truck plaza because of complaints concerning the high number of prostitutes who ply their wares among truck drivers resting at the truck plaza.

When Schwab put on the overhead light, Wood observed him putting on his clothes and suspected that Schwab might be with a prostitute. After parking his car about twenty yards in front of Schwab's truck, Wood trained his high power mag light into the cab of Schwab's tractor trailer. Wood could see Schwab's face and determine that he was a white male; however, Wood did not see anyone else in the cab.

While the mag light was being directed into the cab, Schwab could neither identify Wood's vehicle as a police car nor see who was in the vehicle. Schwab attempted to find out who had shone the mag light into his cab by putting on his headlights and then the spotlight of his truck. However, Schwab was not able to identify Wood as a police officer. Wood later admitted that, given the circumstance, Schwab could not have determined the identity of anyone in Wood's car until its occupant exited the vehicle.

After a moment or two, Wood was satisfied that there was no one else in the cab and that there was no other reason to investigate. Wood drove away and circled the parking lot. Schwab again fixed his spotlight on Wood's car in another attempt to determine his identity. This action brought Wood back to Schwab's truck. Wood circled back and parked about five to ten feet in front of Schwab's truck, thereby blocking Schwab from driving away.

At this point, Robert Mote was on his way to Schwab's truck. Wood asked Mote to ask Schwab if anything was wrong. Mote inquired on behalf of Wood, and then relayed the message that nothing was amiss, that Schwab was a truck driver and that he was about to do his laundry. Wood then asked Mote to ask Schwab to step down from his truck and produce identification. Mote relayed this second message. A few moments later, Wood began to communicate directly with Schwab.

Wood's deposition testimony is to the effect that, after his initial investigation with the mag light and before his direct communication with Schwab, he did not suspect that Schwab was engaged in criminal activity. Rather, Wood expressed a vague suspicion of criminal activity. See Dkt. 51A at p. A62. Wood testified that he thought (a) there might be something wrong with Schwab, (b) there might be someone in the cab holding Schwab hostage and that Schwab was trying to communicate to him, or (c) Schwab might have some sort of message for Wood. Wood also felt that Schwab's actions were in some way "wrong" because by shining his spotlight on Wood's car, Schwab heightened Wood's visibility in a place where, in Wood's view, illegal activity takes place with some frequency. Even after Wood commenced direct communications with Schwab, nothing Schwab said provided Wood with any grounds to believe that Schwab himself was involved in criminal activity. See Dkt. 51A at p. A50 to A60. In his deposition testimony, Wood also described himself as "curious" as to why Schwab fixed his spotlight on him a second time. Dkt. 51A at p. A60.

Wood requested that Schwab turn over his driver's license, registration and any other identification. Schwab asked for a reason and said that he had done nothing wrong. Thereafter, Schwab called down to Mote, suggesting that they go off together for coffee. The ensuing events are subject to some dispute. Schwab recalls Wood as replying that Schwab wasn't going anywhere and pulling his car closer to the front of Schwab's truck in order to prevent Schwab's departure. Wood states that he did not move his vehicle after his initial exit.

When Wood repeated his requests to Schwab, Schwab told Wood that he did not have any business in the parking lot and that he had a right not to produce identification. Both parties agree Schwab refused to get out of the truck or produce identification unless Wood gave him an adequate reason. Wood recalls five requests to Schwab that he produce identification and get out of the truck; however, Wood never told Schwab why he wanted to question him.

In his deposition testimony, Wood claimed that he continued to be concerned that Schwab might be held hostage or in some other form of danger. Schwab's recollection was that when he said he would not produce identification unless Wood told why he wanted it, and that he had constitutional rights, Wood responded "in the state of Delaware, you don't have any f____ing rights."

After ten minutes of this battle of wills, Wood no longer felt comfortable being alone in the Truck Plaza. He requested backup because of what he viewed as Schwab's stubbornness and refusal to cooperate.

Delaware State Trooper Katherine Beck² arrived about one minute after receiving Wood's request for assistance. According to Beck's testimony, Wood informed Beck that Schwab had spotlighted his car, refused to produce identification or to exit the truck, and that he was using profanity. Beck claimed that she could hear Schwab still using profane language. Also according to Beck's testimony, upon the arrival of Delaware State Trooper Richard Dennis, Wood told both Beck and Dennis that Wood believed there was a prostitute in the truck due to the fact that Schwab was seen putting on his clothes in an area of high concentration of prostitutes. Dkt. 49A at pp. 71, 75.

At this point, Beck climbed up on the driver's side of the truck, and Dennis went around to cover the passenger door. Beck claims that Schwab continued to use profane language. In order to coax Schwab to come out of the truck, Beck used her blackjack to hit the window several times. Beck's intention was to make Schwab believe that she would break the window if Schwab did not exit the truck. She was successful. Fearing that Beck would break the window, Schwab unlocked and opened the door of his truck.

What happened next is subject to further dispute. Beck maintains that Schwab then jumped down from the truck to the ground, Dkt. 49A at p. 66, a distance of about four and one-half feet. Schwab contends that upon his opening the door, Wood grabbed Schwab by the ankles and pulled him out of the cab and onto the dirt ground. Wood recalls that Schwab still refused to come out of the truck, and that after pulling on Schwab's ankles, both men tumbled to the ground. In the police report and force report,³ Wood reported that Schwab was pulled out of the truck with each of the three officers grabbing a part of Schwab's body. See Dkt. 51A at p. A-82 and p. A-84. Dennis claims that he was on the other side of the truck all throughout this episode.

Schwab's head struck the ground. Wood recalls that a brief struggle occurred while Schwab was being handcuffed. In his opening brief (Dkt. 51), Schwab asserts that Beck hit him with her blackjack and then Wood handcuffed him; however Schwab's deposition testimony is vague as to when the alleged blackjacking took place. Schwab also contends that Wood sat on top of him, poking him and asking Mote, "What kind of f____ing foreigner is this?"⁴ When Mote asked what Wood was going to do to Schwab, Schwab recalls Wood's answer as "You better f____ing shut your mouth or you'll end up the same way." Schwab was unable to observe whether Dennis was present while he was being handcuffed or during the alleged hitting. Schwab was then placed into the passenger seat of Wood's car.

Schwab recalls blood running down his face, a condition denied by the officers. However, Wood does recall repeatedly asking Schwab if he wanted medical attention when Schwab complained of a headache.

After Schwab was placed in the police car, Dennis, Beck and possibly Wood then searched Schwab's truck and found no one else in the cab. However, they did come across a thirteen inch knife lying exposed on the floorboard near the center console of the cab.

Wood drove Schwab to State...