Verdier v. Darby Borough

• Decision Date: 20 June 2011
• Docket Number: Civil Action No. 10–377.
• Parties: Gunser VERDIER v. Darby BOROUGH, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

796 F.Supp.2d 606

Gunser VERDIER

v.Darby BOROUGH, et al.

Civil Action No. 10–377.

United States District Court, E.D. Pennsylvania.

June 20, 2011.

Valerie A. Hibbert, Lansdowne, PA, Kenneth S. Robinson, Philadelphia, PA, for Gunser Verdier.

Robert P. Didomenicis, Holsten & Associates, Media, PA, for Darby Borough, et al.

MEMORANDUM RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BAYLSON, District Judge.I. Introduction

This action arises out of the detention of Plaintiff Gunser Verdier during a misfortunate meal break at night on January 31, 2008, by police officers of Darby Borough, Pennsylvania. Plaintiff filed this action for money damages pursuant to 42 U.S.C. § 1983, the Fourth and Fourteenth Amendments of the United States Constitution, and Pennsylvania common law, against Defendants Darby Borough, Officer Claude Simpkins (“Simpkins”), Officer Pete Ray (“Ray”), Officer Brian Evans (“Evans”), and Detective Brian Pitts (“Pitts”).¹ In his Complaint filed January 28, 2010 (ECF No. 1), Plaintiff asserted claims against Darby Borough for illegal seizure (Count I) and illegal search (Count II), both of which Plaintiff has since agreed to dismiss.² Plaintiff also raised claims against Simpkins, Ray, Evans, and Pitts (collectively, “Defendants” or “the Officers”) for deprivation of Plaintiff's constitutional rights under the Fourth and Fourteenth Amendments (Count III), including his right to be secure in his person and property, his right to be free from excessive use of force, and his procedural and substantive due process rights. Plaintiff also set forth a claim against Pitts for supervisory liability (Count IV), which he has withdrawn.³ Finally, Plaintiff brought common law claims against all of the Officers for assault (Count V) and battery (Count VI), and a claim against Simpkins, Evans, and Pitts for false imprisonment (Count VII).

Presently before the Court is Defendants' Motion for Summary Judgment (ECF No. 19) and Revised Memorandum of Law (ECF No. 20) on the remaining four counts, Counts III, V, VI, and VI. Following a careful review of the record, and viewing the evidence in the light most favorable to Plaintiff, the Court will grant in part and deny in part Defendants' Motion for Summary Judgment. Specifically, the Court will grant the motion for summary judgment as to all claims against Simpkins and Pitts. The Court will deny the motion for summary judgment as to the excessive force (Count III), assault (Count V), and battery (Count VI) claims against Evans, and grant the motion as to all other claims against Evans. The Court will deny the motion for summary judgment as to the claim for unlawful search of Plaintiff's car against Ray (Count III), and grant the motion as to all other claims against Ray.

II. Factual and Procedural History

The Court sets forth the events giving rise to this action in light of its obligation under Fed.R.Civ.P. 56 to consider the facts in the light most favorable to Plaintiff. The Court also provides the Officers' accounts to the extent they raise additional relevant facts and genuine disputes of material fact that prevent resolution of the claims at the summary judgment stage.

A. Plaintiff's Account

On the evening of January 31, 2008, Plaintiff Gunser Verdier was working as a fleet service agent for U.S. Airways at the Philadelphia airport. Verdier Dep. 9:17–10:17; 21:14–18, Aug. 5, 2010 (Ex. D–4).⁴ During his lunch break, Plaintiff drove to Pizza Paradise on Wycombe Avenue in Yeadon and bought a sandwich. Id. at 21:24–22:21. Plaintiff pulled over on the 1300 block of Wycombe Avenue, approximately half a mile to a mile from Pizza Paradise, to eat his sandwich before returning to work at the airport. Id. at 22:22–23:12. Plaintiff sat alone in his blue '94 Honda Civic, eating his sandwich, at approximately 9:30 p.m. Id. at 21:14–18; 23:13–18.

Around that time, Officer Simpkins pulled up in a marked SUV behind Plaintiff's vehicle, approached Plaintiff's car on the driver's side, and asked for Plaintiff's license and registration. Id. at 23:19–24:9.⁵ Plaintiff asked two or three times, “what did I do,” and Simpkins persisted in requesting the identification. Id. at 23:19–24:17. Simpkins, who is black, was the only officer on the scene at that time. Id. at 24:16–25. Plaintiff gave Simpkins his driver's license and reached above the visor to get his registration and insurance. Id. at 25:2–15. Simpkins shined his flashlight into the car and asked about the badge hanging around the rearview mirror. Id. at 25:2–15. Plaintiff had a badge on a metal strand from Plaintiff's previous job as a security guard for Leonard Security Company, which Plaintiff had bought at a uniform equipment store at his employer's recommendation. Id. at 13:5–14:23; 18:25–19:22. Plaintiff told Simpkins that he was a certified security officer and showed the police officer his Act 235 card, which identified Plaintiff as a security guard with lethal weapons training (the “identification card”). Id. at 13:5–10; 15:20–16:5; 25:16–22.

Simpkins told Plaintiff to put his hands on the car window, and Plaintiff put his hands on the window or door. Id. at 26:12–27:8. Other officers arrived on the scene, an officer opened the car door, and Plaintiff was dragged out of the car and placed against the vehicle near the rear wheel. Id. at 27:9–28:6. Plaintiff was on his feet, laying against the car with his forehand and his hands on the car. Id. at 28:7–29:9. Plaintiff did not know who removed him from the car and could not turn to see who placed him against the car, but thought only one officer did so. Id. at 29:10–17; 30:12–22. Plaintiff was asked if he had a gun, to which he responded that he had a gun at home. Id. at 30:23–31:10. An officer patted down Plaintiff, taking his wallet and putting it on top of the car roof, and taking items like change from his pockets and putting them on the ground. Id. at 31:17–32:10. The officers took Plaintiff from the car with force, shook him hard and held him down against the car for five or ten minutes. Id. at 32:14–33:14. Plaintiff heard somebody playing with “some type of metal” and the officers saying that if Plaintiff made a move, “you can do anything you want to him.” Id. at 32:21–33:5; 34:12–35:12. Plaintiff was not facing the officers and never saw anyone with a gun, baton or Taser. Id. at 35:13–25. One officer, who was white, searched “all over” Plaintiff's car. Id. at 30:23–31:10.

Detective Pitts, the last officer to talk to Plaintiff, did not touch Plaintiff. Id. at 37:2–18. Pitts took Plaintiff's badge and identification card. Id. at 37:19–25.⁶ Plaintiff was told that the police were taking his badge and identification card and that if he “obtained employment in the security field, [he] should come to them with confirmation of [his] employment in order for them to return” the property. Pl.'s Statement at 2. Sometime after the incident, Plaintiff and his attorney went to the Darby Borough Police Department to retrieve his badge and identification card. Id. at 39:24–40:13. Lieutenant Guy informed them that the police were investigating and they could not return the property. Id. at 40:25–41:14. In June 2008, the badge and identification card were returned after Plaintiff's attorney contacted the police department. Id. at 39:21–42:18.

Between February 19, 2008 and July 15, 2008, Plaintiff was treated for nightmares relating to his detention. Id. at 45:23–48:21. Plaintiff has not had nightmares since concluding treatment in July 2008. Id. at 48:22–25.

B. The Officers' Accounts

1. Officer Simpkins

Prior to his encounter with Plaintiff, Simpkins was sitting in his vehicle at the cross street of Wycombe Avenue and MacDade Boulevard, near a gas station and a Chinese store, when a man and a woman knocked on his car window. Simpkins Dep. 6:22–24; 8:6–9:16, Dec. 17, 2010 (Ex. to Defs.' Revised Mem. of Law). The two individuals told Simpkins that they were uncomfortable and concerned because a black male was sitting in a dark-colored, small vehicle in the middle of Wycombe Avenue in front of their residence for several hours, and was speaking to passersby. Id. at 6:11–7:11; 9:7–24; 29:6–30:7. Simpkins did not know the two individuals. Id. at 29:6–30:7. Simpkins drove down Wycombe Avenue, pulled behind the vehicle in question, and observed an African–American male eating a sandwich in the driver's seat of the parked car, and a badge hanging from the rear view mirror. Id. at 10:12–11:8. Simpkins did not observe the driver speaking to anyone or using any surveillance equipment. Id. at 12:2–10. Plaintiff was in a residential neighborhood where vehicles regularly parked on the street. Id. at 27:24–28:7.

Simpkins double-parked, because there were no spots behind Plaintiff, activated his safety siren, went to Plaintiff's driver's side window and asked for identification, and Plaintiff rolled down his window. Id. at 12:25–13:23. Simpkins observed a male in the car wearing an airport jumpsuit, a sandwich and maybe a beverage on the passenger seat, and a badge hanging from the rearview mirror, on which Simpkins could see numbers. Id. at 13:24–14:10; 15:17–24. Simpkins asked Plaintiff why he was sitting there and if he lived in the area, to which Plaintiff responded that he was eating his sandwich and he lived around the corner. Id. at 14:21–15:7; 27:12–23. Simpkins further testified that Plaintiff told him he was a police officer at the airport, and that Plaintiff said he was sitting in his car for an hour or two. Id. at 20:11–23; 26:4–19.

Simpkins testified that other officers arrived and talked to Plaintiff but there was a communication barrier when Evans asked him to exit the vehicle. Id. at 18:3–19:9. Plaintiff refused to exit, and Evans removed Plaintiff from the car. Id. at 18:14–19:17. Simpkins testified he may have used his flashlight to see inside the vehicle. Id. at 22:12–16. Simpkins said he believed the vehicle was searched by Officer Evans, but he could not...