Dixon v. Schweizer

ANTHONY DIXON, Plaintiff, v. OFFICER SCOTT SCHWEIZER, OFFICER ERIK PROSS,OFFICER SZELAGOWSKI, CITY OF PHILADELPHIA,JOHN/JANE DOES 1-10 Defendants.

CIVIL ACTION NO. 18-5403

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

August 11, 2020

DuBois, J.

MEMORANDUM

I. INTRODUCTION

This case arises out of the arrest of plaintiff, Anthony Dixon, as part of a narcotics investigation conducted by defendant officers Scott Schweizer, Erik Pross, and Michael Szelagowski on January 19, 2018. Plaintiff asserts claims for violations of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments under 42 U.S.C. § 1983 and violations of Pennsylvania law. Plaintiff also asserts a municipal liability claim under 42 U.S.C. § 1983 against the City of Philadelphia ("the City"). Presently before the Court is defendants' Motion for Summary Judgment. For the reasons that follow, the Motion is granted in part and denied in part.

II. BACKGROUND¹

A. Investigation and Arrest of Plaintiff

On January 19, 2018, as part of a narcotics investigation, defendant officers ScottSchweizer and Erik Pross set up surveillance on the 3000 block of Ella Street, Philadelphia, in an unmarked vehicle. Defs.' Statement Material Facts ("Defs.' SMF") ¶ 1. As part of this investigation, defendant officer Michael Szelagowski acted as one of several backup officers. Id. ¶ 2. The neighborhood in which the investigation was conducted is a high-crime area, in which open-air drug sales often take place. Id. ¶ 3.

Officers reported observing plaintiff, Anthony Dixon, standing on the East side of the 3000 block of Ella Street with another individual who was later identified as Luis Navarro. Defs.' Mot. Summ. J. ("Defs.' Mot.") Ex. D 1. It is undisputed that plaintiff was standing a foot and a half away from Navarro and having a conversation with him. Defs.' SMF ¶¶ 6, 7. Schweizer testified that he heard plaintiff and Navarro calling out "dope," "rock," and "powder," which refer to heroin, crack cocaine, and powder cocaine. Id. ¶ 9. Plaintiff disputes this testimony, and testified that he never heard Navarro call out those words. Pl.'s Resp. Defs.' SMF. ¶ 9; Dixon Dep. 97:4-8.

Schweizer observed three individuals—Anthony Waskovich, Keith Torres, and Robert Ortiz—each separately approach Navarro, hand Navarro money, and receive an item from plaintiff that plaintiff retrieved from a green box in his left jacket pocket. Defs.' Mot. Ex. D 1; Schweizer Dep. 48:9-49:11, 54:2-12, 70:8-17. Schweizer testified that Waskovich also received a bag from Navarro that Navarro retrieved from a nearby lot. Schweizer Dep. 54:9-12. Schweizer observed two other individuals—Angel Cruz and Alyssa Wegner—approach Navarro, hand Navarro money, and receive a bag that Navarro had retrieved from the lot. Defs.' Mot. Ex. D 1-2.² In total, Schweizer observed Navarro enter and return from the lot three times. Defs.'SMF ¶ 10. Waskovich, Torres, Ortiz, Cruz, and Wegner were each stopped by backup officers who recovered narcotics from them. Defs.' SMF. ¶ 13. Powder and crack cocaine were later recovered from the lot. Id. ¶ 14.

Plaintiff again disputes Schweizer's version of events. Plaintiff testified that he did not see Navarro accept money from or hand any objects to any individual while standing next to him. Dixon Dep. 98:8-19. According to plaintiff, he did not receive any money from or hand any objects to any individual. Id. at 98:23-99:4.

After observing the alleged transactions, Schweizer called backup officers to the area to stop Dixon and Navarro. Defs.' Mot. Ex. D 2. Szelagowski testified that he and his partner stopped Dixon and Navarro. Szelagowski Dep. 21:19-22:6. He stated that he handcuffed plaintiff and recovered a green "Newport box from his left jacket pocket," in which narcotics were found. Id. at 22:3-8. The Investigation Report states that the box contained 14 "clear zip lock packets" each containing a blue glassine packet containing a "white powder substance" and twenty-seven plastic containers containing a "white chunky substance." Defs.' Mot. Ex. D 2. Plaintiff disputes Szelagowski's testimony, and testified that he had no drugs on his person. Dixon Dep. 61:18-20.

Plaintiff also testified that, while attempting to comply with an officer's order to get on the ground, he was tackled. Dixon Dep. 36:3-18. Plaintiff could not identify by name the officer who allegedly tackled him, but described him as the "taller officer" and stated that he was the same officer who handcuffed him. Id. at 36:8-12, 42:6-11. Szelagowski disputes plaintiff's version of events and testified that he did not see any officer tackle plaintiff. Szelagowski Dep. 23:17-24:24.

Pross testified that, while in the unmarked vehicle with Schweizer, he acted as a lookoutbut did not observe any of the alleged narcotics sales. Pross Dep. 14:20-15:10. Additionally, he conducted the field testing of the narcotics recovered in the investigation. Id. at 20:8-19.

On March 12, 2018, Navarro pled guilty to the charges of possession with intent to deliver a controlled substance stemming from his arrest on January 19, 2018. Defs.' SMF. ¶ 20. All criminal charges against plaintiff were dismissed on November 2, 2018. Dixon Dep. 74:12-75:5.³

B. Defendant Officer Schweizer's Disciplinary History

Schweizer was hired as an officer by the Philadelphia Police Department ("PPD") on June 23, 1997. Defs.' Suppl. Statement Material Facts ("Defs.' SSMF") ¶ 21. Schweizer was found to have violated PPD policy on the following occasions:

• In August of 1999, Schweizer and another officer were accused by an individual named Corey Porter of numerous violations—including physical abuse, verbal abuse, and abuse of authority—stemming from a July 30, 1999 investigation. Id. ¶ 27(a). The Internal Affairs Bureau ("IAB") found that Schweizer had not engaged in physical or verbal abuse, but had engaged in abuse of authority by making a false statement.⁴Id. Schweizer received a five-day suspension. Id.

• In May of 2004, Schweizer was accused by an individual named Louise Erb-O'Neill ofphysical and verbal abuse during an incident involving her son on April 29, 2004. Id. ¶ 27(b). The only sustained allegation was that Schweizer used "Rude/Insulting Language." Id. Schweizer received a one-day unpaid suspension. Id.

• In January of 2008, while Schweizer was a member of the Narcotics Strike Force, the PPD Narcotics Division investigated a report that two racist stickers had been seen inside Schweizer's locker. Id. ¶ 27(c). One sticker was a graphic of a Ku Klux Klansman surrounded by the words "Blue by Day, White by Night" and the other stated "White Power." Defs.' Mot. Ex. I 11. Schweizer admitted to placing the stickers inside his locker but claimed he only did so after finding them attached to the outside of his locker. Defs.' SSMF Id. ¶ 27(c). The investigation confirmed Schweizer's version of events. Id. Schweizer was suspended without pay for 20 days and transferred from the Narcotics Strike Force to the 24th Police District. Id.

• On October 25, 2011, Schweizer and defendant officer Pross discharged their firearms multiple times at a criminal suspect who pointed a loaded weapon at them. Id. ¶ 27(d). Prior to discharging their weapons, Schweizer and Pross were investigating a radio call for shots fired in the area and had discovered a firearm in a trash can but did not recover the firearm before conducting surveillance. Id. The IAB determined that the discharge was justified and appropriate but that the officers had likely violated a PPD directive by conducting surveillance without first recovering the firearm in the trash can. Id. Accordingly, Schweizer received training and counseling. Id.

C. Procedural Background

Plaintiff filed the Complaint in this matter on December 13, 2018. On March 6, 2019, defendants filed a Motion for Judgment on the Pleadings (Document No. 6). In response,plaintiff filed a Motion for Leave to File Amended Complaint (Document No. 10), which was granted by the Court on May 20, 2019.

In the Amended Complaint, plaintiff names as defendants Scott Schweizer, Erik Pross, Michael Szelagowski, and the City of Philadelphia. Am. Compl. ¶¶ 6-9. Plaintiff asserts claims of malicious prosecution under 42 U.S.C. § 1983 and state law against all defendants (Counts 1 & 2); false arrest under § 1983 and state law against all defendants (Counts 3 & 4); excessive force under § 1983 against Szelagowski and Pross (Count 5); battery under state law against Szelagowski and Pross (Count 6); assault under § 1983 and state law against Szelagowski and Pross (Counts 7 & 8); false imprisonment under § 1983 and state law against all defendants (Counts 9 & 10); unjustified search and seizure under § 1983 against all defendants (Count 11); conspiracy under § 1983 and state law against all defendants (Counts 12 & 13); failure to intervene under § 1983 and state law against all defendants (Counts 14 & 15); and municipal liability under § 1983 against the City (Count 16). Am. Compl. ¶¶ 68-145.⁵

Defendants filed a Motion for Summary Judgment (Document No. 27) on September 27, 2019. Plaintiff responded on November 6, 2019 (Document No. 33). Defendants filed a Reply on November 20, 2019 (Document No. 37). The Motion is thus ripe for decision.

III. LEGAL STANDARD

The Court will grant a motion for summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is material when it "might affect the outcome of the suit under the governing law." Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The Court's role at the summary judgment stage "is not . . . to weigh the evidence and determine the truth of the matter but to determine whether . . ....