Park v. Veasie

MICHAEL PARK and BRANDY LEE PARK, Individually and as Legal Guardiansof Minor Children, ERIE PARK, JOSHUA MICHAEL PARK, ELIZABETH MAE PARK,and DESIREE MARIE TARANTINO Plaintiffs

v. GARY VEASIE, Chief of Police of the Borough of Weatherly, Individually,OFFICER MICHAEL BOGART, Individually, OFFICER BRIAN MARKOVCHIK, Individually,and the BOROUGH OF WEATHERLY, a Municipal Entity Within the State of Pennsylvania Defendants

3:09-cv-2177

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DATE: April 20, 2012

(JUDGE MARIANI)

MEMORANDUM OPINION

The present matter was initiated by Plaintiffs Michael Park ("Michael"), Brandy Lee Park ("Brandy"), Erie Park, Joshua Michael Park ("Joshua"), Elizabeth Mae Park, and Desiree Marie Tarantino (together, Plaintiffs"), in the Court of Common Pleas of Carbon County, Pennsylvania, alleging that Defendants Gary Veasie ("Veasie"), Michael Bogart ("Bogart"), Brian Markovchik ("Markovchik"), and the Borough of Weatherly ("Weatherly")(together, "Defendants"), violated their civil rights in connection with the execution of a search warrant at Plaintiffs' residence. Plaintiffs filed this action pursuant to42 U.S.C. §1983, and include several pendant state law causes of action. Defendants removed the matter to this Court asserting that jurisdiction is proper pursuant to 28 U.S.C. §§ 1331 and 1343, and that the matter was removable under 28 U.S.C. § 1441 (ECF Dkt. 1). Plaintiffs filed an Amended Complaint on December 3, 2009 (ECF Dkt. 4). On December 22, 2009, Defendants filed a Motion to Dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a cause of action upon which relief can be granted (ECF Dkt. 7). On May 3, 2010, this matter was reassigned to Judge Sylvia H. Rambo, following the elevation of Judge Thomas I. Vanaskie to the United States Court of Appeals.

On June 9, 2010, Judge Rambo issued an opinion and order denying in part and granting in part Defendants' Motion to Dismiss, which eliminated all claims except for: (1) Fourth Amendment claims against individual Defendants Veasie, Bogart, and Markovchik, and (2) all state law claims. Judge Rambo's Order also granted leave for Plaintiffs to file a Second Amended Complaint to: (1) provide a proper foundation to assert Fourth Amendment claims against Weatherly, and (2) amend their First Amendment retaliation claim against Defendant Veasie. Judge Rambo's Order prohibits the filing of any further amendments.

On June 22, 2010, Plaintiffs filed their Second Amended Complaint (ECF Dkt. 26). In accordance with Judge Rambo's Order, Plaintiffs reasserted all of their Fourth Amendment claims against the individual Defendants, a First Amendment claim againstVeasie, and Fourth Amendment claims against Weatherly. Plaintiffs also reasserted their state law claims for: (1) intentional infliction of emotional distress; (2) false imprisonment; and (3) false light invasion of privacy.

Plaintiffs led a Motion for Partial Summary Judgment (ECF Dkt. 38) on January 21, 2011. Defendants then filed a Motion for Summary Judgment (ECF Dkt. 48) on March 15, 2011. Both motions are now ripe for adjudication.

BACKGROUND

While some of the factual predicates underlying this matter remain a matter of dispute, many of the proofs asserted by both of the parties are in substantial accord. On September 18,2008, Defendant Veasie was summoned to the Weatherly Elementary School for the purpose of investigating the origin of suspected drug paraphernalia found in a second grade classroom. (See Pls.' Amended Statement of Mat. Facts at 3, ECF Dkt. 78; Defs.' Statement of Mat. Facts at 13, ECF Dkt. 79.) After a teacher found a device used for smoking marijuana in the possession of seven year old Joshua Park ("Joshua"), the teacher promptly informed the school's principal, who in turn, sought assistance from the school guidance counselor. (See Melani Schaeffer Aff. at ¶ 4, ECF Dkt. 51.) The device, or bowl, was confiscated by the principal and placed in a plastic bag. (See Sandra B. Slavick Aff. at ¶ 2, ECF Dkt. 51.) Following further consultation with the school's superintendent, and in accordance with the procedures set forth in a Memorandum of Understanding ("MOU") between the Weatherly School District and the Weatherly Police Department, the principalreported the incident to the police. (See Defs.' Statement of Mat. Facts at ¶ 11; see also Memorandum of Agreement, ECF Dkt. 43-10.)

Defendant Veasie, after being called to the elementary school, contacted the Carbon County District Attorney's Office ("District Attorney") for advice (1) as to whether he could interview the student, and if so, (2) the proper protocol for such a meeting. (See Defs.' Statement of Mat. Facts at ¶¶ 13-14.) Veasie spoke with Detective Timothy Nothstein at the District Attorney's Office, and was advised that since the parents were the focus of the investigation, it would be proper for Veasie to interview the minor without notifying the parents so long as a school official was present. (See Defs.' Statement of Mat. Facts at ¶14; Timothy Nothstein Aff. at ¶¶ 7-8, ECF Dkt. 51.)

When Veasie arrived at the school, he interviewed Joshua in the presence of Principal Sandra Slavick ("Slavick"). (See Slavick Aff. at ¶ 10.) Joshua was asked to recount what he had earlier told Principal Slavick about the suspected contraband. (See Slavick Aff. at ¶ 10.) Joshua admitted that he brought the bowl to school, that it belonged to his parents, that his parents smoke from bowls, and that there were other bowls in his home. (See Slavick Aff. at ¶¶ [11-12.)

Veasie then contacted Jeff Aster ("Aster"), an agent with the Pennsylvania Attorney General's Office, and requested approval for a drug task force operation. (See Investigative Report of Pennsylvania Office of the Attorney General, Rpt. No. BN-1012308T, ECF Dkt. 51.) Veasie telephonically briefed Aster on multiple occasions throughout the day, and thematter was designated as a task force case. (See id.) Aster then advised Veasie on the preparation of a search warrant, and told him to contact the on-call District Attorney and the on-call District Judge. (See id.) Veasie then contacted Assistant District Attorney Joseph Matika ("Matika") for prosecutorial approval of the proposed search warrant. (See Joseph Matika Aff. at ¶¶ 5-6.) The facts set forth in the Affidavit of Probable Cause ("Affidavit") were found by District Justice Homanko to constitute probable cause and a warrant was issued to search for drugs and drug paraphernalia at Plaintiffs' residence. (See Search Warrant, ECF Dkt. 51-1.) Specifically, the warrant identified the object of the search as follows; "Marijuana, Drug Paraphernalia, Glass bowls used for smoking marijuana and or illegal substances or paraphernalia." (See id.) Veasie also contacted Carbon County Children and Youth Services and requested that a caseworker be present during the execution of the warrant. (See Defs.' Statement of Mat. Facts at ¶ 21.)

Later that afternoon, Defendants, accompanied by members of the neighboring Beaver Meadows Police Department "BMPD"), gathered at the Park residence. (See Defs.' Statement of Mat. Facts at ¶ 27.) Defendants maintain that BMPD's officers were stationed at the rear of the Park residence, while the Defendants organized at the front door. (See id.) Defendants assert that, in compliance with the knock and announce rule, they knocked on the Parks' front door. (See Defs.' Statement of Mat. Facts at ¶ 22.) At that time, Defendants allege that a pane from an already broken window fell and broke. (See id.) Defendants Bogart and Markovchik, who were stationed at the front door, claim that Brandywaved at them and indicated they could enter.¹ (See id. at ¶23.) Plaintiffs dispute this version of events, as Brandy testified in her deposition that she only became aware of a police presence after she heard glass breaking and witnessed several officers coming through her front door. (See Brandy Lee Park Dep. Tr. at 56:17-21; 57:19-34; 59:3-17, ECF Dkt. 81-3.)

Plaintiffs further insist that Defendants pointed their guns, including a shotgun, at Brandy and her children, and that Brandy pleaded with Defendants to not be handcuffed in front of her children. (See id. at 61-66.) Defendants contest this version of events and argue that they never entered the home with a shotgun, that they kept all other firearms holstered upon entry, and that guns were never pointed at Brandy or her children.² (See Defs.' Statement of Mat. Facts at ¶¶ 24-25.)

Defendants state that they found the house in considerable disarray, and requested the assistance of the Luzerne County Sheriffs Department's K-9 unit to facilitate a more thorough search. (See id. at ¶ 32.) Although it took more than an hour for the K-9 unit to respond, ultimately no drugs were found within the Park residence. Nevertheless, twoadditional contraband pipes were found in plain view and confiscated by Defendants.³ (See Michael Bogart Dep. Tr. 229:6-12, ECF Dkt. 78-3.)

At some point during the search, Michael arrived home from work. Defendants testified that Michael became "emotional" and, given his physical stature, a decision was made to place him in flex-cuffs and have him remain on the front porch. (See id. at 34.) Plaintiffs maintain that Michael remained calm and obedient to police authority throughout the duration of the search, and that the flex-cuffs were unnecessary. (See Pls.' Statement of Mat. Facts at ¶¶ 49-54.)

Following the confiscation of two alleged marijuana pipes from the Park residence, Michael was subsequently placed under arrest for possession of drug paraphernalia. (See Michael Bogart Dep. Tr. 229:6-12.) Brandy was not charged. (See Pls.' Statement of Mat. Facts at ¶¶ 4546.)

Veasie then ordered Kevin Kane ("Kane") of Children and Youth Services to take Joshua into protective custody. (See Kevin Kane Dep. Tr. 67:9-13, ECF Dkt. 60-10.) Defendants maintain that Veasie's decision to take Joshua out of...