Primus v. Burnosky, CIVIL ACTION NO. 02-713 (E.D. Pa. 4/__/2003)

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LOUIS PRIMUS, v. DETECTIVE BURNOSKY AND IMMACULATE MARY HOME.

CIVIL ACTION NO. 02-713.

United States District Court, E.D. Pennsylvania.

April __, 2003.

MEMORANDUM AND ORDER

JAMES T. GILES, District Judge.

Louis Primus brings this action against Detective Burnosky and Immaculate Mary Home ("Immaculate Mary"), seeking damages pursuant to 42 U.S.C. § 1983, 42 Pa. C.S.A. § 8343, and the common law of the Commonwealth of Pennsylvania, to redress injuries suffered as a result of accusations of sexual misconduct alleged against him while visiting his semi-conscious daughter in a medical facility and the prosecution that resulted. Before the court are Detective Burnosky's and Immaculate Mary's Motions for Summary Judgment made pursuant to Federal Rule of Civil Procedure 56(c). For the reasons that follow, the motions are granted.

Factual Background

The facts in the light most favorable to the non-moving party follow. In 1999, plaintiff's then twenty-four year old daughter, Maria Primus, was struck by a drunk driver and severely injured. The accident left her paralyzed from the neck down and in a semi-vegetated state. Her condition required continual medial care as Ms. Primus could not urinate, eat, or breathe on her own. (Pl.'s Mem. in Opp'n to Summ. Jud. at 2.) The Primus family placed her in Immaculate Mary, a nursing home facility, in September 1999. A gastrointestinal tube was inserted into her abdomen for feeding, and a Foley catheter was inserted into her urethra for urination. (Id. at 2-3.) Ms. Primus could not move or speak, and had to be repositioned every few hours to avoid bedsores. (Id. at 3.)

Plaintiff and his wife visited Ms. Primus everyday. Usually, Mr. Primus would arrive early in the morning and stay until his wife arrived later in the morning. (Id.) When his wife arrived, he would leave and do errands before returning to spend more time with Ms. Primus and to take his wife home. (Id.) On numerous occasions during Ms. Primus's care at Immaculate Mary, the Foley catheter had kinked or dislodged, causing the bed to become saturated with urine. (Id.) Nursing home records indicate that the catheter had dislodged on at least sixteen occasions between September 1999, when Ms. Primus was admitted, and December 2000. (Id. at 4; Pl.'s Ex. 1.) The Primus family states that they would routinely check Ms. Primus's catheter and her sheets, to insure that she was dry. (Pl.'s Mem. in Opp'n to Summ. Jud. at 3.)

On December 19, 2000, Mr. Primus arrived at Immaculate Mary at or around 5:00 a.m. to visit his daughter. (Id. at 4.) The day before, Mr. Primus was told that his daughter was running a temperature. (Id.) When Mr. Primus arrived that morning, the nurse's aide, Dawn Roberts, was in Ms. Primus's room. (Id. at 5.) The hospital room was semi-private. It was shared by another patient, who was situated in a bed approximately three feet from Ms. Primus's bed. The beds were separated by a hanging curtain. (Id. at 4.) When plaintiff entered the room, Ms. Roberts had just finished attending to Ms. Primus and was moving around the curtain to assist the other patient. (Id. at 5.) Ms. Primus was positioned on her left side, with her back to the bed of the other patient. (Id.) In a fetal position, she had a pillow between her legs and was covered with a sheet. (Id. at 5-6.)

Mr. Primus sat in a chair next to his daughter's bed while Ms. Roberts began attending the other patient. (Id. at 6.) At 5:20 a.m., Ms. Roberts looked over and saw Mr. Primus with his hand underneath the sheet. (Id.) Ms. Roberts later stated that he appeared as if "his mind was in a pleasure state." (Det. Burnosky's Ex. C, Roberts Int. at 2.) She stated that while plaintiff's hand was under the sheets, Ms. Primus was grunting and groaning. (Crim. Trial Tr. at 36.)

Ms. Roberts left the room without speaking to Mr. Primus. She told her supervisor, Suja Abraham, that Mr. Primus had his hands "underneath the sheets" and "between [Ms. Primus's] legs." (Pl.'s Mem. in Opp'n to Summ. Jud. at 6.) Ms. Roberts also stated that plaintiff was a "pervert" and that she believed he was acting in an inappropriate and sexual manner. (Imm. Mary's Mem. of Law in Supp. of Summ. Jud. at 3.) Ms. Abraham waited ten to fifteen minutes and then went Ms. Primus's room, where she found that Mr. Primus had left and Ms. Primus was sleeping comfortably. (Id. at 4.) Ms. Abraham then prepared a memo to Melissa Welch, Immaculate Mary's Director of Social Services, detailing the comments made to her by Ms. Roberts. (Pl.'s Mem. in Opp'n to Summ. Jud. at 7.)

This memo was later received by Stuart Skinner, Immaculate Mary's Administrator, who called Ms. Roberts into his office and questioned her about the incident. (Skinner Dep. at 14, 63.) During that interview, she stated that she had seen the sheet moved to the side, and that she saw plaintiff "rubbing [Ms. Primus's] private parts." (Id. at 27.) Mr. Skinner was aware that Ms. Roberts and Mr. Primus had had prior interpersonal difficulties. (Skinner Dep. at 27.) Previously, Ms. Roberts had reported that Mr. Primus had touched her shoulders inappropriately and without consent. (Id.) Mr. Primus had denied any wrongful conduct, claiming that he had merely tried to rub her shoulders as an act of friendship. (Imm. Mary's Mem. of Law in Supp. of Summ. Jud. at 12.)

Mr. Skinner next questioned Mr. Primus concerning the allegations of sexual abuse. (Pl.'s Mem. in Opp'n to Summ. Jud. at 7.) Mr. Primus denied any wrongdoing, and stated that he was merely checking on his daughter's catheter and temperature. (Id. at 7-8.)

On January 5, 2001, by telephone Mr. Skinner's office notified the Department of Heath, the Department of Aging, and Adult Protective Services of the December 19, 2000 report of Ms. Roberts. (Imm. Mary's Ex. 18.) These agencies directed that notification and copies of reports be sent to related state agencies.

Mr. Skinner also interviewed two nurses, Ms. Abraham and Leela George ("Ms. George"), to obtain information that could be relevant to the incident. (Imm. Mary's Mem. of Law in Supp. of Summ. Jud. at 5.) Ms. George described to him an incident where she had entered Ms. Primus's room and had seen plaintiff with his hands under her covers in the lap area. (Id.) She also stated that on that occasion Ms. Primus's face was flushed and that she appeared anxious and restless and was trying to make noise. (Imm. Mary's Mem. of Law in Supp. of Summ. Jud. at 5.) As she approached the bed, Mr. Primus removed his hands suddenly, with a look of fear or embarrassment, and did not reply when Ms. George asked if he needed help. (Id.) She further stated that Ms. Primus calmed down when she told Ms. Primus that she was there. (Id.)

Through further investigation Mr. Skinner learned that another nurse's assistant, Stephanie Jones, also claimed to have seen Mr. Primus with his hand underneath his daughter's covers. (Immaculate Mary's Ex. 12.) Ms. Abraham essentially reported Ms. Robert's claims as above stated.

Mr. Skinner then met with Ms. Primus's husband and legal guardian, Matthew Krapp, and told him that an allegation of sexual abuse had been made against Ms. Primus, that Immaculate Mary was required to investigate the allegation and report it to the State, and that Mr. Primus would be allowed to visit Ms. Primus only in the presence of his wife or son-and law. (Imm. Mary's Mem. of Law in Supp. of Summ. Jud. at 6.)

Mr. Skinner also met with plaintiff in the presence of the Chaplain, Father Tom. (Id. at 7.) There, Mr. Skinner told Mr. Primus that on or about December 19, 2000, a nursing aide had made an allegation that he had inappropriately touched his daughter in the vaginal area. (Id.) Mr. Primus did not deny that Ms. Roberts observed him with his hands under his daughter's sheets, but again stated that he had only been checking on Ms. Primus's circulation and temperature. (Id.) During that meeting, Mr. Primus was also told that the law required Immaculate Mary to report such allegations to authorities and that he would be prohibited from visiting his daughter without his wife or son-in-law present until the claim of misconduct was resolved. (Id.)

On January 18, 2001, Immaculate Mary filed its written report of the allegation against Mr. Primus on Form PB-22 to the Department of Health. As instructed by the Department of Health, it reported the claimed incident to the Pennsylvania Department of Aging and to the Philadelphia Police Department's Special Victims Unit. (Id. at 8.) The report included statements from Ms. Roberts's interview that she had seen plaintiff "rubbing and foundling (sic) Ms. Primus' buttocks and vaginal area." (Id.) Mr. Skinner's PB-22 report also expressly noted that plaintiff and Ms. Roberts had experienced a prior personal conflict, and that Ms. Roberts had alleged at that time that Mr. Primus had tried to rub her shoulders in appropriately. (Pl.'s Ex. 4.) In the "Conclusions" section of the report, Mr. Skinner wrote: "There is the distinct possibility that the incident occurred; however, there is also the possibility that Dawn Roberts made this accusation to retaliate for an unwanted advance by Mr. Primus . . ." (Pl.'s Ex. 4.)

On January 19, 2001, Detective Norman Burnosky, of the Philadelphia Police Department, was assigned to investigate the allegation against plaintiff. (Id. at 9.) On February 3, 2001, he interviewed Ms. Roberts and obtained from her a signed interview acknowledgment. (Id. at 10.) Ms. Roberts told him that she had observed plaintiff with one hand "caressing [Ms. Primus's] buttocks" and the other hand "on her private area where the foley would be." (Det. Burnosky's Ex. E, Roberts Int. at 1.) She also stated that Ms. Primus's bedcovers were not where she had left them, and that she believed something was improper was going on because plaintiff appeared to be in a "pleasure state." (Id. at 1-2.)

On February 13, 2001, he conducted telephone interviews of Ms. George and ...