Vanderklok v. United States, CIVIL ACTION NO. 15-00370

ROGER VANDERKLOK, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

CIVIL ACTION NO. 15-00370

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AUGUST 16, 2016

PAPPERT, J.

MEMORANDUM

Roger Vanderklok ("Vanderklok") sued Transportation Safety Administration ("TSA") agent Charles Kieser ("Kieser") alleging various constitutional and state tort law violations stemming from Vanderklok's arrest at the Philadelphia International Airport. When attempting to pass through a TSA security checkpoint, Vanderklok placed his carry-on bag, which contained a digital watch encased in a section of plastic pipe, through the x-ray screening device. After noticing what appeared to be an explosive device inside Vanderklok's bag, TSA agents, including Kieser, conducted additional screening on the bag.

The parties dispute much of what happened after that. Kieser contends that Vanderklok grew agitated while TSA agents searched his bag. He claims that Vanderklok told him that he could bring a bomb into the airport "and you wouldn't even know it." Kieser then reported the statement to the Philadelphia Police. Vanderklok was arrested and subsequently charged with threatening the placement of a bomb, terroristic threats and disorderly conduct. Vanderklok asserts that he never made that statement, and that Kieser fabricated the story after Vanderklok told Kieser he wished to file a complaint over Kieser's allegedly aggressive and inappropriate conduct during the search of his bag.

Before the Court is Kieser's motion for summary judgment on the three remaining claims against him: First Amendment retaliatory prosecution, Fourth Amendment malicious prosecution and Fourth Amendment unconstitutional search and seizure. Vanderklok does not oppose Kieser's motion with respect to his Fourth Amendment unconstitutional search and seizure count. The Court accordingly grants Kieser's motion with respect to that count only. For the reasons that follow, the Court denies Kieser's motion with respect to Vanderklok's First Amendment retaliatory prosecution and Fourth Amendment malicious prosecution claims.

I.

On January 26, 2013 Vanderklok arrived at the Philadelphia International Airport for a flight to Miami, Florida to participate in a half-marathon. (Pl.'s Am. Compl. ¶ 25, ECF No. 22.)¹ Vanderklok entered the TSA security checkpoint and placed his carry-on bag through the x-ray screening device. (Def.'s Stmt. of Facts ("Def.'s SMF") ¶ 2; Pl.'s Resp. to Def.'s SMF ("Pl.'s SMF") ¶ 2, ECF No. 75; Def.'s Mot. for Summ. J. ("Def.'s Mot."), Ex. B, ECF No. 69.) The bag contained a digital heart-monitoring watch and Power Bars encased in a piece of plastic PVC pipe. (Def.'s SMF ¶ 2; Pl.'s SMF ¶ 2; Def.'s Mot., Ex. B.) The TSA screeners conducted an additional search of Vanderklok's bag because they "saw the heart monitoring watch and the Power Bars and thought they looked like the components of an explosive device." (Def.'s SMF ¶ 3; Pl.'s SMF ¶ 3.)

Kieser, a TSA screening supervisor, observed the additional search of Vanderklok's carry-on and approached Vanderklok to ask him about the contents of his bag. (Def.'s SMF¶¶ 4-5; Pl.'s SMF ¶¶ 4-5.) Kieser contends that during their conversation, "Vanderklok appeared agitated." (Def.'s SMF ¶ 6.) Vanderklok claims that "he was not frustrated or upset" and that "[i]t was [Kieser] who was agitated." (Pl.'s SMF ¶ 6.)

Kieser then called Philadelphia Police Officer Raymond Pinkney ("Pinkney"), telling him that Vanderklok told Kieser "I could bring a bomb through here any day I want and you'll never find it."² (Def.'s SMF ¶ 7.) Vanderklok denies that he ever made this statement and that Kieser instead concocted this "untruth" after Vanderklok asked him "for a complaint form so that he could complete it and detail what he believed was inappropriate and aggressive behavior." (Pl.'s Am. Compl. ¶ 33; Pl.'s SMF ¶ 8; Pl.'s Opp. to Def.'s Mot. ("Pl.'s Opp.") at 2, ECF No. 70.)

Pinkney and Philadelphia Police Sergeant Mack³ responded to Kieser's call, escorted Vanderklok to the Philadelphia Police station at the airport and placed him in a cell. (Def.'s SMF ¶¶ 19-20, 24; Pl.'s SMF ¶¶ 19-20, 24.) After Pinkney provided Philadelphia Police Detective Michael Wojciechowski with a verbal statement of the incident, Wojciechowski recommended that the District Attorney charge Vanderklok with disorderly conduct and placement of a bomb. (Def.'s SMF ¶ 29; Pl.'s SMF ¶ 29.) The District Attorney approved those charges and added a charge of terroristic threats. (Def.'s SMF ¶ 28; Pl.'s SMF ¶ 28.) Vanderklok was then handcuffed and transported to a West Philadelphia police station where he was placed in a cell before posting bond. (Def.'s SMF ¶¶ 30-21; Pl.'s SMF ¶¶ 30-31.) Athis criminal trial on April 8, 2013, a Philadelphia Common Pleas Court judge granted a defense motion for judgment of acquittal. (Def.'s SMF ¶ 32; Pl.'s SMF ¶ 32.)

II.

Vanderklok filed this lawsuit on January 23, 2015.⁴ (ECF No. 1.) On May 27, 2015 Vanderklok filed an Amended Complaint alleging various constitutional and tort claims against nine defendants involved in his arrest and prosecution. Those sued included Kieser, the United States of America, the TSA, the City of Philadelphia, Philadelphia Police Officers Pinkney, Wojciechowski and Kenneth Flaville, Department of Homeland Security Secretary Jeh Johnson and former TSA Administrator John S. Pistole. The parties stipulated to dismiss all claims against the TSA, Secretary Johnson and Pistole, and all constitutional claims against the United States. (ECF No. 41.) The Court granted motions to dismiss all claims against the City of Philadelphia and the three individual police officers, see Vanderklok, 140 F. Supp. 3d at 373, all remaining claims against the United States, see Vanderklok v. United States, et al., 142 F. Supp. 3d 356 (E.D. Pa. 2015), and all state tort claims against Kieser,⁵ (ECF No. 85).

Kieser, the sole defendant remaining in the case, now seeks summary judgment on Vanderklok's only remaining claims—First Amendment retaliatory prosecution, Fourth Amendment malicious prosecution and Fourth Amendment unconstitutional search and seizure. He argues that Vanderklok's First Amendment retaliatory prosecution claim fails becauseBivens⁶ does not apply in that context and that Vanderklok's Fourth Amendment malicious prosecution claim must be dismissed primarily because Kieser did not initiate the prosecution. Vanderklok opposes the motion, arguing that Bivens does extend to First Amendment retaliation claims. He also contends that there are sufficient facts in the record to demonstrate that Kieser initiated the prosecution against him in violation of his Fourth Amendment rights. (See generally Pl.'s Opp.) The Court heard oral argument on Kieser's motion on August 2, 2016, (ECF No. 81), and on August 9 entered an Order granting Kieser's motion with respect to Vanderklok's Fourth Amendment unconstitutional search and seizure claim and denying it with respect to his First Amendment retaliatory prosecution and Fourth Amendment malicious prosecution claims. (ECF No. 89.) This Memorandum explains the Court's decision.

III.

Summary judgment is appropriate "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 also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is genuine if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). Summary judgment is granted where there is insufficient record evidence for a reasonable factfinder to find for the plaintiff. Id. at 252. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id.

When ruling on a motion for summary judgment, the Court may only rely on admissible evidence. See, e.g., Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 95 (3d Cir. 1999). A Court must view the facts and draw all reasonable inferences in favor of the nonmoving party. See In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004). However, "an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment." Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).

IV.

Kieser argues that he is entitled to judgment as a matter of law on Vanderklok's First Amendment retaliation claim because: (1) such a cause of action does not exist under Bivens; and (2) even if it does, he has qualified immunity because the cause of action was not "clearly established" at the time of the incident. (Def.'s Mot. at 12-17; Oral Arg. 42:9-44:4, ECF No. 81.)

In Paton v. La Prade, 524 F.2d 862, 869 (3d Cir. 1975), the Third Circuit Court of Appeals for the first time addressed whether, "if the facts adduced at trial establish that [plaintiff's] first amendment rights have been infringed [by a federal officer], there is a cause of action for damages implied from the Constitution to redress that infringement." The court held that there was such a right: "[w]ere there no cause of action for federal infringement of first amendment rights, an aggrieved individual could seek damages for violations of his first amendment rights by state officials, 42 U.S.C. § 1983, but not by federal officials. There is no reason to allow federal officials to act with impunity in this context and to bar state officials." Id. at 870. Accordingly, it held "the extension of the Bivens rule to violations of first amendment rights to be both justifiable and logical." Id.

The Court reiterated that holding six years later in Milton v. Carlson, 652 F.2d 371, 374 (3d Cir. 1981), stating that if a plaintiff alleging a First Amendment retaliation Bivens claim "were able to...