Velardo v. Lewko

YANIRA VELARDO and NAKIA VELARDO, Plaintiffs, v. EDWARD LEWKO, et al., Defendants.

Civil No. 3:18-CV-1885

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

August 22, 2019

(Judge Mariani)

(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION

I. Introduction

This case, which comes before us for consideration of a motion to dismiss, involves a September 28, 2016 incident in which police allegedly entered the home of Yanira Velardo at 2:00 a.m. without a warrant searching for a criminal suspect. Inside the home, Velardo confronted the officers demanding that they produce a warrant before searching her home in the early morning hours. This encounter then swiftly escalated to physical violence, and after a scuffle between Velardo; her daughter, Nakia; and police, Velardo was arrested for obstruction of justice. The authorities then compounded those charges after Velardo refused to plead guilty or waive her right to a preliminary hearing. Ultimately, all of the charges lodged against Velardo were either dismissed or resulted in not guilty verdicts.

It is against the backdrop of these well-pleaded facts that Velardo and her daughter bring this federal civil rights lawsuit. The defendants—who are alleged to have made a warrantless entry into Velardo's home at 2:00 a.m., forcibly restrained Velardo when she protested their warrantless entry, and then lodged criminal charges against Velardo which resulted in dismissals or acquittals—now move to dismiss this complaint, alleging that Velardo has completely failed to state a claim upon which relief may be granted.

For the reasons set forth below, with our review currently limited to an assessment of the plaintiffs' well-pleaded allegations, we disagree. Therefore, we recommend that this motion to dismiss be denied.

II. Statement of Facts and of the Case

The well-pleaded facts set forth in the Velardos' complaint, which guide us in evaluating the legal sufficiency of the plaintiffs' claims, recite that:

11. On September 28, 2016, Officers Peter Cordaro and Edward Lewko initiated criminal proceedings against Yanira Velardo by seizing her, arresting her and filing a criminal complaint charging her with one count of obstruction of justice.

12. According to the affidavit of probable cause sworn to by Officers Cordaro and Lewko, the charges relate to an incident on September 28, 2016 wherein Yanira Velardo allegedly physically obstructed officersfrom arresting her daughter, by stepping in between them and pushing Officer Maivaun Houssein.¹

13. The arrest of Yanira Velardo's daughter took place at Yanira Velardo's home at 1:55 a.m., without a warrant. Nakia Velardo was also a resident of that same home, and also had a privacy interest in the home.

14. Yanira Velardo repeatedly asked officers for a warrant if they wished to come in her home or arrest her daughter. Defendants did not have an arrest warrant or any warrant permitting entry into Yanira Velardo's home.

15. Defendant Lewko testified that the force he knocked on the door with was enough force to actually knock the door open.

16. Yanira Velardo came out of her bedroom and found her front door already opened by police, who could not and would not produce a search or arrest warrant.

17. Defendant Lewko testified that the officers were looking for another man who went by the name "Dinero" and that was the real reason they went to the house.

18. Defendant Lewko alleges that he identified "Dinero" from his J-Net photo from his police vehicle while traveling at a normal rate of speed past the home of Yanira Velardo, in the dark at 1:30 a.m. According to Defendant Lewko, "Dinero" is a dark-skinned black male at 1:30 a.m. and was allegedly, according to Officer Lewko, standing outside Yanira Velardo's home.

19. Defendant Lewko had an alleged victim in his car who was intimate with "Dinero." She did not identify the black male standing outsideYanira Velardo's house as "Dinero" but defendant Lewko supposedly did.

20. The man named "Dinero" was not at Yanira Velardo's home, and when police searched her home they only found three females and small children.

21. After repeated requests to see a warrant by Yanira Velardo, officers finally pushed their way into her home, without a warrant or consent, and attempted to arrest her daughter. In the process, they used force on Yanira Velardo, throwing her to the ground, putting a knee in her back and arresting her. All the above was done at 1:55 a.m. without an arrest warrant, search warrant, or any exigency at all.

22. The police officers lacked the necessary warrant, consent, or exigency to enter Yanira Velardo's home at 2 a.m.

23. Defendants charged Yanira Velardo with crimes. Originally, Yanira Velardo was only charged with one count of obstruction of justice. Yanira Velardo refused the Commonwealth's request to waive her preliminary hearing or plead guilty, and decided to have a hearing in front of Magisterial District Judge Rick Cronauer. Because Yanira Velardo refused to waive her constitutional rights and rights under the Pennsylvania Rules of Criminal Procedure, defendants added a charge of resisting arrest at the start of that hearing.

24. Yanira Velardo filed a Habeas Corpus motion in the Luzerne County Court of Common Pleas. The Honorable Judge Joseph F. Sklarosky, Jr. dismissed the charge of resisting arrest for lack of probable cause or a prima facie case.

25. Yanira Velardo ultimately went to trial on the obstruction of justice charge and was found not guilty.

(Doc. 1, ¶¶ 11-25.)

Based upon these allegations relating to the warrantless entry into Velardo's home, her forcible restraint and arrest by police inside her home, and the subsequentmeritless prosecution of Velardo, Yanira and Nakia Velardo have filed a 9-count civil complaint against the three arresting police officers, Edward Lewko, Maivaun Houssein, and Peter Cordaro. The first four counts of this complaint allege federal civil rights violations under the Fourth and Fourteenth Amendments, and specifically bring claims of false arrest, malicious prosecution, use of excessive force, failure to intervene, and conspiracy to violate the civil rights of the plaintiffs. (Id., Counts I-IV.) Counts five through nine of the complaint, in turn, allege the state law analogues to many of these federal civil rights claims, including assault, battery, false arrest and false imprisonment, intentional infliction of emotional distress, and trespass. (Id., Counts V-IX.)

The defendants have moved to dismiss this complaint in its entirety, arguing that each of these nine counts fails as a matter of law, and further asserting that the defendants are entitled to qualified immunity from damages on the plaintiffs' federal civil rights claims. (Doc.10.) This motion to dismiss is fully briefed and is therefore ripe for resolution. For the reasons set forth below, it is recommended that the motion to dismiss be denied.

III. Discussion

A. Rule 12(b)(6) - The Legal Standard

The defendants have moved to dismiss this complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides for dismissal whena complaint "fail[s] to state a claim upon which relief can be granted." With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal -U.S.-, 129 S. Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief may be granted, the Court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not "assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council ofCarpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.

In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court...