MEMORANDUM.
This is a civil rights action brought by Plaintiff Anthony Kelly, who wrongfully spent five, weeks in jail following his arrest pursuant to an -aged warrant, because the officer who requested its issuance allegedly refused to investigate an airtight alibi— that he was incarcerated when the crime for which he was arrested occurred. The warrant in question was more than five years old, contained no physical description, and specified a nickname for the suspect which Plaintiff had in fact never used. On these alleged facts, where the alibi asserted would have been completely exculpatory and could have been.objectively verified through an official source, I am persuaded that Plaintiff has stated a viable claim for malicious prosecution.
I. Factual Background
Plaintiff asserts claims for False Arrest, False Imprisonment, Malicious Prosecur tion, and Failure to.Investigate under both 42 U.S.G. § 1983 and Pennsylvania state law against Defendant-Officers John Gret-sky, S. Gretsky, and Demoss Jones, arising out of his arrest in 2012. Additionally, Kelly brings a state law claim for Intentional Infliction of Emotional Distress against the three officers, and a § 1983 Monell claim against the City of Chester. Plaintiff was arrested outside of his place of employment on June 6, 2012. The arrest was made pursuant to a warrant for an alleged assault and robbery, issued upon an Affidavit of Probable Cause sworn to by Officer Demoss Jones on October 23, 2006/ That affidavit did not contain a physical description of the suspect, but merely , listed the suspect’s name, Anthony Kelly, and his alias, “Izzy.” Officers John Gretsky and S. Gretsky stopped Plaintiff, and upon hearing that the man they had stopped was named Anthony Kelly, made no . attempt to determine whether he also had the nickname “Izzy.” The Officers Gretsky executed the warrant and took Plaintiff into custody. Officer Jones, who was not among the arresting officers, was informed of the arrest immediately after the warrant was executed.
Plaintiff told the Officers that it was impossible for him to have committed the crimes listed in the warrant because he was incarcerated'during the period in 2006 when the crimes were alleged to have occurred. Plaintiff alleges that afino time did any of the officers investigate his claim that he was incarcerated at the time of the crimes and could not have committed them; no officers attempted to contact the initial victim to confirm Plaintiff’s identity; no officers attempted to verify his identity as “Izzy”; and, that the officers had a mugshot of the actual “Izzy” in their possession but ignored that picture.
Plaintiff sрent more than a month in county jail as a result of the arrest, with bail set at $20,000. On July 18, 2012, charges against Plaintiff were dismissed with prejudice by Judge Spencer Seaton,
II. Malicious Prosecution and Failure to Investigate
Plaintiff asserts malicious prosecution claims against all three officers under both § 1983 and under Pennsylvania common law. Under § 1983, malicious prosecution claims require a showing that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiffs favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliсiously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Kossler v. Crisanti,
Kelly also asserts claims for “failure to investigate.” Although some decisions discuss such a theory in connection with claims for malicious prosecution, I share the concern of my colleague Judge Goldberg that the “contours of a standalone claim for failure to investigate are not well-defined within this Circuit.” Briscoe v. Jackson,
Under both the federal and state standards, Defendants must have initiated the criminal proceedings without probable cause. Therefore, if probable cause existed to initiate the proceedings against Kelly, the malicious prosecutions claims must be dismissed. “[P]robable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.” Orsatti v. New Jersey State Police,
Because the officers involved played different roles, I evaluate Plaintiffs claims separately,
A. Claims Against Gretsky Defendants
Officers John Gretsky and S. Gretsky are not alleged to have played any prior role in the investigation or the issuance of the arrest warrant. Technically speaking, they did not, in the first instance, “initiate” a criminal proceeding. I have some questions as to the validity of the claim against them on that basis alone. One could, however, consider their arrest of Plaintiff to constitute initiation of proceedings, and for purposes of discussion I will assume that bringing Kelly into custody would suffice
To determine whether probable cause existed as to the arresting officers, the focus of the inquiry is on the arrest itself. Plaintiff concedes that Officers John and S. Gretsky stopped and arrested him based on an outstanding arrest warrant matching his name.- “It is well-settled that probable cause to arrest generally exists when a police officer makes an arrest pursuant to a warrant which meets the requirements of the Fourth Amendment.” Kis v. Cnty. of Schuylkill,
[t]he requirements for the execution of a valid arrest warrant are clear. The arrest warrant must contain “the name of the defendant or, if his name is unknown, any name or description by which he can be described with reasonable certainty.” Fed.R.Crim.P.. 4(c)(1). Only in this way can an arrest warrant meet the particularity requirements of the Fourth Amendment. Courts have long held that “John Doe” warrants are insufficiently particular to meet this standard. United States v. Doe,703 F.2d 745 , 747 (3d Cir.1983); Beyond that, however, a warrant that correctly names the person to be arrested generally satisfies the requirements of-the Fourth Amendment and no other description of the arrestee is usually necessary in the warrant.
Kis v. Cnty. of Schuylkill,
It is true that “an arrest warrant that incorrectly names the person to be arrested will usually be deemed insufficient to meet the Fourth Amendment’s particularity requirement unless it includes some other description of the intended arrestee that is sufficient to identify him.” Powe,
The question then becomes whether the Gretskys, who acted here solely as arresting officers, had a further duty to investigate the strength of the case. In situations where an officer’s involvement is limited to executing a facially valid warrant, the Supreme Court has held that liability should ordinarily not attach: “Given the requirements that an arrest be made only on probable cause and that one
Like the sheriff in Baker v: McCollan, the Gretskys acted on’the basis of a facially valid warrant issued in reliance on the sworn allegations of another law enforcement officer. In the ordinary course of evénts they would not have a duty to inquire further, as “the Constitution does not guarantee that only the guilty will be arrested.”
B. Claim Against Officer Jones
The claim- against Jones stem from alleged reckless conduct in seeking the warrant in 2006, and his refusal to investigate and confirm Kelly’s claim that he could not have been the suspect named in the warrant because of his previous incarceration.' There are meaningful differences in the role played- by an officer who merely effectuates an arrest as compared to an officer-responsible for pressing charges. Although the conduct of the arresting officer results in a suspect being taken into custody, whether the suspect continues to be. held stems from the decisions of the prosecuting officer, in this case Officer Jones. The defense contends the principle recognized by the Supreme Court in Baker,, that ,qn arresting officer has no duty to investigate,. should. also extend, without .exception, to the prosecuting officer whose affidavit formed The basis for the arrest, and that-it should extend, indefinitely, regardless of. how-long a suspect is detained.- This ignores the fact that once a suspect has been detained, law enforcement has additional time and resources to determine whether that suspect was in fact the individual involved-in the crime. Ironically, and of significance here, the plaintiff in Baker was released three days later, after being remanded into the custody of the county which had issued the warrant, which then cheeked the file photo of the wanted man and acknowledged it was а case of mistaken identity.
For practical purposes, the question is how far. to extend the protections of Baker. To state the .matter differently: if the obligation of the arresting officers was - to make certain they were seizing an Anthony Kelly, did the prosecuting, officer have an obligation to consider-whether they had arrested the .Anthony Kelly against whom he had alleged a finding of probable cause?
The warrant in question wаs more than five years old. Neither Plaintiffs first name nor last name was exotic or unusual, making it entirely probable that there could be more than one “Anthony Kelly” within the jurisdiction. Although there is no requirement that a warrant include a physical description, the absence of such a description, particularly when coupled with relatively common names, creates a wider possibility of error. The suspect being sought had a particular nickname, about which Plaintiff was not asked. In Walker v. Spiller, No. 97-6720,
This is not a case where Plaintiff raised an alibi or excuse that would have required the officer to go outside of the department seeking exculpatory evidence. It is not a case where the validity of the alibi depended upon the veracity of witnesses who might have an incentive to lie, or was circumstantial and dependent on a series of inferences. To the contrary, there was objectively verifiable information from-official sources that Officer Jones could have consulted with minimal effort: a mug shot of the suspect and criminal records that would have definitively established that the wrong person had been arrested. As a definitional matter, no “investigation” was required, just verification of a single fact— was Plaintiff incapable of having committed the crime for which he was arrested by
virtue of his previous incarceration? With Kelly safely in custody, confirmation of that fact would not have interfered with Officer .Jones’ discharge of his duty or required him to 'do anything more - than check information' available to and routinely used by police.
In evaluating issues of probable cause and the duty of an officer to consider potentially exculpatory evidence, the Tenth Circuit has recognized a distinction between “fundamental” evidence, which an officer- must consider, and - evidence that could be subject to a variety of interpretations. See Romero v. Fay,
Plaintiff must finally show that the officer acted maliciously or for a purpose other than bringing the, plaintiff to justice. At this preliminary stage in the сase, given this constellation of .facts, Kelly is at .a minimum entitled to discovery on his claims. There was clearly reason to ques
Qualified immunity does not bar the malicious prosecution claim against Officer Jones. The Supreme Court has put forth a two-step test for determining whether a government official, such as a police officer, is entitled to qualified immunity when sued under § 1983. See Saucier v. Katz,
First, a court must decide whether the facts that a plaintiff has alleged make out a violation of a constitutional right. Second, if' the plaintiff has satisfied this first step, the court must decide whether • the right at issue was “clearly established” at the time of defendant’s alleged misconduct.
Pearson v. Callahan,
With regard to the first portion of the test, I have already determined that Plaintiff has alleged enough facts to make out a potential violation of a constitutional right at this stage of the litigation, though such a violation will later need to be supported by facts. Next, “[t]he relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier,
While this language from Kelly and Malley speaks to whether the act of applying for a warrant, it is equally applicable to the situation before this Court, where qualified immunity hinges on the. continued existence of probable cause following arrest, when the question of mistaken identity presented itself. Probable cause ceases to exist when it becomes clear that the wrong person has been taken into custody — a fact that Officer Jones could have readily ascertained. And the proposition that no citizen can be imprisoned without probable cause would be self-evident to any officer.
III. Monell Claims
Kelly alleges that the City of Chester failed properly to trаin its officers as to the limits of their authority. As to specificity, the defense is correct that the Complaint is not impressive in its detail. Taken in its entirety, however, it adequately states a claim for municipal liability, and certainly provides sufficient notice to the City of what is at issue. Whether Plaintiff can support a claim of lack of training will be determined later in the litigation. The Motion to Dismiss on that ground will be denied.
However, the scope of the Monell claim is limited by the statute of limitations. “In actions under 42 U.S.C.
IV. Intentional Infliction of Emotional Distress
There is no constitutional claim for Intentional Infliction of Emotional Distress. Such a claim can survive only if it is cognizable under state law. The Third Circuit has predicted that the Pennsylvania Supreme Court will ultimately recognize such a theory. Pavlik v. Lane Limited/Tobacco Exporters International,
The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in any civilized society. It has not been enough that the defendant has acted with intеnt which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort.
Reardon v. Allegheny College,
Upon my review of the cases, they seem to require conduct deliberately pursued for the specific purpose of causing affront to a specific individual. Although I find the police conduct alleged here deeply troubling and sufficient to rise to the level of a constitutional deprivation, it lacks the personal animus Pennsylvania cases appear to require.
V. Conclusion
Count I of the First Amended Complaint for False Arrest and False Imprisonment will be dismissed as to all Defendants, but the claim for Malicious Prosecution under this Count will remain as to Officer Demoss Jones. Count II for Failure to Investigate will be dismissed, but allеgations pertinent thereto are deemed incorporated within Plaintiffs claim for Malicious Prosecution. Count III for Malicious Prosecution will be dismissed as to Officers John Gretsky and S. Gretsky, but not as to Officer Demoss Jones. Count IV for Intentional Infliction of Emotional Distress will be dismissed as to all Defendants. Count V for Failure to Train, Supervise, and Discipline will be dismissed in part, as it applies to Claims arising out of False Arrest. Claims arising out of Malicious Prosecution survive. An appropriate order- follows.
ORDER
This 17th day of April, 2015 after reviewing Defendants’ Motion to Dismiss
• Counts I, II, and IV of the First Amended Complaint are DISMISSED as to all Defendants. Malicious Prosecution under Count I will be considered under Count III instead. Plaintiffs Failure to Investigate claim is incorporated into his Malicious Prosecution claim.
• Count III is DISMISSED as to Officers John Gretsky and S. Gretsky, but will remain against Officer De-moss Jones.
• Count V is DISMISSED IN PART, as it applies to claims arising out of False Arrest. Claims arising out of Malicious Prosecution remain.
MEMORANDUM ON RECONSIDERATION
Defendants Officer Demoss Jones and the City of Chester moved for reconsideration of my previous decision denying qualified immunity for Plaintiff Anthony Kelly’s unlawful incarceration for a period of approximately five weeks following his arrest on a warrant obtained by Officer Jones. For the reasons that follow, reconsidera? tion is denied, and my previous; order and opinion denying Defendants’ Motion to Dismiss the claims against Officer Jones and City of Chester will be reinstated.
1. Defendants’ arguments in support of their Motion to Dismiss and Motion for Reconsideration fail to address those facts which are critical to whether qualified immunity is warranted.
Plaintiff was taken into custody as a result of a warrant issued in reliance upon representations made by Defendant. As set forth in my opinion of April 17, 2015, although that warrant was legally sufficient, it contained no physical description of the suspect. Neither “Anthony” nor “Kelly” is a unique or unusual name. The warrant in question was not executed close in time to the offense; more than five years had elapsed. The target ¡of the warrant was known to use a nickname which Plaintiff disavowed. Most importantly, the police were in possession of a mug shot of the actual perpetrator of the offense, and Plaintiff has pleaded that he advised Officer Jones that the wrong Anthony Kelly had been arrested. Finally, without leaving the police station, either by comparing the mug shot or confirming with- a records check that Plaintiff, was incapable of having committed the offense because he was incarcerated) Officer Jones could have ascertained that his warrant brought about an erroneous arrest.
Accordingly, Plaintiff has pleaded facts that, if true, sufficiently state a claim under 42 U.S.C. § 1983, and Officer Jones is not entitled to qualified immunity for his actions.
II. The initial issuance of a warrant does not relieve Officer Jones of liability for malicious prosecution.
Defendants assume that an initial determination by a judicial officer that there was probable cause to issue a warrant immunizes police from any further responsibility downstream. The Third Circuit specifically rejected the theory that probable cause to make an arrest necessarily immunizes an officer from liability for malicious prosecution in Johnson v. Knorr,
In that regard, the.cases discussed in the Court’s earlier decision,
III. The right in question was clearly established, such that qualified immunity is unwarranted.
‘ Defendants argue that Officer Jones is entitled to qualified immunity because the constitutional right allegedly violated was not clearly established at the time Officer Jones acted. To overcome a qualified immunity defense, it must be clear at the time of the officer’s conduct that a “reasonable official” would understand his actions violate a particular’constitutional right. Anderson v. Creighton,
In my. initial opinion, I noted that “the proposition that no citizen can be imprisoned without probable cause would be self-evident to any officer.” See United States v. Lanier,
In Baker v. McCollan, which I discussed in my original opinion, the Supreme Court considered the case of a plaintiff arrested pursuant to a facially valid warrant issued outside their jurisdiction and detained for three days over a New Year’s weekend, then released after officials compared the plaintiffs appearance to a file photograph of the wanted man and realized their error.
Obviously one in [the plaintiffs] position could not be detained indefinitely iri the face of repeated protests of innocence even though the warrant under which he was arrested and detained met the standards of the Fourth Amendment. ... We may even assume, arguendo, that, depending on what procеdures the State affords defendants following arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the-face of repeated protests of innocence will after the lapse of a certain amount of time deprive, the accused of “liberty without due process of law.”
Id. at 144-145,
One of the earliest pertinent decisions to consider how long a period of mistaken incarceration must be, or what sorts of procedures must be denied an arrestee to establish a constitutional violation, was issued more than thirty years ago by a highly regarded member of this Court, Judge Louis Pollack. Rodriguez v. Roth,
Although Rodriguez is only a district court opinion, it formed part of the basis of the Sixth Circuit’s decision in Gray v. Cuyahoga County Sheriff’s Department,
The Seventh Circuit considered an even shorter detention based on mistaken identity — a seven-day period — to present a possible constitutional violation in Patton v. Przybylski,
[T]o arrest a person over his vigorous protest that he is the wrong man — a protest given.some credibility in this case by the-driver’s license — and keep him in jail for this period without either investigating the case or bringing him before a magistrate raises serious constitutional questions. ... Baker v. McCol-lan is not to the contrary.
Id. at 700-01.
In Lee v. City of Los Angeles,
Finally, in Cannon v. Macon County,
To summarize, as of the time of Kelly’s arrest, four circuits, in decisions dating back to 1987, had validated Judge’s Pollack’s earlier interpretation of the Constitution,
In this case, the length of Plaintiffs incarceration — 30 days — was ten times as long as that-of the plaintiff in Baker. This is also the same length of time that Judge Pollack found constitutionally problematic in Rodriguez, and four times as long as the period the Seventh and Eleventh Circuits found problematic in Patton and Cannon. In addition, as in Rodriguez, Gray, Cannon, and Lee, Officer Jones had the ability to easily discover the error in identification by consulting information accessible to him like photographs and descriptions of the actual subject of the arrest warrant.
The defense contends that the controlling law had to have been unclear to Officer Jones, seizing upon this sentence in my earlier opinion: “For practical purposes,
IV. Plaintiff has stated a viable claim against the City of Chester.
My original order indicated that Plaintiff sufficiently statеd a § 1983 Monell claim against the City of Chester for failure to properly train and supervise officers, at least pertaining to policies and customs relevant to the malicious prosecution claim. Defendants argued that since Plaintiffs Monell claim is predicated on the City of Chester’s alleged unconstitutional policy in failing to train, supervise, or, discipline Officer Jones, the Monell claim should be dismissed' if the claims -against Officer Jones were dismissed. Since the claim against Officer Jones will be permitted to proceed, the claim against the City of Chester will accordingly be permitted. Therefore, my original order as to the City of Chester Defendant is reinstated.
Notes
. Pearson clarified that these two requirements need not be determined in that order.
, One is tempted to describe Intentional Infliction of Emotional Distress as a hypothetiсal tort in Pennsylvania. Although the Supreme Court has made reference to its potential existence, it has yet to find a fact pattern sufficiently egregious to permit recovery of damages. See Litvin & McHugh, Pennsylvania Torts, Section 11.7 (West/Thompson Reuters, ,1996; Supp.2015).
. The Motion for Reconsideration was filed as the Court was in final pretrial preparation for a lengthy out-of-district criminal case. In response to Defendant’s Motion for an extension of time to file an interlocutory appeal, I vacated the Order so that the parties and the Court would have time to give appropriate consideration to Officer Jones’ position. Defendants' Motion for Reconsideration was therefore denied as moot, but this opinion responds to the arguments made by the Defendants in suppоrt of that Motion.
. In light of the exigent circumstances facing the arresting officers in the field, I found that they acted reasonably in arresting Plaintiff despite these now-apparent problems. An arresting officer must have probable cause— determined, by an objective inquiry into the facts and circumstances within the officer’s knowledge — to believe that the person he is arresting has committed a crime. United States v. Cruz,
. Walker v. Spiller, No. 97-6720,
. The Seventh Circuit considered the reasonableness of the arresting officer’s actions in light of the practical difficulties facing officers executing warrants in the field:
If an officer executing an arrest warrаnt must do so at peril, of damage liability under section 1983 if there is any discrepancy between the description in the warrant and the appearance of the person to be arrested, many a criminal will slip away while the officer anxiously compares the description ih the warrant with the appearance of the person named in it and radios back any discrepancies to his headquarters for instructions.
Patton,
, The Court ultimately found that the claim failed only because the plaintiff had not demonstrated that the sheriff named as a defendant in the case knew anything about the delay in investigating, and he therefore could not be held liable. Patton,
. Courts have conceptualized the violation in different ways — differing mainly on whether the violation should be characterized as one of the Fourth ániendment or the Fourteenth amendment — but they have uniformly found that such detention was unlawful.