Lyons v. Salem Township

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

:

JAMES LYONS,

:

Plaintiff CIVIL ACTION NO. 3:16-1513

:

v. (JUDGE MANNION)

:

SALEM TOWNSHIP and

FRED WESTOVER, :

Defendants :

M E M O R A N D U M

Pending before the court is the defendants’ motion for summary

judgment. (Doc. 40). Based upon the court’s review of the record in this

action, the defendants’ motion will be GRANTED.

I. PROCEDURAL BACKGROUND

On July 22, 2016, the plaintiff, James Lyons, brought this civil rights

action pursuant to 42 U.S.C. §1983 against defendants Fred Westover

(“defendant Westover”), an officer with the Salem Township Police

Department, and Salem Township (“Township”). (Doc. 1). The Township filed

a motion to dismiss the plaintiff’s complaint. (Doc. 8). By memorandum and

order dated July 31, 2017, the court granted the motion to dismiss, without

prejudice, to allow the plaintiff an opportunity to cure the deficiencies of his

complaint relating to the Township’s municipal liability claim (Doc. 16, Doc.

17). The plaintiff filed an amended complaint on August 14, 2017. (Doc. 18).

On August 28, 2017, the Township challenged the allegations of the

plaintiff’s amended complaint on the same bases raised in its original motion

to dismiss. (Doc. 21). By order dated October 31, 2017, the defendant’s

motion was denied. (Doc. 26).

On December 10, 2018, the defendants filed the instant motion for

summary judgment (Doc. 40) along with a statement of facts (Doc. 41) and

supporting brief (Doc. 42). The plaintiff filed a brief in opposition to the

defendants’ motion (Doc. 45) and responsive statement of facts (Doc. 46) on

January 10, 2019. On February 25, 2019, the defendants filed a reply brief

(Doc. 49) and a response to the plaintiff’s counter statement of facts (Doc.

50).

II. STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings, the discovery

[including, depositions, answers to interrogatories, and admissions on file]

and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901

F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury

could find for the non-moving party, and is material if it will affect the outcome

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of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F. Supp.

836, 838 (M.D. Pa. 1995). At the summary judgment stage, “the judge’s

function is not himself to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d

Cir. 2004) (a court may not weigh the evidence or make credibility

determinations). Rather, the court must consider all evidence and inferences

drawn therefrom in the light most favorable to the non-moving party. Andreoli

v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively

identify those portions of the record which demonstrate the absence of a

genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party

can discharge the burden by showing that “on all the essential elements of its

case on which it bears the burden of proof at trial, no reasonable jury could

find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.

2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial

burden, the non-moving party “must do more than simply show that there is

some metaphysical doubt as to material facts,” but must show sufficient

evidence to support a jury verdict in its favor. Boyle v. County of Allegheny,

139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving

party “fails to make a showing sufficient to establish the existence of an

element essential to [the non-movant’s] case, and on which [the non-movant]

will bear the burden of proof at trial,” Rule 56 mandates the entry of summary

judgment because such a failure “necessarily renders all other facts

immaterial.” Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman-La

Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

III. DISCUSSION

Upon review, the defendants’ undisputed facts of record demonstrate

that, on July 22, 2014, at approximately 4:47 p.m., Karen Fenstemaker (“Ms.

Fenstemaker”) called 911 to report that the plaintiff had sexually assaulted his

niece, Tanya Lyons (“Tanya”). The dispatch entry reads:

20 YOF MENTALLY CHALLENGED WAS

SEXUALLY ASSAULTED THERE

HAPPENED LAST NIGHT

CALLERS SISTER LIVES THERE AND FEMALE

TOLD HER THAT A MALE NAMED JIMMY LYONS

THAT LIVES THERE ALSO RAPED HER MALE IS

THE FEMALES UNCLE

CALLER KAREN FENSTEMAKER . . .

3RD PARTY INFO

CALLERS SISTER IS AT THE HOUSE NOW HER

NAME IS CHRISTINA LYONS

4

MALE IS ALSO AT THE HOUSE

THE MENTALLY CHALLENGED FEMALE LIVES

WITH THE GRAND PARENTS THERE

Ms. Fenstemaker was reporting second-hand what she had learned

from her sister, Kristina Lyons. Tanya is the sister-in-law of Ms. Fenstemaker

and Kristina Lyons. Ms. Fenstemaker reported that Tanya is 25 years old and

mentally handicapped. She further reported that the rape happened a day

earlier on July 21, 2014.

After the report to 911, Tanya and Kristina Lyons went to the police

station for an interview with defendant Westover. Defendant Westover

testified that Tanya indicated to him that, on or about July 20, 2014, she woke

up during the night to the plaintiff getting in her bed. She stated that she tried

to tell the plaintiff “no,” but that the plaintiff “put his pee pee in her butt.” In his

affidavit of probable cause in support of the criminal complaint filed against

the plaintiff, defendant Westover states that Tanya reported that this

happened once a week or so and had been going on for some time. Kristina

Lyons told defendant Westover that, on or about July 17, 2014, just days

before this most recent incident, she saw the plaintiff outside of Tanya’s

bedroom fastening his pants.

Tanya testified in her deposition that she reported to defendant

Westover that the plaintiff tried to rape her when she was 13 or 14 years old

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when she was in a deep sleep after taking medication for seizures. This is

consistent with a statement later given to defendant Westover by the plaintiff.

The plaintiff is 21 years older than Tanya.

In a series of telephone calls on July 22 and July 23, 2014, law

enforcement reported the information they had gathered to then Assistant

District Attorney Jenny Roberts (“ADA Roberts”).1 ADA Roberts requested

that Tanya undergo a rape kit examination, and Tanya went to the hospital

that evening for a rape evaluation and medical examination. At the hospital,

Tanya reported that “Uncle Jimmy ‘forced’ penetration of her rectum with his

penis while she was sleeping.” Upon examination, there was no physical

evidence of sexual assault noted. ADA Roberts explained that this is common

because victims typically shower, change clothes, or use the bathroom in the

time between a sexual assault and actually reporting the assault to police. In

this case, Tanya was not wearing the same underwear she had been wearing

the night before.

An affidavit of probable cause was prepared by defendant Westover on

July 22, 2014, and a criminal complaint was completed on July 23, 2014

charging the plaintiff with incest.2 Defendant Westover testified that he did not

1Ms. Roberts is currently an Assistant United States Attorney.

218 Pa.C.S. §4302 - Incest -

(a) General rule.--Except as provided under subsection (b), a

(continued...)

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remember whether he read the sexual assault evidence collection and

interview record from the Berwick Hospital on Tanya before he filed the

charges against the plaintiff. The criminal complaint was approved by ADA

Roberts on July 23, 2014 with her testifying that she believed “there

absolutely was probable cause for the charge.” The criminal complaint was

sworn before the Magisterial District Judge Hasay that same day and the

affidavit of probable cause was approved for the plaintiff’s arrest.

According to the plaintiff, he was arrested at his house on July 23, 2014

2(...continued)

person is guilty of incest, a felony of the second degree, if that

person knowingly marries or cohabits or has sexual intercourse

with an ancestor or descendant, a brother or sister of the whole

or half blood or an uncle, aunt, nephew or niece of the whole

blood.

(b) Incest of a minor.--A person is guilty of incest of a minor, a

felony of the second degree, if that person knowingly marries,

cohabits with or has sexual intercourse with a complainant who

is an ancestor or descendant, a brother or sister of the whole or

half blood or an uncle, aunt, nephew or niece of the whole blood

and:

(1) is under the age of 13 years; or

(2) is 13 to 18 years of age and the person is four or more years

older than the complainant.

(c) Relationships.--The relationships referred to in this section

include blood relationships without regard to legitimacy, and

relationship of parent and child by adoption.

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by defendant Westover after which he gave a recorded statement at the

police station.3 In the statement, the plaintiff said “like once I did it up the [butt

hole].”4 Later in the interview, the plaintiff again stated, “This was a long time

ago I did her up the butt hole with my penis.” A third time, the plaintiff stated

“That was a long time ago I did her once up the butt hole . . .” The plaintiff

admitted that he told defendant Westover that he did her “up the butt” and

said he was talking about “[his] niece,” referring to Tanya. The plaintiff also

stated that “a long time ago I shaved [my niece] . . .,” referring to her vaginal

area.

ADA Roberts interviewed Tanya before the preliminary hearing. Prior to

doing so, ADA Roberts did not know the degree of Tanya’s mental limitations.

ADA Roberts remembers being told by defendant Westover that the plaintiff

was “slow,” but indicated that his description was not quantified. However, at

the interview, ADA Roberts learned of the extent of Tanya’s limitations and

testified that, even after interviewing Tanya, she still “absolutely” believed

there was probable cause to charge the plaintiff.

At the plaintiff’s preliminary hearing on October 8, 2014, Tanya testified

3The plaintiff has not responded to the defendants’ statement of facts

23-48. To the extent that those facts are supported by the record, they are

deemed admitted pursuant to L.R. 56.1.

4As noted by the defendants, although the court reporter typed “bowell,”

it is clear from the context and the plaintiff’s deposition that he said “butt

hole.”

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that she talked to the police about her “uncle.” ADA Roberts and Judge Hasay

questioned Tanya at length, resulting in 25 pages of testimony. Tanya denied

any recollection of what she told the police about the plaintiff and, halfway

through the questioning, stated she wanted to drop the charges. At the end

of the questioning, Tanya indicated that the plaintiff never did anything that

she did not like. However, she never answered what the plaintiff did do, nor

did she say what she told defendant Westover about the plaintiff. Because of

the lack of testimony, the charges against the plaintiff were dismissed.

In response to the defendants’ motion for summary judgment, the

plaintiff has presented his own statement of material facts the following of

which are not disputed. While defendant Westover took part in a three day

training course offered by the Pennsylvania State Police on interview and

interrogation techniques and dealt with people with mental disabilities over the

years, he did not have specific training on interviewing or interrogating

individuals with mental disabilities. Defendant Westover permitted Tanya’s

sister-in-law, Kristina Lyons, to be present during Tanya’s interview.

Defendant Westover understood that the plaintiff was mentally disabled

at the time that he interviewed him. Defendant Westover read the plaintiff his

Miranda warnings after the plaintiff indicated he had never heard of Miranda

warnings. After being read his Miranda warnings the plaintiff indicated he

understood the warnings, but immediately thereafter asked “What’s that

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mean?” Defendant Westover explained that it meant that “anything you tell me

today I can use, but you have the right not to talk if you don’t want to. And, if

you want to talk to a lawyer before you talk to me, you can do that.” The

plaintiff indicated that he did not have a lawyer, he could not afford one and

his sister told him it was best to get a lawyer. Defendant Westover repeated

that, if the plaintiff could not afford a lawyer, one would be appointed for him

and repeated that, if at any time the plaintiff wanted to stop talking to him, the

plaintiff could tell him and the conversation would stop until the plaintiff got a

lawyer. The plaintiff proceeded to start talking about an incident with his niece

that took place “a long time ago,” at which time defendant Westover

presented the plaintiff with a waiver of rights to sign. The plaintiff inquired as

to whether the signing of the waiver meant that he was going to jail to which

defendant Westover responded, “We don’t know yet until after we get done

talking to you. Okay. So, tell me what happened.”

The plaintiff told defendant Westover that other people had told him that

he engaged in anal sex with Tanya and raped her. Upon questioning, the

plaintiff repeatedly told defendant Westover that “a long time ago” he “did her

up the butt hole with [his] penis” and “shaved her.” The plaintiff told defendant

Westover that he could not remember anything about the incident because

it happened “a long time ago,” that he never touched Tanya after, and that he

was not in Tanya’s room on the night that he was accused of raping her. The

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plaintiff told defendant Westover that he could not provide a written statement

because he cannot write.

With the above facts in mind, the plaintiff's amended complaint contains

three counts. In Count I, the plaintiff alleges that he was arrested and

imprisoned without probable cause and in violation of his rights under the

Fourth Amendment. In addition, the plaintiff alleges in Count | that Salem

Township failed to train its officers in how to properly interrogate mentally

disabled individuals and to properly investigate criminal allegations and

establish probable cause. In Count Il, the plaintiff alleges a state law claim for

false arrest. Finally, in Count Ill, the plaintiff alleges state law claim for false

imprisonment. In order to sustain any of these counts, the plaintiff must

establish defendant Westover lacked probable cause to arrest him.

A claim under §1983 for false arrest/false imprisonment is grounded in

the Fourth Amendment guarantee against unreasonable seizures. Garcia v.

County of Bucks, 155 F.Supp.2d 259, 265 (E.D.Pa. 2001) (citing Groman v.

Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)). To maintain a false

arrest claim, the plaintiff “must show that the arresting officer lacked probable

cause to make the arrest.” Id. A false arrest claim will fail if there was

probable cause to arrest for at least one of any of the offenses involved.

Johnson v. Knorr, 477 F.3d 75 (3d Cir. 2007); see also Barna v. City of Perth

Amboy, 42 F.3d 809, 819 (3d Cir. 1994) (holding that for an arrest to be

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justified, “[p]robable cause need only exist as to any offense that could be

charged under the circumstances”); see also Devenpeck v. Alford, 543 U.S.

146, 153 (2004). “[W]here the police lack probable cause to make an arrest,

the arrestee has a claim under §1983 for false imprisonment based on a

detention pursuant to that arrest.” Groman, 47 F.3d at 636.

Just the same, state law claims of false arrest and false imprisonment

require a plaintiff to show there was no probable cause to bring the charges.

See Mills v. City of Harrisburg, 350 F. App’x 770, 774 (3d Cir. 2009) (non-

precedential). Therefore, if there was probable cause to detain and arrest the

plaintiff, it would mean that these claims are meritless.

Probable cause exists whenever reasonably trustworthy information or

circumstances within an arresting officer's knowledge are sufficient to warrant

a person of reasonable caution to conclude that an offense has been or is

being committed by the person being arrested. United States v. Laville, 480

F.3d 187, 194 (3d Cir. 2007). Probable cause is determined by the facts and

circumstances within the officer’s knowledge at the time of the arrest. Id. It

“does not depend on whether the suspect actually committed any crime.”

White, supra, 408 F. App’x at 598 (quoting Wright v. City of Philadelphia, 409

F.3d 595, 602 (3d Cir. 2005)). Only “a fair probability” that he did is required.

Id. (quoting Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000)). Each case

must be examined on its facts. Wilson, 212 F.3d at 790.

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The claims brought by the plaintiff in this case often require

consideration of the qualified immunity doctrine which shields government

officials “from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Under the qualified immunity doctrine, officials will be immune

from suit in their individual capacities unless, “taken in the light most favorable

to the party asserting the injury, . . . the facts alleged show the officer’s

conduct violated a constitutional right” and the “right was clearly established”

at the time of the objectionable conduct. Saucier v. Katz, 533 U.S. 194, 201

(2001). The court is not required to consider these inquiries sequentially.

Pearson v. Callahan, 555 U.S. 223 (2009).

In determining whether a right is clearly established, the relevant inquiry

is “whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier, 533 at 202. This inquiry

“must be undertaken in light of the specific context of the case.” Id. at 201. As

such, the court “must consider the state of the existing law at the time of the

alleged violation and the circumstances confronting the officer to determine

whether a reasonable state actor could have believed his conduct was lawful.”

Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). The court may

grant qualified immunity to a defendant if it is apparent that the defendant did

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not violate rights that were clearly established at the time the defendant acted.

Pearson, 129 S.Ct. at 820. In light of the fact that qualified immunity includes

consideration of whether the law was clearly established at the time of the

defendant’s conduct, this defense, which focuses on the state of the law,

presents a question of law for the court which can often be resolved on

summary judgment. See Montanex v. Thompson, 603 F.3d 243 (3d Cir.

2010).

In this case, the plaintiff’s brings federal constitutional and state law

claims for false arrest and imprisonment related to his arrest by defendant

Westover on the charge of incest. Defendant Westover argues, in part, that

he is entitled to qualified immunity. In considering the defendant’s claim of

qualified immunity, it is worth noting that the actions taken by defendant

Westover in charging the plaintiff were approved in advance by ADA Roberts.

In charging the plaintiff, defendant Westover was entitled to rely upon ADA

Robert’s approval of the charges in concluding that his conduct was lawful

and proper. “Under Pennsylvania law, . . . ‘[c]riminal proceedings initiated on

the advice of counsel are . . . presumed to be supported by probable cause

when the advice of counsel was sought in good faith and the advice was

given after full disclosure of the facts to the attorney.’” Williams v. Fedor, 69

F.Supp.2d 649, 670 (M.D.Pa. 1999) This presumption applies even if counsel

errs since “[t]he attorney’s advice need not be correct.” Id. See Pardue v.

14

Gray, 136 F. App’x 529, 532 (3d Cir. 2005). Thus, the fact that ADA Roberts

approved that charges is substantial evidence of probable cause.

In fact, in order to defeat qualified immunity, the plaintiff must show that:

(1) the police officer ‘knowingly and deliberately, or with a reckless disregard

for the truth, made false statements or omissions that create a falsehood in

applying for a warrant;’ and (2) that ‘such statements or omissions are

material, or necessary, to the finding of probable cause.’” Wilson v. Russo,

212 F.3d 781, 786-87 (3d Cir. 2000). Upon review, the plaintiff does not make

this showing.

The plaintiff argues that defendant Westover’s affidavit of probable

cause was materially misleading because he failed to include the extent of

Tanya’s and his mental disabilities. He further argues that defendant

Westover failed to include exculpatory facts elicited during the plaintiff’s

interrogation and that the results of Tanya’s rape kit were negative. Finally,

the plaintiff argues that defendant Westover misrepresented that the plaintiff

understood and knowingly waived his Miranda rights prior to the interrogation.

However, the finding of probable cause is not defeated by these claims.

Initially, the affidavit of probable cause noted that Tanya was mentally

challenged. Moreover, ADA Roberts testified that, although she did not initially

know the extent of Tanya’s disabilities, even after interviewing her, she

“absolutely” believed that there was probable cause to support the charges

15

against the plaintiff. The plaintiff has presented no facts to establish that

Tanya had such mental limitations as to be unbelievable. Moreover, the

plaintiff has cited to no legal precedent which indicates that an officer is

prohibited from relying on the statements of a mentally challenged individual

in making a probable cause determination.

As to the plaintiff’s mental capacity, this was of no moment, as his

statement was unnecessary to establish probable cause. Tanya’s statement

to defendant Westover, which was repeated to her sister-in-law, Kristina, and

to the hospital, as well as Kristina’s corroborating statement that she saw the

plaintiff outside of Tanya’s bedroom door fastening his pants was sufficient to

establish probable cause in and of itself. See Morrison v. Schultz, 270 F.

App’x 111, 116 (3d Cir. 2008) (Where “a police officer possesses ‘knowledge

of a credible eyewitness . . . a reasonable jury could not find that [he] lacked

knowledge of sufficient facts to establish probable cause to arrest.’”) (quoting

Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 790 (3d Cir. 2000)).

While the plaintiff challenges the fact that defendant Westover left out

of the probable cause affidavit exculpatory evidence in the form of the

plaintiff’s statements in which he indicated that he had not been in Tanya’s

room on the night in question and did not touch her, the fact remains that the

plaintiff admitted several times that he had anal sex with Tanya “a long time

ago.” This is consistent with Tanya’s statement that the plaintiff tried to rape

16

her when she was 13 or 14 years old and provides probable cause for a

charge of incest. Moreover, defendant Westover was not required to credit the

plaintiff’s self-serving statements. See Stolarik v. City of Wilkes-Barre, 2013

U.S.Dist. LEXIS 155788, *12 (M.D.Pa. Oct. 30, 2013).

The plaintiff also argues that the negative rape kit results defeat any

finding of probable cause. As discussed above, the rape kit results were not

necessary to establish probable cause as defendant Westover had the

statements of Tanya and her sister-in-law to establish sufficient probable

cause for the charges. Moreover, ADA Roberts explained that negative rape

kit results are common because events typically occur between the sexual

assault and the examination which prevent any positive findings, such as

showering, changing clothes, going to the bathroom, etc. Again, the plaintiff

cites to no precedent that an officer must include evidence of rape kit results

in an affidavit of probable cause when charging a sex crime.

In considering the facts of the this case, the court finds that defendant

Westover is entitled to qualified immunity since probable cause existed to

charge the plaintiff with incest. Defendant Westover presented the evidence

to ADA Roberts who authorized the filing of charges. The plaintiff has not

established that defendant Westover knowingly or deliberately or with a

reckless disregard for the truth, made false statements or omissions that

created a falsehood or that such statements or omissions were material or

17

necessary to a finding of probable cause. Therefore, the plaintiff’s federal

constitutional and state law claims for false arrest and imprisonment fail as a

matter of law and summary judgment will be granted in defendant Westover’s

favor on these claims.

With regard to the plaintiff’s claim against Salem Township, a

muncipality’s liability is derivative of the underlying officer’s liability. LA v.

Heller, 475 U.S. 796, 799 (1986). Since the court finds that the plaintiff

suffered no violation of his constitutional rights or state law rights since his

arrest was supported by probable cause, the court further finds that the

defendant, Salem Township, is not liable under a theory of municipal liability.

Therefore, summary judgment will also be granted in favor of the defendant,

Salem Township.

IV. CONCLUSION

Based upon the foregoing, the defendants’ motion for summary

judgment (Doc. 40) will be GRANTED in its entirety. An appropriate order

shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Date: September 30, 2019

16-1513-02.wpd

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