Richard Turzai v. City of Pittsburgh

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1602
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RICHARD D. TURZAI,
Appellant,
v.
CITY OF PITTSBURGH; ROBYN L. BOTTESCH,
Individually and as an officer for the City of Pittsburgh;
JOSEPH REIFF, Individually and as an officer for the City of Pittsburgh;
THOMAS HENDERSON, Individually and as an officer
for the City of Pittsburgh;
MATHEW TURKO, individually and as an officer
for the City of Pittsburgh;
GEORGETTE A. SCAFEDE, Individually and as an officer
for the City of Pittsburgh
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 08-cv-01740)
District Judge: Honorable Joy Flowers Conti
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Submitted Under Third Circuit LAR 34.1(a)
December 13, 2011
Before: SLOVITER and VANASKIE, Circuit Judges
and STENGEL,* District Judge
(Opinion Filed: January 13, 2012)
*Honorable Lawrence F. Stengel, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
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OPINION OF THE COURT
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STENGEL, District Judge.
This is an appeal from the District Court’s grant of summary judgment in favor of
the City of Pittsburgh, et al., on Richard Turzai’s claims against all defendants under 42
U.S.C. § 1983 for deprivation of liberty without due process of law, malicious
prosecution, and violation of his First Amendment rights, and against the individual
defendants under Pennsylvania law for malicious prosecution, false arrest, invasion of
privacy, and illegal detention. The District Court granted the defendants’ motion for
summary judgment with respect to all federal question claims and dismissed the
plaintiff’s remaining claims arising under Pennsylvania law after declining to exercise
supplemental jurisdiction. We will affirm.1
Because we write primarily for the parties, we need not discuss the facts or
procedural history of this case.
1
The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
We have jurisdiction pursuant to 28 U.S.C. § 1291. “Our standard of review
applicable to an order granting summary judgment is plenary.” Nasir v. Morgan,
250 F.3d 366, 368 (3d Cir. 2003). When the moving party is entitled to judgment as
a matter of law, with the facts viewed in the light most favorable to the non-moving
party, we may affirm the order of the District Court. Nicini v. Morra, 212 F.3d 798,
805-06 (3d Cir. 2000).
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Turzai first contends that the District Court erred in granting summary judgment
regarding Turzai’s malicious prosecution claims because the District Court did not
consider all of Turzai’s contentions as they applied to his first arrest for criminal trespass
and simple mischief, which he asserts lacked probable cause. Specifically, Turzai
maintains that the arrest warrant prepared by Detective Bottesch does not establish
probable cause because it omitted a property survey that created conflict over the
ownership of the disputed property. Yet, Turzai acknowledges that Bottesch was unable
to obtain a copy of the survey despite her unsuccessful attempts to meet with Turzai at his
residence prior to obtaining the arrest warrant. We agree with the District Court that the
detective’s failure to consider Turzai’s survey or mention it in the affidavit does not
negate probable cause for the charges. Bottesch interviewed neighbors who witnessed
Turzai urinating on the side of Berard’s home on two separate occasions and posting
distasteful signs on her porch. The District Court did not err in finding that the
circumstances known to Bottesch would warrant a reasonable officer to believe that it
was more likely than not Turzai committed the crime of simple trespass and criminal
mischief. Those reasonable beliefs alone are enough to establish probable cause and
would not be negated if Bottesch unearthed the elusive property survey and included
reference to an alleged boundary dispute in the arrest warrant.
Furthermore, Turzai’s argument that the District Court failed to understand
Turzai’s state law claims, much less consider them, is inherently flawed. The District
Court did not examine Turzai’s state law claims because it dismissed those claims
without prejudice after declining to exercise supplemental jurisdiction. The District
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Court considered the facts underlying those claims insofar as they created issues of fact
with regard to Turzai’s federal claims. Turzai’s rebuke of the District Court for its failure
to acknowledge an additional state law claim against Bottesch is unintelligible given the
Court’s discretion to decline to exercise jurisdiction over those state law claims.
Still with regard to the first arrest warrant, Turzai also contends that the District
Court erred in granting summary judgment regarding Turzai’s malicious prosecution
claim because the charge of stalking was not supported by probable cause. Turzai asserts
that the first arrest warrant “entirely omits the undisputed fact that Berard never feared
bodily injury, and that she never suffered severe emotional distress” as required for the
charge of stalking. Appellant’s Brief at 31. However, the District Court properly found
that Berard feared bodily injury. Her repeated reports to police outlined an ongoing,
childish, but escalating, property dispute. By his own admission, Turzai posted signs that
could reasonably be viewed as intending to cause Berard substantial emotional distress.
We find the District Court did not err in finding that the charge of stalking was supported
by probable cause.
In addition, Turzai argues that omissions and misrepresentations eliminated
probable cause for all three charges. We are unpersuaded by Turzai’s various
contentions. The District Court appropriately did not draw an unwarranted inference
from the allegation that Berard had a personal relationship with a police officer who was
not involved in the proceedings against Turzai. Moreover, the District Court correctly
found that even removing the various alleged misrepresentations and adding alleged
omissions to the affidavit, probable cause still existed. Finally, the Appellant
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misconstrues Berard’s personal interactions with the Magistrate Judge, attempting to cast
doubt on the impartiality of the proceedings. We find these arguments unavailing and the
District Court correctly did not draw unreasonable inferences from Turzai’s
unsubstantiated allegations.
Next, Turzai argues that the District Court erred when analyzing Turzai’s second
arrest for retaliation against a witness. Turzai alleges that Officer Scafede maliciously
prosecuted him and deprived him of liberty without due process of law when he filed an
affidavit of probable cause seeking to charge him with retaliation. We have cautioned
that “[t]he probable cause determination is to be made only after considering the totality
of the circumstances, which requires courts to consider the cumulative weight of the
information set forth by the investigating officer in connection with reasonable inferences
that the officer is permitted to make based upon the officer’s specialized training and
experiences.” United States v. Yusuf, 461 F.3d 374, 390 (3d Cir. 2006) (citing United
States v. Arvizu, 534 U.S. 266, 275 (2002)). Here, Scafede’s affidavit of probable cause
detailed an interaction in which Turzai told Berard “you can’t have me thrown in jail and
get away with it.” Scafede was aware of the escalating dispute after her review of prior
police reports and the no-contact order that she believed applied to both Turzai and
Berard. The District Court did not err in its finding that the totality of the circumstances,
including the police reports documenting the un-neighborly feud as well as Scafede’s
multiple conversations with Berard, Turzai, Mr. and Mrs. Buck, Novak, and the
Magistrate Judge, led Scafede to the reasonable conclusion that plaintiff probably
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committed the crime of retaliation against a witness. Thus, the District Court correctly
found that there was probable cause to arrest Turzai for retaliation against a witness.
Finally, Turzai contends that the police officers in this case are not entitled to
qualified immunity and the City is liable under the doctrine of municipal liability. The
District Court found that, even if the plaintiff could establish a constitutional violation,
the defendants were entitled to qualified immunity because the plaintiff did not set forth
sufficient evidence to show that it would have been clear to a reasonable officer what the
law required under the facts alleged. We need not discuss Turzai’s qualified immunity
argument because the plaintiff failed to show probable cause was lacking and, therefore,
cannot establish a constitutional violation by any individual defendant.
Based on the foregoing, we will affirm the District Court’s grant of the
defendants’ motion for summary judgment.
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