Robert William MAWSON, Sr., Plaintiff v. The PITTSTON POLICE DEPARTMENT, et al., Defendants, 145 F. Supp. 3d 363

MEMORANDUM MALACHY E. MANNION, United States District Judge Pending before the court is the report of Judge Schwab, (Doc. 90), which recommends that the Court deny the defendant, Officer DiSimone’s motion for

summary judgment because material factual disputes remain. Based upon the court’s review of the record, the court will ADOPT in part and NOT ADOPT in part Judge Schwab’s Report and Recommendation, and therefore partially GRANT the defendant’s motion for

summary judgment on qualified immunity grounds solely in relation to the defendant’s initial decision to stop the plaintiff. I. PROCEDURAL BACKGROUND By way of relevant background, on June 24, 2013, Robert William Mawson, Sr., the plaintiff, filed a complaint' and an application to proceed in forma pauperis. (Docs. 1, 2). The plaintiff was- granted leave to proceed in forma pauperis; however Judge Schwab, after screening the complaint, concluded that it failed to state a claim upon which relief may be granted, but granted the plaintiff leave to file an amended complaint. (Doc. 8).

The plaintiff filed his amended complaint on October 8, 2013, naming the Pittston City Police Department along with five police officers as defendants. (Doc. 9). In his complaint, the plaintiff asserted numerous claims arising from two incidents involving the Pittston City Police Department. Id. Pursuant to this court’s order on July 28, 2014, all but one of the plaintiff’s claims have been dismissed, (Doc. 34), and all defendants except for Officer DiSimone (“defendant”) have been dismissed from the action entirely. Id.

The remaining claim alleges that Officer DeSimone seized the plaintiff in violation of his Fourth Amendment rights, and the plaintiff is seeking compensatory and punitive damages. Id. On August 29, 2014, the" defendant filed his answer to the amended, complaint, denying plaintiffs allegations and asserting numerous affirmative defenses,, including the defense, of qualified immunity. (Doc, 40). After a case management conference was held, (Doc. 42), the parties began discovery. After numerous telephone conferences to resolve discovery disputes and challenges, the parties completed discovery, (Docs. 44-68).

The defendant .then filed a motion for

summary judgment, on January 19, 2015, on the grounds that he is entitled to qualified immunity and that the plaintiff abused his informa paupens status. (Doc. 69). The plaintiff initially filed a brief in' opposition to the ^motion for

summary judgment, but failed to respond to the defendant’s statement of material facts. (Doc.‘ 73). The plaintiff then filed a motion for the court to rule on whether the defendant had improperly withheld discovery. (Doc. "79). Judge Schwab denied the plaintiffs motion and ordered him to file a response to the defendant’s statement of material facts filed in support of the defendant’s motion ' for

summary judgment. (Doc. 83). Finally,- in March..and April of 2015, the plaintiff-filed his response to the defendant’s statement of ..material facts through a. series of submissions < to the court, where, he disputed most facts- presented by the defendant. (Docs. 85-89). Upon completion of briefing' for the defendant’s motion for

summary judgment, Judge Sehwab submitted her report arid recommendation (“R&R”),"which proposed that the motion for

summary judgment be denied. (Doc. 90). The plaintiff timely filed what he titles “Letter/Objections” -in response to Judge Schwab’s R&R on September 16, 2015. (Doc. 91). The defendant filed objections to-the R&R-on September 28, (Doc. 92, 93), and filed-a response to the plaintiffs objections (or “Letters/Ob-jectio'ns”) on September 30,: 2015. (Doc; 94). Finally, on October 5, 2015, the plaintiff filed a response to the defendant’s objections. (Doc. 95). II.

STANDARD OF REVIEW When objections áre timely filed to the report and recommendation of a magistrate judge, the district, court must review de novo those portions of the report to which objections are made. 28 U.S.C. § 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir.2011). Although the standard is de novo, the extent of-review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.2000) (citing United States v.

Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). However, Federal Rule of Civil Procedure 72 states that a “a party may serve and file specific written objections to the proposed findings and recommendations,” Fed.R.Civ.P. 72, and Local Rule 72.3 further explains that objections “shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made arid the basis for such objections.” Local Rule 72.3 (emphasis added).

This requires a party to specifically point to the Magistrate Judge’s arguments, findings, or errors to which he objects and identify the basis for such objection. Id.; Goney v. Clark, 749 F.2d 5, 7 (3d Cir.1984). If a party fails 'to do so, then “a court is not required to áddress those objections.” Pellicano v. Blue Cross Blue Shield Ass’n, No. 11-406, 2012 WL 1828027, at *3 (M.D.Pa. May 18, 2012) aff'd, 540 Fed.Appx. 95 (3d Cir.2013) (citing Reid v. Lawler, No. 085674, 2010 WL 1186320, at *3 (E.D.Pa. Mar. 25, 2010)).

For those sections of the report and recommendation to which no objection is made, the court should, as a matter of good practice, “satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), advisory committee notés; see also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.1987) (explaining judges should give some review to every report and recorhmendation)).

Nevertheless, whether timely objections are made or not, the district' court may accept, not accept, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. ' 28 U.S.C. § 636(b)(1); Local Rule 72.3. III. DISCUSSION Both the plaintiff and the defendant, filed objections to Judge Schwab’s R&R, and each party’s objections will be reviewed by the court in turn. Judge Schwab thoroughly reviewed the. briefs. and statements of material facts , offered by both parties, and made material factual findings noting which facts are disputed- by .the parties. (Doc. 90, pp. 6-12).

The court agrees that these facts are supported by the record and thus ,adopts. and incorporates by reference Judge Schwab’s factual findings for the purposes of this memorandum. Id. A. Plaintiff’s Objections Judge Schwab’s report recommended that the defendant’s motion for

summary judgment be denied,- a favorable result for the plaintiff. Despite the favorable ruling, the plaintiff-filed a document, “Letter/Objections,” that appears to contain objections to Judge Schwab’s R&R. The plaintiff asserted seven (7) numbered objections, (Doc. 91); each will be briefly identified. Objection 1 alleges that the police report prepared by the defendant-regarding the incident from which this action arises was falsified. The second objection argues that the defendant withheld the names of all of the police officers present at the scene during discovery.

Objection 3 claims that there was “in-tence[sic] police intrusion” supported by Debbie Williams’ sworn deposition. (Doc. 91, p. 3). Next, in objection 4, the plaintiff objects to the defendant’s assertion that Dayna Williams is a known drug addict. Objection 5 relates to whether Stefanie’s Bar, the location of the incident, is part of an FBI investigation; the plaintiff states that there is no evidence of this and this fact arose after the close of discovery. In Objection 6, the plaintiff identifies instances of bad faith and deceit on the part of the defendant since this action commenced.

The seventh and final objection complains that the defendant targeted the plaintiff and retaliated against the plaintiff for another pending lawsuit that the plaintiff commenced against the Pittston City Police Department. Throughout his objections, the plaintiff fails to specifically identify any portion of Judge Schwab’s R&R to which he objects; in fact, the plaintiff does not mention the R&R at all. The plaintiff also fails to identify the basis or grounds for each objection, as required by Local Rule 72.3.

All of the objections are either reiterations of previous arguments from the plaintiffs earlier pleadings or facts previously presented in his material facts statements that he wants this court to note (most notably those presented in documents he submitted in opposition to the instant

summary judgment motion), which have already been considered and referenced in the R&R of Judge Schwab. (Docs. 73-75, 79, 85-89); see generally Doc. 91. Given his failure to comply with the Local Rules, the court need not address the plaintiffs objections in its review of Judge Schwab’s R&R, and must solely review the R&R for clear error. The court also notes that the purpose of

summary judgment is not to determine the merits- of the case, but is to determine if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.1990). Here, the defendant moved for

summary judgment on the grounds that he is entitled to qualified immunity and that the plaintiff abused his in forma pauperis status. Judge Schwab found that there existed genuine disputes of material fact and recommended denial of the defendant’s motion for

summary judgment. (Doc. 90). The plaintiffs objections seek to: establish additional factual disputes beyond those identified by Judge Schwab; set forth arguments supporting plaintiffs case on the merits; and complain about discovery disputes. Even if the court were to address the plaintiffs objections, they would have no effect on the outcome of the instant motion. B. Defendant’s Objections Officer DiSimone, the defendant, filed several objections to Judge Schwab’s R&R. (Doc! 92, 93).

Each objection, unlike the plaintiffs objections, points to a particular ruling and portion of the R&R to which the defendant objects and identifies the basis for such objection, in accordance with Local Rule 72.3. The defendant’s objections will thus be reviewed de novo below. 1. Judge Schwab’s

Interpretation of the Facts The defendant first objects to the R&R on the grounds that Judge Schwab “may have misconstrued the facts” by finding that “Mawson never put his hand back in his pockets after giving money to Dayna Williams.” (Doc. 93, p. 12) (emphasis in original). This objection has no merit because Judge Schwab never found that the plaintiff, Robert Mawson, never returned his hand to his pocket after the money exchange with Dayna Williams.

Judge Schwab noted both parties’ versions of the facts describing the money exchange between the plaintiff and Dayna Williams, and then viewed the facts in a light most favorable to the plaintiffs version of the facts, as the plaintiff is the nonmoving party. Judge Schwab’s description of the plaintiffs version of the incident includes the following: “[Mawson] did not shake hands with Suit and he did not put his hand in his pocket, take it out and look at something, and then put his hand , back in his pocket.” (Doc. 90, p. 10).

This description is not a-conclusion that the plaintiff never put his hand back, in his pocket, rather it states that he did not do all the actions as they were described in the defendant’s police report, more specifically that the plaintiff did not do the actions in the particular sequence described. Nowhere in the R&R does Judge Schwab note or conclude that the plaintiff never returned his hand to his pocket, nor did she find that he did return his hand to his pocket. Therefore, the defendant’s objection that Judge Schwab erred in misconstruing the evidence is overruled. 2.

Judge Schwab’s Denial of Qualified Immunity The defendant also raises an objection regarding Judge Schwab’s recommendation that the court deny qualified immunity. The qualified immunity analysis has two prongs. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272, abrogated, in part by Pearson, 555 U.S. 223, 129 S.Ct. 808; Curley v. Klem, 499 F.3d 199, 206 (3d Cir.2007); Williams v.

Bitner, 455 F.3d 186, 190 (3d Cir.2006), One prong of the analysis is whether the facts that the plaintiff has alleged or shown make out a violation of a constitutional right. Id. The other prong of the analysis is whether the right was clearly established, Saucier, 533 U.S. at 201, 121 S.Ct. 2151, or rather whether a reasonable state actor under the circumstances would understand that his conduct violates that right. Williams, 455 F.3d at 191.

The court is permitted to exercise its discretion in deciding which of the two prongs of the' qualified-immunity analysis should be addressed first in light of the circumstances of the particular case. Pearson, 555 U.S. at 236, 129 S.Ct. 808. The defendant objects to the second prong of the qualified immunity analysis: whether the law was clearly established. (Doc. 93, p. 13).

Specifically, in his objection, the defendant argues that the R&R only included a discussion of the clearly established law as it relates to the defendant’s version of the facts, but never analyzed the relevant law as it relates to the plaintiffs version of the facts, or the undisputed facts.

Pursuant to Third Cir•cuit precedent, when undergoing the second prong of the qualified immunity analysis, the court must objectively “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) (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151); see also Gruenke v. Seip, 225 F.3d 290, 299 (3d Cir.Pa.2000).

Because the state actor’s specific conduct must be examined, the court must make “a careful examination of the record.. .to.establish, for purposes of

summary judgment, a detailed factual description of the actions of each individual defendant (viewed in a light most favorable to the plaintiff).” Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir.1996); see also Gruenke, 225 F.3d at 300. Should factual disputes that are material to the qualified immunity analysis remain at the

summary judgment- stage, then Third Circuit precedent requires that the questions of fact go to a jury. Curley v. Klem, 499 F.3d 199, 210 (3d Cir.2007); Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir.2006) (“[W]hen qualified immunity depends upon disputed issues of fact, those issues must be determined by the jury.”); Zorbah v. Sch. Dist., 2014 WL 535242, *6 (E.D.Pa. Feb. 10, 2014) (“[W]hen the issue of qualified immunity requires resolution of factual disputes, the court must defer consideration of immunity until the factual issues are resolved by a jury.”); see also McKoy v.

Carter, 543 Fed.Appx. 231, 235 (3d Cir.2013) (not precedential authority). Judge Schwab, relying on Mon-teiro v. City of Elizabeth, rejected the defendant’s qualified immunity claim under the second prong because it was based upon disputed facts, namely, that the defendant saw “an exchange of money for an object that Mawson secreted in his pocket.” (Doc. 90, p. 22). While the court agrees with Judge Schwab’s analysis of the applicable law and factual disputes, we find that she ended the qualified immunity inquiry prematurely for two reasons.

First, the court must analyze whether the law was clearly established as to the plaintiff’s, the non-moving party’s version of the' facts. If the law is not clearly established as to both the plaintiffs version of the facts and the defendánt’s version' of the facts, then any factual ’ dispute will be immaterial to the qualified immunity analysis, thus warranting

summary judgment on the ground of qualified immunity.’Second, as the defendant asserts in his objections, his qualified immunity argument, under prong two of the analysis, does not depend upon disputed facts; on the contrary, the defendant states that he relies solely upon undisputed facts to establish qualified immunity: that “Officer- DeSimone witnessed a hand-to-hand money exchange at a place known for drug trafficking late in the evening with a known addict.” (Doc. 92, ¶ 6).

If all facts material to the qualified immunity assessment are undisputed, then the court need only determine whether the undisputed facts satisfy the second prong of the analysis. Thus, the defendant’s qualified immunity defense essentially rests upon whether the law is clearly established that a police officer would not have reasonable suspicion to conduct a Terry stop in the following factual scenario: a money exchange with a known drug user, witnessed by an experienced police officer at night, in a high-crime area.

The court will review the law to determine whether this prong of the analysis can be established under the abovementioned, undisputed facts. As stated above, a law is clearly established if a reasonable police officer would know that his conduct in a particular situation violated clearly established law. Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “In other words, ‘existing precedent must have placed the statutory or constitutional question beyond debate,’ ” Reichle v.

Howards, — U.S. —, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011)), in such way that a police officer would be on notice that his conduct violated the law. See Bayer v. Monroe County Children & Youth Services, 577 F.3d 186, 193 (3d Cir.2009).

There need not be a controlling case directly on point, however, the Supreme Court has explained that clearly established law requires “cases of controlling authority.. .at the time of the incident which clearly established the rule on which they seek to rely...[or] a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); Ashcroft, 131 S.Ct. 2074, 2084 (2011) (citing Wilson, 526 U.S. at 617, 119 S.Ct. 1692).

At the time of the alleged violation, the Supreme Court case Terry v. Ohio and its progeny governed the defendant's actions. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Supreme Court in Terry held that law enforcement may conduct brief investigatory stops when an “officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v.

Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868) (emphasis added). “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to .his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. 1868; see also Wardlow, 528 U.S. at 123-24, 120 S.Ct. 673.

This requires “at least a minimal level of objective justification for making the stop.” Wardlow, 528 U.S. at 123, 120 S.Ct. 673; United States v. Brown, 765 F.3d 278, 290 (3d Cir.2014). Objective justification is based upon the totality of the circumstances, which may include an individual’s location, a history of crime in the area, an individual’s nervous behavior and evasiveness, and an officer’s commonsense judgments and inferences about human behavior. Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.2003) (citing Wardlow, 528 U.S. at 124-25, 120 S.Ct. 673; United States v.

Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)); see also United States v. Goodrich, 450 F.3d 552, 561-62 (3d Cir.2006) (holding that an individual’s presence in a high-crime area and the lateness of the hour of the stop are factors that support an inference of criminal activity and a finding of reasonable suspicion). Each of these factors alone may not justify a Terry stop; however, taken together, they may raise the level of suspicion to satisfy the reasonable suspicion standard. Wardlow, 528 U.S. at 124, 120 S.Ct. 673; Goodrich, 450 F.3d at 561.

Finally, police officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative informátion available to them that ‘might well elude an. untrained person.’ ” Arvizu, 534 U.S, at 273, 122 S.Ct. 744 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). In the instant action, the defendant, a police officer trained and experienced in drug deals, was conducting surveillance for suspected drug transactions outside Stephanie’s Bar, a place known for drug trafficking.

The defendant conducted his surveillance at night and observed the plaintiff exchange money with a known drug user outside the bar. In his objections, the defendant states that the “Third Circuit has held that these facts support reasonable suspicion” or probable cause, a much higher standard. (Doc. 93, p. 19). Thus, the defendant concludes that the law is clear not that the defendant’s .behavior was a violation of the Fourth Amendment, but rather that the defendant’s behavior was constitutional.

The defendant first cites to three Court of Appeals cages, two of which come from the Third Circuit, with similar facts that were held to support, reasonable suspicion. (Doc. 93, p. 19). However, upon reviewing these cases, this court concludes that each is distinguishable from the facts relating to the plaintiffs case. Though similar because they involve money exchanges in high crime areas, these cases also include additional significant facts that weigh in favor of reasonable suspicion and are not present in this case. E.g. United States v.

Smith, 282 Fed.Appx. 143 (3d Cir.2008) (finding a money exchange in a high crime area coupled with flight by the suspect and a police chase amounted to reasonable suspicion); United States v. McGlory, 968 F.2d 309 (3d Cir.1992) (finding an exchange of cash between a suspect and a known drug trafficker, who had an established modus operandi, in a high-crime location, late at night amounted to reasonable suspicion); United States v.

Williams, 139 F.3d 628, 630 (8th Cir.1998) (finding that an experienced narcotics officer had reasonable suspicion to stop the defendant when .he observed an exchange of money for an object between a suspected drug trafficker in a high-crime area, at night). The defendant claims that “many courts” have found that officers had probable cause, an even higher standard, to arrest under similar circumstances. (Doc. 93, p. 20-21). However, the cases that defendant cites, which are all' from outside this circuit, are factually distinct and simply cloud the analysis as to what constitutes reasonable suspicion.

See, e.g., Smith v. Tobon, 529 Fed.Appx. 36, 39 (2d Cir.2013) (not-precedential); United States v. Burciaga-Burciaga, 147 Fed.Appx. 725, 730 (10th Cir.2005); United States v. White, 655 F.2d 1302, 1304 (D.C.Cir.1981); United States v. Roland, 2012 WL 74989, at *5 (S.D.N.Y. Jan. 10, 2012); United States v. Garcia, 2010 WL 1416993, at *4 (D.Minn. Mar. 22, 2010), report and recommendation adopted, 2010 WL 1416984 (Apr. 7, 2010), aff'd, 646 F.3d 1061 (8th Cir.2011); United States v. Washington, 2003 WL 21250681, at *3 (S.D.N.Y. May 29, 2003).

Though the listed cases have many factual distinctions — ranging from the presence of informants’ tips, controlled purchases,' to targeted surveillance — the most notable .difference between all of the cases and the present action, is that the police agents in these cited cases observed money exchanged for an object. The undisputed facts in this case do not include money exchanged for any object at all.

In addition, the defendant cites to a Supreme Court opinion denying certiorari, in which the dissent states that probable cause would be present when a police officer observes a hand-to-hand drug deal in a high-crime area. (Doc. 93, p. 21 (citing Pennsylvania v. Dunlap, 555 U.S. 964, 129 S.Ct. 448, 172 L.Ed.2d 321 (2008)). This opinion once again notes that the police officer observed money exchanged for an object, which is not the case here. Moreover, the Supreme Court opinion cited is a dissent, which is non-binding upon this court and this jurisdiction.

Ultimately, there is an abundance of case law explaining and identifying what constitutes “reasonable suspicion” under slightly similar circumstances. However, in our review of the both the relevant case-law and the case-law presented by the defendant, this court was unable to locate a case whose facts were directly analogous. Many cases,- as mentioned above, included similar facts, but none contained the same or nearly the same combination of relevant facts as those present in the plaintiffs case, such that a -police officer would definitively conclude that his actions were a violation of the Fourth Amendment.

Though .this court did not find binding or strongly persuasive authority expressly prohibiting a Terry stop under analogous factual circumstances, this court also did not, as the defendant would like the court to believe, find binding or strongly persuasive authority establishing that these facts clearly amount to reasonable suspicion or probable cause. Thus, the law regarding Terry investigative stops at the time of the incident as it pertains to the specific, undisputed facts of this case is not clearly established.

No binding precedent and no clear consensus amongst persuasive authority demonstrates that- the defendant should have known that his actions violated clearly established law under the -circumstances. While Judge Schwab was correct to note that factual disputes remain, the defendant’s decision to conduct á Terry stop on the night in question was based upon undisputed material facts.

No factual disputes remain that are material to the qualified immunity analysis, therefore, regardless of which version of the' facts is analyzed, the defendant is entitled to qualified immunity for his decision to stop' the plaintiff because his actions do not violate clearly established law. 3. The Law Does Not Clearly Establish that the Stop Was De Minimis The defendant next objects to Judge Schwab’s determination that the Terry stop was not de minimis.

The defendant states that Judge Schwab relied upon this court’s ruling on the motion to dismiss and failed to analyze “whether the law is clear that the stop rose above the de minimis level.” (Doc. 92, p. 4); (Doc. 93, p. 22). Unlike the motion to dismiss, the defendant argues that the instant motion for

summary judgment is based on the defendant’s alleged qualified immunity status and must be examined within that context. The defendant would like this court to find a lack of clearly established law such that the defendant’s conduct during the Terry stop on the night of the incident would fail to satisfy prong two of the qualified immunity analysis, and would therefore entitle the defendant to qualified immunity for the scope and quality of the stop.

The defendant concludes that Judge Schwab erred by failing to analyze whether the case-law clearly establishes that the circumstances in this case rise above the de minimis threshold. As stated in Terry v. Ohio, an investigative or Terry stop must undergo a dual inquiry to determine its reasonableness: “whether the officer’s action was justified at its inception, arid whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (quoting Terry v.

Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Up to this point, the court has discussed the first part of the inquiry, whether the defendant is entitled to qualified immunity for his initial decision to conduct an investigative stop of the plaintiff. The court now must analyze the scope of that investigative stop and whether the law was clearly established that the scope and quality of the stop clearly constituted a violation of the Fourth Amendment.

Again, for the purposes of qualified immunity, the court must determine whether the facts — taken in the light most favorable to the non-moving party — establish a violation of clearly established law and that a reasonable officer would know his actions to be in violation of such law. See supra. The relevant facts are heavily disputed by both parties, and unlike the previous analysis regarding initiation of the stop, , the defendant does not solely rely on undisputed facts to establish qualified immunity.

The relevant facts, taken in the light most favorable to the plaintiff, the non-moving party, were set forth by Judge Schwab as follows: According to Mawson, DeSimone approached him, blocked his car in, and said “Empty your pockets,” to which Mawson responded no and said that De-Simone was harassing him because he had'filed a civil suit against the police department. Doc. 87 at 7. Mawson contends that DeSimone .then again ordered him to empty his pockets, and when he was momentarily quiet, DeSimone called for back up. Id.

Mawson then reached into his pocket, removed his wallet from his pocket, opened his- wallet, and showed it to DeSimone. Id. According to Mawson, DeSimone then ordered Maw-son to give him his I.D., and DeSimone took Mawson’s I.D. and ran a lengthy warrant check on everyone. Id. at ¶¶ 7-8. Mawson contends that it was during a warrant check on Suit that DeSimone discovered that there was a warrant for Suit and that DeSimone had called for back up before he discovered the warrant for Suit. Id. at ¶ 8.

Further, although DeSimone contends that two back up officers arrived, Mawson contends that more than two back , up officers arrived. Id. Further, whereas DeSi-mone contends that encounter lasted only about a half an hour, see doc. 76 at 10, Mawson points to the deposition testimony of Edward Matyjevich that the encounter lasted nearly an hour. See Doc. 73 at 16; Doc. 73-4 at 29. The law as it applies to the plaintiffs version of the facts clearly provides that the length, intensity, and nature of the stop may establish a Fourth Amendment violation. Terry v.

Ohio provides that after initially stopping an individual, the scope of the stop must be “strictly tied to and justified , by the circumstances which rendered its initiation permissible.” Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (internal quotations and citations omitted). The Supreme Court further explained in Florida v. Royer that “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

And, the Supreme Court again examined the scope of an investigative Terry stop in United States v. Place; the Court stated “in assessing the effect of the length of the detention, we take into account whether the police diligently pursue[d] their investigation.” United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (holding luggage over ninety minutes was a prolonged seizure and exceeded limits of investigative stop under Terry). Finally, the Supreme Court, in United States v.

Sharpe, synthesized the holdings of Terry, Royer, and Place to articulate a clear rule regarding the duration and scope of investigative stops: In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm' or dispel their suspicions quickly, during which time it was necessary to detain the defendant.

A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (citations omitted) (Court held that a detention of defendant for 20 minutes while original officer waited for a narcotics officer to arrive and defendant’s attempts to evade the narcotics officer contributed to delay was reasonable).

This inquiry requires the court to take into account the -totality of the circumstances. .The Third Circuit has applied this rule and more explicitly provided that “[i]n considering whether a stop is so minimally intrusive as to -be justifiable on reasonable suspicion, courts consider the duration of the stop, the law enforcement purposes justifying the stop, whether the police diligently sought to carry out those purposes given the circumstances; and alternative means by which the police could have served their purposes.” United States v. Leal, 235 Fed.Appx. 937, 941 (3d Cir.2007).

Furthermore, while the Supreme Court has acknowledged that “[t]here is, of course, a de minimis level of imposition with which the Constitution is not concerned,” Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), few courts have applied the doctrine and even fewer come from the Third Circuit. See United States v. Hernandez, 418 F.3d 1206, 1212 n. 7 (11th Cir.2005) (“Of trifles the law does not concern itself: De minimis non curat lex.”); United States v. Broomfield, 417 F.3d 654, 656 (7th Cir.2005); Ford v. Wilson, 90 F.3d 245, 248 (7th Cir.1996).

Viewing the plaintiffs version of the facts, an hour long detention of the plaintiff is not a brief, momentary seizure. As soon as the plaintiff emptied his pockets, the defendant became aware that the plaintiff did not have possession of any drugs as a result of the monetary exchange. Because the defendant’s investigative stop was premised upon his “reasonable suspicion” that a drug transaction had occurred between the plaintiff and the two others with whom he was standing, once the defendant became certain that the plaintiff did not have any drugs, his suspicions concerning the drug transaction were dispelled.

Without additional facts to establish a new or renewed reasonable suspicion after the plaintiff emptied his pockets, the defendant has failed to demonstrate that he had a lawful purpose in detaining the plaintiff for nearly one hour. In addition, there are no facts presented by the parties to indicate that the defendant in any way feared for his safety and detained the plaintiff to avoid risk of immediate harm. The law clearly establishes that this factual pattern constitutes an unreasonable seizure in violation of the Fourth Amendment.

The law does not, as the defendant argues, establish that these facts constitute a de minimis violation. In fact, the defendant has not presented the court with any case that establishes a de minimis constitutional injury resulting from an hour long Terry stop, never mind resulting from a Terry stop where the defendant’s suspicion was quickly dispelled and the plaintiff was innocent of wrongdoing. Once again, in support of the his de minimis argument, the defendant “cite[s] a bevy of cases outside of this circuit and also analogize[s] malicious prosecutions claims from within this circuit.” (Doc. 33, p. 20).

None of the cases cited contain analogous facts to the present action, and none of the cases cited clearly establish a de minimis violation. This court finds that the facts taken in the light most favorable to the plaintiff may establish a violation of the Fourth Amendment that is actionable and not de minimis. In addition, the length of detention as well as other pertinent facts are disputed by both parties, such that the defendant might be entitled to qualified immunity under his version of the facts. Because these factual disputes are material to the qualified immunity analysis, the Third Circuit requires that

summary judgment be denied and the questions of fact go to a jury. See Curley v. Klem, 499 F.3d 199, 210 (3d Cir.2007). Therefore, the defendant’s objection on the grounds that the law is unclear as to whether the scope and extent of his actions during the stop of the plaintiff constitute a de minimis violation is overruled, and the defendant’s motion for

summary judgment on the ground that he is entitled to qualified immunity is denied as it relates to the scope and extent of the Terry stop. 4. The Plaintiffs Claim Was Not Economically Frivolous The defendant asserts that while Judge Schwab found that the plaintiffs claims are not substantively frivolous, she “failed to address [the defendant’s] argument that Mawson’s claim' is economically frivolous.” (Doc. 93, p. 26) (emphasis in original). The defendant states that the claim is economically frivolous because “a normal person would not spend $400 to file suit” in a case such as this one. (Doc. 93, p. 28). In cases where litigants proceed in forma pauperis,

Section 1915(e)(2) of the United States Code requires the court to “dismiss the case at any time if the court determines that ... the action or appeal ... is frivolous or malicious.” 28 U.S.C. § 1915(e)(2). An action is frivolous where “the court determines that the claim is: (1) of little or no weight; value, or importance; (2) not worthy of serious attention; or (3) trivial.” Deutsch v. United States, 67 F.3d 1080, 1082 (3d Cir.1995).

For the purposes of a frivolousness determination, a litigant’s claim is trivial when, the record supports a finding that a reasonable paying litigant would not have filed the same claim after considering the costs of suit. Accordingly, the court must first’ find the actual amount in controversy under the claim presented and determine whether the amount in controversy is less than the expense of the court costs and filing fees. If the court so determines, then the claim is a candidate for dismissal as frivolous under § 1915(d).

The court must next determine whether the litigant has a meaningful nonmone-tary interest át stake under the claim, such that service of the complaint and an allocation of the court’s resources for its adjudication is warranted, despite the fact that the claim is economically trivial. If, in addition to finding that the amount of damages in controversy is less than the court costs and filing fees, the court is satisfied that there is no other meaningful interest at stake, then the suit is frivolous within the meaning of § 1915(d). Deutsch, 67 F.3d at 1089-90.

Moreover, Third Circuit has held: when there is “doubt as to whether the actual amount in controversy is economicálly trivial, or [] doubt as to whether the claim is meaningful, then the plaintiff must be given the benefit of that doubt, for we do not intend that courts use monetary worth as an excuse to brush legitimate grievances aside.” Id. at 1091. Here, the defendant simply states that the $400 filing fee is less than the amount in controversy and is an amount that no reasonable person would spend on this lawsuit. However, both the defendant’s brief supporting his motion for

summary judgment and his objections to the R&R fail to include any evidence to support a finding that the plaintiff has no “meaningful nonmonetary interest at stake.” The plaintiff,- on the other hand, provides ample support demonstrating that he has a meaningful nonmonetary interest. He states throughout his submissions to the court that his Fourth Amendment Rights were violated and he deserves compensation; and, in his reply to the defendant’s objections, the plaintiff emphasizes the stress and hardship he has undergone as a consequence of the.- defendant’s actions. (Doc. 95, p. 14).

The court overrules the defendant’s objection and adopts Judge Schwab’s conclusion that this action is not frivolous under 28 U.S.C. § 1915(e)(2). 5. Plaintiffs Claim Was Not Malicious Finally,,,the defendant objects to Judge Schwab’s determination that the plaintiffs action is not malicious under, 28 U.S.C. § 1915(e)(2). The defendant supports this contention by noting that Judge Schwab failed to properly analyze the term “malicious” and failed to review the.plaintiffs history of frivolous suits. (Doc. 93, p. 28).

Though Judge Schwab did not explicitly define the term and the legal standard, this court agrees with her .application of the law and conclusion that the plaintiffs current action ’ is not, per se, malicious. As mentioned above, the court is compelled to dismiss an action commenced by a litigant in forma pauperis “if the court determines that ... the action or appeal ... is frivolous or malicious.” 28 U.S.C. § 1915(e)(2).

To determine whether an action is -malicious, courts must “engage in a subjective inquiry into the litigant’s motivations at the time of the filing of the lawsuit to determine whether the action is an attempt to vex, injure or- harass the defendant.” Deutsch v. United States, 67 F.3d 1080, 1086 (3d Cir.1995). Several district courts within the Third Circuit further explain that courts must look- to whether the litigant has engaged in repetitive litigation and relitigation of claims from prior cases when examining maliciousness. See, e.g., Alford v. Laquise, No. 3:14-CV-13, 2014 WL 3368874 (M.D.Pa.

July 9, 2014) aff'd, 604 Fed.Appx. 93 (3d Cir.2015); Pickering-George v. United States Attorney’s Office, No. 13-126-SLR, 2013 WL 1897841 (D.Del. May 7, 2013), aff'd sub nom. Daley v. United States Attorneys Office, 538 Fed.Appx. 142 (3d Cir.2013); Trader v. R.S., No. 11-0039 PGS, 2011 WL 1666931, at *2 (E.D,Pa. May 2, 2011) (“[A] complaint is malicious.. .if it is repetitive or evidences an intent to vex the defendants or abuse the judicial process by relitigating claims decided in prior cases.”); Fiorani v.

Hewlett Packard Corp., 547 Fed.Appx. 103, 105 (3d Cir.2013) (“Repetitive litigation undoubtedly is some evidence of a litigant’s motivation to vex or harass a defendant! where it serves no legitimate purpose.”) (unpublished opinion). In support of a finding of maliciousness, the defendant points to the plaintiffs myriad “unnecessary filings” that “flooded” the docket. (Doc. 93, p. 28). However, maliciousness is determined by the motivation of a litigant at the time of filing the lawsuit, not his motivation for filing documents after commencement and throughout the lawsuit. Deutsch, 67 F.3d at 1086.

Therefore, the volume and alleged frivolousness of the plaintiffs filings throughout the case have little or no weight in determining maliciousness. In reviewing prior actions commenced by the plaintiff, this court does not find that these actions evidence an intent to vex or harass the defendants or abuse the judicial process in this case. The first three cases cited by the defendant in his objections dealt with issues arising from custody of his children and were not (as the defendant suggests) dismissed due to frivolousness. Mawson v.

Court of Common Pleas of Luzerne Cnty., PA, 229 Fed.Appx. 185, 186 (3d Cir.2007); Mawson v. Lamoreaux, No. 3:12-cv-2413, 2013 WL 451865, at *1 (M.D.Pa. Feb. 6, 2013); Mawson v. Bellino, No. 3:12-cv-2422 (Dec. 5, 2012), report and recommendation adopted (M.D. Pa. Feb. 28, 2013). Mawson v. Court of Common Pleas was dismissed for failure to state a claim because the defendant was not a legal entity for the. purposes of § 1983 liability, and Mawson v. Lamo-reaux was dismissed because the plaintiff failed to establish subject matter jurisdiction. The defendant also cited Mawson v.

Bellino, wherein the court dismissed the complaint for lack of federal jurisdiction, but specifically noted that the plaintiff may have legal remedies and should refile the complaint in state court. Mawson v. Bellino, No. 3:12-cv-2422 (Dec. 5, 2012), report and recommendation adopted (M.D. Pa. Feb. 28, 2013). The facts arising from these three prior actions are distinct from those at issue in this case, as they relate to child custody matters.

Finally, the last two cases cited by the defendant occurred over fifteen years prior, to this case and dealt with completely distinct facts; at the time of these cases, the' plaintiff was an inmate at Lackawanna County Prison complaining about unconstitutional prison conditions. Mawson et al. v. Fedorchak et al., No. 1:98-cv-01799 (M.D. Pa. July 2, 1999) (defendants motion for

summary 'judgment granted and case closed); Mawson v. Ross, No. 1:98-cv-1628 (M.D. Pa. Nov. 18, 1998) (dismissed as frivolous, but without prejudice to the filing of a habeas corpus petition against a proper respondent after exhaustion of state court remedies). Of all the cases filed by the plaintiff,. the only case that was deemed frivolous was Mawson v. Boss, a prisoner complaint from 1998. This, alone, does not indicate a history of frivolous lawsuits that would support maliciousness in filing, the instant action.

All five of these prior cases raise facts that are completely distinct from the facts of this case, and thus do not constitute repetitive litigation or relitigation of prior claims. Judge Schwab’s'conclusion was correct that without any evidence to demonstrate that the plaintiff brought “this claim in an attempt to vex, injure, or harass the defendant,” his history of litigation “does not show that Mawson’s current claim is malicious.” (Doc. 90, p. 14). The defendant’s objection that the current claim should be dismissed for maliciousness is overruled.

The court has reviewed Judge Schwab’s analysis of the material facts in this case as well as her conclusions. The court agrees, substantially, with the sound reasoning that led Judge Schwab to the conclusions in her report. However, upon reviewing the plaintiffs and the defendant’s objections, the court partially departs from Judge Schwab’s recommendation and finds that the defendant is .entitled to qualified immunity insofar as it relates to the defendant’s initial stop of the plaintiff.

However, the defendant is not entitled to qualified immunity for his subsequent actions contributing to the scope and duration of the stop. IV. CONCLUSION For the foregoing reasons, the R&R issued by Judge Schwab, (Doc. 90), is ADOPTED IN PART and NOT ADOPTED IN PART as noted above. An appropriate order'shall issue. .

The plaintiff also filed a “letter” to the court in which he attached his previously submitted response to the defendant’s objections,,'and also attached a document entitled, “The Plaintiffs Responce to Defendants Objection to the Plaintiffs Partial Objection Filed Sept 16, 15.” (Doc, 96, pp. 32-46 (sic)). This attachment includes a stamp from the clerk’s office dated .October 6, 2015; however, the document was not filed in the docket until October 16, 2015 as part of Doc. 96. .

The defendant objects that it “appears that the Magistrate Judge may have misconstrued the facts;” (Doc. 92, ¶ 1-2) (emphasis added); however, his

interpretation is incorrect, as will be discussed below -in the court’s review of the defendant’s objections. . Note that the plaintiffs first objection relating to falsification of the police report does not point to or identify a specific portion of the R&R, however, the objection does correspond to a specific finding by Judge Schwab in footnote 2 of the R&R. In addition, the defendant, in his response to the objections, addresses the falsification issue. (Doc. 94, p. 2). Therefore, in an abundance of caution the court will review Judge Schwab’s footnote 2 finding de novo.

This court finds the conclusion correct and adopts the finding that "[tjhere is no basis for a reasonable trier o[fj fact to conclude that the reports in this case were falsified.’’ (Doc. 90, p. 7). The absence of the police officer's signature on a police report does not render it false, and the markings on the bottom of the page noted by Judge Schwab and the defendant, are clearly and indisputably facsimile and printing annotations. The plaintiff presents no evidence or affidavits that would create a genuine dispute or on that basis would lead one to reasonably conclude that the police report is false. .

The plaintiffs response to the defendant’s objections is consistent with the court’s conclusion. The plaintiff asserts that he disputes that the actions enumerated above occurred at one time, in sequence, but does not dispute that the plaintiff never returned his hand to his pocket. (Doc. 95, p. 6). . The court declines to make a finding that the plaintiff did return his hand to his pocket, because the defendant's evidentiary support for such contention was not provided to Judge Schwab in any of the defendant’s submissions to the court supporting his motion for

summary, judgment. This evidence has only been submitted to this' court as part of the defendant’s objections. (Doc. 93, Ex. 1). Thus, the Magistrate Judge had no opportunity to review the evidence in preparing the R&R. . The defendant, in his objections, accurately notes that all his submissions. to the court relating to qualified immunity solely rely upon facts that are undisputed. (Doc. 93, p. 14 (citing Doc. 71, pp, 10-14; Doc. 76, pp. 1-5)).

The only potentially disputed fact that the defendant references in support of his argument for qualified immunity is the fact that the incident occurred "after midnight.” See Doc. 71, p. 11. The plaintiff, on the other hand, provided affidavits that indicate that the incident took place "at night” rather than after midnight. (Doc. 87, ¶¶ 2, 4).

While Judge Schwab correctly states in the R&R, "at night” and "after midnight” are not necessarily inconsistent or disputed, (Doc. 90, p. 9, footnote 4), this court will view the facts in the light most favorable to the plaintiff and treat the incident as occurring "at night” for the purposes of qualified immunity. . The closest this court came to finding a case to support the plaintiffs claim that the defendant clearly did not have reasonable suspicion was the district court Opinion United States v. McCray. United States v. McCray, 148 F.Supp.2d 379, 387-88 (D.Del.2001).

In McCray, two police officers observed two individuals stánding near a loiterer who was known for drug activity in a high-crime area, but the officers did not observe any exchange or any objects pass between the parties. Id. at 387-88, The court determined that these facts, “without more, merely constitute[ ] an ‘inchoate and unparticularized suspicion,’ and cannot justify a Terry stop.” Id. However, McCray is distinguishable in a significant way, namely, the fact the individuals were solely in close proximity and there was no exchange of any kind.

In the instant case, the suspected individuals, including the plaintiff, were standing and talking together and exchanged money. While the facts in McCray do not amount to reasonable suspicion, the additional facts in the instant case — i.e. existence of an observed monetary exchange — may raise the level of suspicion beyond the constitutional threshold. . In fact, the defendant does not cite or rely upon any facts to support his assertion that the stop was de minimis. (Doc. 93, pp. 22-26). .

The court finds, upon viewing the facts in the light most favorable to the plaintiff, that the plaintiff was seized for the purposes of the Fourth Amendment. A person has been seized, "if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The controlling test is "whether the officer’s words and actions would have conveyed that [the person was not free to leave] to a reasonable person.” California v.

Hodari D., 499 U.S, 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); see also United States v. Brown, 448 F.3d 239, 245 (3d Cir.2006). The following facts demonstrate that a reasonable person in plaintiff’s position would not feel free to leave: the defendant’s police vehicle blocked the plaintiff’s car; the defendant demanded that the plaintiff "empty his pockets;” the defendant called and received the aid of at least two back up officers; and the defendant gained possession of and held onto the plaintiff’s identification.

As soon as the plaintiff complied. with the defendant’s demand that he empty his pockets, thus, submitting to the officer’s authority, the stop constituted a Fourth Amendment seizure. . In Mawson v. Lamoreaux, the court specifically dismissed the claim without prejudice so that the plaintiff may correct deficiencies and refile the complaint.