2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-12-2012

Rosa Perez v. Borough of Berwick

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1695

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Rosa Perez v. Borough of Berwick" (2012). 2012 Decisions. Paper 49.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/49
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-1695

_____________

ROSA PEREZ, Individually and o/b/o W.P. and L. P., Minors;

ELVIS PEREZ; W. P.; L. P.,

 

Appellants

v.

BOROUGH OF BERWICK; HEATHER ROOD; COLOMBIA COUNTY; TROY 

MANEVAL; ROGER BODWALK; GREG MARTIN; CHRISTOPHER WILSON; 

KIMBERLY MULLINGS; DAVID CHRISTINO; TWO UNKNOWN AGENTS OF 

THE BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT; 

STEVE LEVAN; TIFFANY PANETTA; PATRICK CAWLEY

_____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(No. 4:07-cv-02291)

District Judge: Hon. Robert D. Mariani

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 15, 2012

Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.

(Filed: December 12, 2012)

____________

OPINION

____________

CHAGARES, Circuit Judge.
2

Rosa Perez, individually and on behalf of then-minors W.P. and L.P., and Elvis 

Perez — collectively, “the Perez family” — appeal the grant of summary judgment to all 

defendants in a civil rights lawsuit brought in the United States District Court for the 

Middle District of Pennsylvania. Although the District Court found that the Borough of 

Berwick, Columbia County, and individual officers from those localities and from the 

Immigration and Customs Enforcement Agency did violate the Perez family‟s Fourth 

Amendment rights, the District Court held that no remedy could be granted pursuant to 

42 U.S.C. § 1983. The court made this determination because it found that the Perez 

family failed to establish a policy or custom on the part of Borough of Berwick and 

Columbia County, because Columbia County is entitled to immunity from suit in federal 

court pursuant to the Eleventh Amendment of the United States Constitution, and because 

the individual officers and agents sued were entitled to qualified immunity. For the 

following reasons, we will affirm in part, and vacate and remand in part.

I.

Because we write solely for the parties‟ benefit, we recite only the facts essential 

to our disposition. The Perez family initiated this lawsuit after officers from the Borough 

of Berwick Police Department (“Berwick”), Immigration and Customs Enforcement 

(“ICE”), and the Columbia County Adult Probation and Parole Department entered their 

home on March 21, 2007 to execute bench and administrative warrants on different 

individuals who allegedly lived there. The Perez family‟s complaint, brought pursuant to 

42 U.S.C. § 1983, alleged that the family‟s right to be free from unreasonable searches, 

guaranteed by the Fourth Amendment to the United States Constitution, was violated by 
3

the following entities and individuals: Berwick; Columbia County; individual ICE 

agents1 Kimberly Mullings and David Christino; individual Berwick Police Officers 

Heather Rood-Comstock (“Rood”), Troy Maneval, Roger Bodwalk, Steve Levan, Greg 

Martin, and Christopher Wilson; and individual Columbia County Adult Probation and 

Parole Officer Tiffany Panetta. The District Court found that the entry into the Perez 

family‟s home was unconstitutional because it involved execution of administrative and 

bench warrants only for “summary offenses and low grade misdemeanors,” Appendix 

(“App.”) 36, at the family‟s private residence at an hour well before dawn.2The Perez 

family also contended that its constitutional rights were violated because the officers and 

agents allegedly failed to knock and announce themselves before entering the home, and 

because several officers and agents allegedly entered in an unnecessarily prolonged and 

violent manner, with at least some of the agents and officers wearing masks and drawing 

their guns on the unarmed Perez family. The District Court did not directly address these 

claims.

Despite the finding of a constitutional violation, the District Court granted

summary judgment for all defendants (and, consequently, also denied the Perez family‟s 

own motion for summary judgment) because it found that all defendants were entitled to 

qualified immunity. The Perez family filed a motion for reconsideration only on the 

 

1

Pursuant to the Servicemembers Civil Relief Act, the Perez family voluntarily moved to 

dismiss ICE agent Cawley when he was called upon to serve overseas in early 2011. The 

motion was granted and Cawley was dismissed from the case on June 14, 2011.

2

The Perez family claimed the entry occurred at 4:00 a.m., while the defendants argued

that it took place at 5:00 or 5:30 a.m. The District Court properly took the facts in the 

light most favorable to the Perez family, adopting 4:00 a.m. as the time of entry. App. 5.
4

grounds that Berwick and Columbia County are not eligible for qualified immunity. The 

District Court recognized its error in having ruled that these entities received qualified 

immunity, but maintained that summary judgment should be granted as to Berwick 

because the Perez family failed to show, as required by Monell v. Department of Social 

Services, 436 U.S. 658 (1978), that Berwick followed a policy or practice of performing 

the kind of unconstitutional execution of warrants experienced by the Perez family. The 

District Court also found that Columbia County had been erroneously granted qualified 

immunity, but that it was nevertheless entitled to immunity from suit under the Eleventh 

Amendment to the United States Constitution because it concluded that the Probation and 

Parole Department of Columbia County is a branch of the Commonwealth of 

Pennsylvania, rather than an agency of Columbia County.

The Perez family appeals on the grounds that the District Court erred in finding no 

genuine issue of material fact as to the Perez family‟s Monell claim, and also erred in 

finding that Columbia County was entitled to immunity from suit in federal court. The 

Perez family also contends that genuine issues of material fact exist as to whether the 

individual officers acted reasonably in light of clearly established law, such that they 

should receive qualified immunity from liability for the constitutional violations found by 

the District Court. Finally, the Perez family argues that their constitutional rights were 

violated in additional ways not recognized by the District Court — namely, by the 

officers‟ failure to comply with the knock-and-announce requirement, the protracted and 

violent nature of the entry, and the officers‟ unlawful search of the home.

II.
5

The District Court had jurisdiction pursuant to 28 U.S.C. § 1343(a), and we have 

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District 

Court‟s grant of summary judgment. Lawrence v. City of Philadelphia, 527 F.3d 299, 

310 (3d Cir. 2008). Accordingly, we view the evidence in the light most favorable to the 

Perez family and draw all justifiable, reasonable inferences in their favor. Id. We affirm 

only if there is no genuine issue of material fact with respect to one or more elements of 

the Perez family‟s claim and if the defendants are entitled to judgment as a matter of law. 

Id.; Fed. R. Civ. P. 56(a).

A.

We will begin with the District Court‟s finding that the Columbia County 

Probation and Parole Department receives immunity from this federal lawsuit pursuant to

the Eleventh Amendment because the Probation and Parole Department is “not part of 

Columbia County,” but rather “an agency of the Commonwealth” of Pennsylvania. App. 

33-34. As this Court has pointed out, “the Eleventh Amendment applies to suits against 

subunits of the State.” Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 551 F.3d 193, 

198 (3d Cir. 2008) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 

(1984)). Moreover, “[w]e have held that Pennsylvania‟s judicial districts, including their 

probation and parole departments, are entitled to Eleventh Amendment immunity.” 

Haybarger, 551 F.3d at 198. 

The Perez family‟s Second Amended Complaint names Columbia County — not 

the Columbia County Probation and Parole Office — as a defendant, and avers that 

“Defendant Columbia County is a municipality within the Commonwealth of 
6

Pennsylvania that, at all times relevant hereto, operated the Columbia County Probation 

Department.” App. 1220. However, Columbia County denied this claim in its answer, 

stating that “it is specifically denied that Columbia County operated the County Probation 

Department with respect to the allegations of the Second Amended Complaint,” and 

asserting that “Defendant Panetta was acting as an officer of the court, which is a branch 

of the state for purposes of the alleged claims.” App. 1288. This assertion is supported 

by the rule this Court articulated in Benn v. First Judicial District of Pa., 426 F.3d 233,

241 (3d Cir. 2005) (holding that Pennsylvania‟s Judicial Districts are entitled to 

immunity from suit under the Eleventh Amendment), which we underscored in 

Haybarger, 551 F.3d at 198 (elucidating that the Judicial Districts‟ immunity from suit

extends to probation offices as well). The fact that Probation Officer Panetta testified 

that she “work[ed] for Columbia County as a probation/parole officer,” App. 493, does 

not change that Pennsylvania probation and parole departments are legally part of the 

Commonwealth‟s Unified Judicial District. Accordingly, if the Columbia County 

Probation Office is, indeed, the entity the Perez family sued in the instant matter, we 

conclude that it is entitled to immunity from suit. 

Alternatively, we conclude the Perez family improperly named the municipality of 

Columbia County as a defendant in this lawsuit, since the municipality took no actions in 

the allegedly unconstitutional entry underlying the instant matter. The Perez family

appears to dispute that the municipality of Columbia County had no involvement in the 

March 21, 2007 entry into their home, arguing that Panetta worked for and was an agent 

of Columbia County, which had an unconstitutional policy of executing bench warrants 
7

in the middle of the night. Therefore, they claim, the county is liable under Monell v. 

Department of Social Services. See 436 U.S. at 691 (holding that, although 

municipalities are “persons” within the meaning of 42 U.S.C. § 1983, no municipal 

liability lies under that statute “unless action pursuant to official municipal policy of 

some nature caused a constitutional tort”). The Perez family presents testimony that “the 

policy of Columbia County” is that “[a] bench warrant can be served anytime 24/7.” 

Perez Br. 20. However, despite being characterized as “Columbia County‟s testimony,” 

that statement was actually given by Panetta, even though the very fact it seeks to prove

is whether Panetta‟s actions and testimony can be attributed to Columbia County — that 

is, whether Panetta can be considered an agent of Columbia County. Id. As a result, we 

conclude that summary judgment was properly granted to the Columbia County 

defendant, regardless of whether the defendant named by the Perez family is the 

Columbia County Probation Office, or the municipality of Columbia County. We hold 

that Panetta was not an agent of the municipality when she entered the Perez family 

home, as the Perez family points to no evidence that would rebut the Columbia County 

defendant‟s assertion — and this Court‟s law — that a probation officer works for a unit 

of the state, even if the probation office has the name of a county in its title. 

B.

The Perez family further argues that the District Court erroneously granted 

summary judgment on its § 1983 claim against Berwick. The District Court found that 

the Perez family failed to show a genuine issue of material fact as to the existence of a 

Berwick policy or practice of allegedly unconstitutional conduct, so that the Perez 
8

family‟s municipal liability claim against Berwick was deficient under Monell. 

Moreover, the Perez family also appears to be raising a question as to exactly what 

constitutional violation the District Court found. 

In its December 29, 2011 opinion granting summary judgment to the defendants, 

the District Court analyzed the following factors to conclude that Berwick (and other 

defendants) had violated the Perez family‟s constitutional rights: “(1) time of the service 

of the warrants, (2) the fact that an arrest was made . . . , (3) the existence of any exigent 

circumstances, . . . and (4) the absence of a finding by a neutral magistrate that a 

nighttime execution was reasonable.” App. 19. In particular, the District Court focused 

on the fact that the entry took place at 4:00 a.m., explaining that “[t]he Supreme Court‟s 

long established jurisprudence . . . indicates a clear preference against the execution of 

warrants in the middle of the night.” App. 20-21. The Perez family points to evidence 

showing that Berwick did, indeed, maintain “policies or customs permitting the execution 

of bench and arrest warrants for misdemeanors and summary offenses any time day or 

night.” App. 37. Specifically, the Perez family presented the following testimony from 

the deposition of Berwick‟s chief of police: “Q: „Is it the policy of the Borough of 

Berwick that arrest warrants and bench warrants can be served any time day or night?‟ 

A: „Yes.‟” App. 1106.

However, as the District Court underscored in its February 10, 2012 memorandum 

opinion, its December 29, 2011 opinion “did not find Pennsylvania Rules of Criminal 

Procedure 431(A)(1) and (2), which permit the execution of bench warrants at any time, 

constitutionally impermissible.” App. 35. Rather, the District Court came to the 
9

“narrow” conclusion, “premised upon specific facts,” that “Berwick enforced an 

otherwise constitutional practice with regard to enforcement of arrest or bench warrants 

in circumstances rendering the otherwise lawful practice impermissible.” App. 35-36. 

We agree that the constitutionality of Berwick‟s entry into the Perez family home is to be 

determined by more than just the time it took place. See Bell v. Wolfish, 441 U.S. 520, 

559 (1979) (“The test of reasonableness under the Fourth Amendment is not capable of 

precise definition or mechanical application. . . . Courts must consider the scope of the 

particular intrusion, the manner in which it is conducted, the justification for initiating it, 

and the place in which it is conducted.”). In the instant case, there is a genuine issue of 

material fact as to whether or not Berwick‟s entry was unconstitutional, given the time 

the entry occurred, the length of the search that allegedly ensued, the fact that at least 

some officers (potentially Berwick‟s agents) wore masks and drew weapons on the 

family, and the alleged failure of the officers to knock and announce their presence. 

Moreover, the District Court did not consider whether Berwick‟s nighttime entry is 

customarily accompanied by these other aggravating factors, such that Berwick can be 

said to follow a policy or practice of entering homes in this way.

3

 Accordingly, we will 

 

3 Although the ICE defendants argue before this Court that the Perez family waived its 

right to assert a knock-and-announce claim by failing to raise it below, it is evident that 

the Perez family‟s complaint did, indeed, claim a violation of their Fourth Amendment 

rights in connection with defendants‟ entry into their home. See, e.g., D.I. 13 (Am. 

Compl.), ¶ 27 (“As Rosa Perez opened the door, the defendants pushed her aside and 

swarmed into the plaintiffs‟ living room.”). Moreover, the Perez family did include 

extensive discussion of the alleged knock-and-announce violation in their opposition to 

the defendants‟ summary judgment motion. D.I. 153, 17-21. The District Court did not 

address this argument.
10

vacate and remand to the District Court for it to determine whether summary judgment is 

appropriate as to Berwick‟s Monell liability.

C.

Finally, the Perez family argues that the District Court erred in granting qualified 

immunity to the individual officers and agents who participated in the entry into the Perez 

family home. In assessing a government official‟s entitlement to qualified immunity 

from suit, we determine whether a plaintiff‟s constitutional right was violated, and 

whether that right was clearly established at the time of the alleged violation such that a 

reasonable person in the official‟s position would have known that his or her conduct 

violated it. Pearson v. Callahan, 555 U.S. 223, 232 (2009); see also Grant v. City of 

Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996) (clarifying that test for a “clearly established” 

right is an objective one). We need not decide whether a constitutional violation took 

place if we find a constitutional right was not clearly established. Pearson, 555 U.S. at

236. The Perez family argues that the officers should not receive the protection of

qualified immunity because they violated the family‟s clearly established constitutional 

rights by executing the bench and administrative warrants at night, failing to comply with 

the knock-and-announce requirement, unlawfully searching their home, and executing an 

unnecessarily long and violent entry. 

As far as the Perez family‟s right to be free from nighttime execution of 

administrative warrants is concerned, even if such a right does exist, we doubt that it was 

clearly established at the time of the incident, as the Perez family points to no statutes or 
11

case law clearly establishing that principle.4 See Kornegay v. Cottingham, 120 F.3d 392, 

396 (3d Cir. 1997) (“„Clearly established rights‟ are those with contours sufficiently clear 

that a reasonable official would understand that what he is doing violates that right.”). 

Nevertheless, we conclude that other allegations made by the Perez family — that 

the officers failed to abide by the knock-and-announce requirement, that the scope and 

length of their search was unreasonable and that they used excessive force in entering the 

Perez family‟s home — raise a genuine issue of material fact as to whether the individual 

officers are entitled to qualified immunity. To begin with, the knock-and-announce 

requirement is a clearly established point of constitutional law. Kornegay, 120 F.3d at 

396-97. Furthermore, as a general matter, it is clearly established that an official search 

that exceeds the bounds of reasonableness is a constitutional violation, as is the use of 

excessive force by an officer — though both inquiries are intensely fact-driven. See U.S. 

Const. amend. IV; Estate of Smith v. Marasco, 318 F.3d 497, 515 (3d Cir. 2003) (“To 

state a claim for excessive force as an unreasonable seizure under the Fourth 

Amendment, a plaintiff must show that a seizure occurred and that it was unreasonable.” 

(internal quotation marks omitted)). To determine whether the individual officers are 

entitled to qualified immunity, the District Court was required to consider whether, under 

the factual scenario of this case, the officers were reasonable to believe that their actions 

did not violate the Perez family‟s clearly established rights. The District Court did not 

pursue this inquiry as to any claims other than the nighttime execution of the search 

 

4 Moreover, the officers appeared either to be relying on their municipality‟s habitual 

practice (which they would reasonably have assumed was constitutional), or, in the case 

of the ICE agents, relying on the practice of the local officers.
12

warrant. Accordingly, we will vacate and remand so that the District Court may analyze

the issue of qualified immunity on the Perez family‟s knock-and-announce, unreasonable 

search, and excessive force claims. 

IV.

For the foregoing reasons, we will affirm the District Court‟s grant of summary 

judgment to Columbia County. We will vacate the grant of summary judgment as to 

Berwick and the individual officers, and remand to the District Court for proceedings 

consistent with this opinion.