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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PHILLIP F. POLLARINE :

Plaintiff :

:

v. : CIVIL NO. 03 -

:

DAVID BOYER, Detective Sergeant :

:

and :

: JURY TRIAL DEMANDED

THE EAST NORRITON TOWNSHIP :

POLICE DEPARTMENT , :

Defendants :

COMPLAINT

I. INTRODUCTION

On November 16, 2002, the East Norriton Township Police Department,

at the direction of Detective Sergeant David Boyer, invaded the home of Paul

Pollarine, a disabled pharmacist, and without sufficient investigation, arrested

him, used unlawful and unnecessary force which aggravated his back injuries,

and subjected him to public humiliation in front of his neighbors. Mr.

Pollarine was released on bail by a District Justice. Then on November 21,

without probable cause, Detective Sergeant Boyer again invaded the home of

Mr. Pollarine and illegally arrested him, again using excessive and unnecessary

force further exacerbating his back injuries and then caused him to be falsely

imprisoned at the Montgomery County Jail until November 26, 2002. During

that imprisonment Mr. Pollarine was unable to obtain the medicines or

treatment prescribed by his doctors, and his physical health was damaged, in

addition to the severe emotional distress he suffered during that false

imprisonment. He seeks to recover damages against the East Norriton

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Township Police Department and Sergeant Boyer for the violations of his civil

rights and for state law torts.

II. JURISDICTION AND VENUE

1. This Court has subject matter jurisdiction pursuant to the

provisions of 42 U.S.C. 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343, 29

U.S.C. §§ 626(c) and 794a and 42 U.S.C. §§ 2000e(5)(f) and 12117.

2. Plaintiffs’ federal claims are authorized by 28 U.S.C. §§ 2201 and

2202, 29 U.S.C. §§ 626(c) and 794a, and 42 U.S.C. §§ 2000e(5)(f), and 2117 as

well as 42 U.S.C. § 1983.

3. This Court has supplemental jurisdiction over Plaintiff’s state law

claims of false arrest and malicious prosecution under 28 U.S.C. § 1367 and

1441(c) and negligent supervision under 28 U.S.C. § 1367.

4. Defendants’ actions complained of took place within the

jurisdiction of the United States Court for the Eastern District of Pennsylvania

and Defendants may be found there. Venue is therefore appropriate in this

district pursuant to 28 U.S.C. § 1391(b).

5. On May 16, 2003, Plaintiff duly gave notice to the Defendant

Police Department of intent to commence the instant action pursuant to the

provisions of 42 Pa.C.S.A. § 5522.

III. PARTIES

6. The Plaintiff Phillip F. Pollarine (hereafter “Pollarine” or “Plaintiff”)

is a citizen of the United States who resides at 714 Woodland Avenue, East

Norriton, Pennsylvania.

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7. Defendant David Boyer (hereafter “Boyer”) was at all relevant

times herein a Detective Sergeant employed by the East Norriton Township

Police Department and subject to such Department’s training, control and

supervision.

8. The Defendant Police Department of East Norriton Township,

Pennsylvania, is a subdivision of East Norriton Township, a Municipal

Corporation and governmental subdivision of the Commonwealth of

Pennsylvania.

9. At all times relevant herein, all acts performed by the individual

Defendant and any other relevant police employed by the East Norriton

Township Police Department were ministerial and were not acts incident to the

sovereign functions of government. Such acts were done under color and

pretense of the statutes, laws, ordinances, customs and usages of the

Commonwealth of Pennsylvania and by the individual Defendants under the

authority of his office as policeman for East Norriton Township.

10. Each and all of the acts alleged hereafter occurred in or about

East Norriton Township, Pennsylvania and within the Eastern District of

Pennsylvania.

IV. FACTS

11. Pollarine is a licensed pharmacist who has been or is an adjunct

professor of pharmacotherapy at the Colleges of Pharmacy at Case Western

Reserve, Ohio Northern University, Toledo and Temple Universities and has

practiced as a licensed, registered pharmacist at hospitals in Abington,

Wynnewood and Roxborough and at Lankenau and Einstein Hospitals.

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12. For a number of years, Pollarine has suffered from diabetes,

severe lower lumbar back problems and inability to walk or move about, which

resulted, among others, in major spinal surgery in November 1998 for a

spondylolumbar lamenectomy. In that same month, Pollarine was certified as

totally disabled by the Social Security Administration and placed on disability,

which continues to this day.

13. In addition, Pollarine had a serious radiculopathy and secondary

spinal injuries, which left him without any feeling below either knee.

14. As a result of this condition, Pollarine was unable to walk without

a cane or to move readily or easily, circumstances that were visible and obvious

to Defendants and known to them at all times throughout.

15. Pollarine presently resides and at the time of the incidents

described herein, resided with his wife Barbara Pollarine (hereafter “Barbara”)

and his 17-year-old son.

16. Prior to November 2002, Pollarine and his wife had sought and

received treatment for certain medical conditions of their minor son, who was

and is suffering from obsessive compulsive disorder and an obstructive subset

of Attention Deficit Deficiency. As a result of the same, their son has a history of

severe behavioral disturbances, including violent episodes involving his father,

sister, classmates and others during which he has lost control of himself.

17. On November 16, 2002, in the family home, the son refused

direction from his father, used unacceptable language, and his father slapped

him to stop the behavior.

18. At some point during this incident and unknown to his father, and

while he was undergoing a severe episode of his disorders, the son telephoned

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the Defendant East Norriton Township Police Department (hereafter “the

Police”) claiming child abuse.

19. As a result of such call, the Defendant David Boyer (hereafter

“Boyer”) and certain other unknown and unidentified officers employed by and

acting for and on behalf of the Police appeared at the Pollarine residence at 714

Woodland Avenue, East Norriton, Pa.

20. The son granted Boyer and such other officers access. All such

officers were then and thereafter acting at all times relevant as officers and

agents of the East Norriton Police Department, which was responsible for their

actions, training, supervision, direction and discipline.

21. Boyer and such other officers entered the Pollarine residence

unannounced and without display of a warrant and without explaining their

presence or purpose began to search for Pollarine.

22. At the time of their entrance Pollarine was in a second-floor

bathroom and was unaware that such Defendants had entered the premises or

were searching for him.

23. When Defendants found Pollarine in the bathroom, they

demanded that he immediately exit and dress himself. Because he was both

indisposed and crippled he could not immediately move, whereupon Defendants

threatened him with pepper spray. Pollarine then struggled out of the

bathroom partially undressed and with his cane struggled in his crippled

condition to get to his clothes.

24. Defendants failed to inquire as to the father’s side of the story or

allow the father to explain his son’s condition or his own disabilities.

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25. When Pollarine turned his body to attempt to pull on his trousers,

the four Defendant policemen, without further warning or cause, jumped upon

him and wrestled him onto a bed and jumped, knelt, stood or sat upon his

back.

26. Pollarine had not attempted to resist arrest and had not

manifested any sign of physical resistance. Instead he had questioned the

officers why they were attempting to arrest him.

27. When Pollarine raised questions, Boyer threatened Phillip with the

use of pepper spray and with charges of resisting arrest and aggravated assault

for questioning Boyer’s presence or interrogation.

28. The Defendants’ actions in grabbing Mr. Pollarine, throwing him

down and physically restraining his movement caused him immediate and

severe pain. As a result of the same, he was unable because of their actions and

because of his inherent spinal problems to readily or easily walk or move about.

29. Pollarine attempted to advise the Defendants of his pain and

discomfort and his ongoing spinal problems and asked them to look at his

disability card, which had been issued following his surgery at Bryn Mawr

Hospital and which he carried with him certifying and attesting to his disability.

Boyer did not acknowledge such card and made no accommodation or

response, but rather handcuffed Pollarine behind his back so he could not use

his cane.

30. As a consequence of his inability to move easily or quickly, the

Defendant then dragged and wrestled Pollarine down the stairs of his residence

and into his front yard, at a time when Pollarine was in increasing pain and

distress and was still only partially clothed.

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31. The Defendants then forced Pollarine to struggle on his feet across

his yard and into the street with his pants down around his knees and to stand

in his front yard in the rain for a prolonged period of time while they waited for

a police van. He remained in great pain and stood exposed in public sight of

various neighbors and passersby.

32. At no time from prior to their entry through the removal of

Pollarine into his front yard did Pollarine offer physical resistance that would

have justified the use of force or weapons. Rather, Plaintiff attempted to

accommodate the Defendants and comply with their demands relying upon the

evident authority of the individual Defendants who were throughout wearing

the official uniforms, insignias and badges of the East Norriton Police

Department.

33. The Defendants then threw Pollarine into a police vehicle and

drove him to Montgomery County District Court 38-1-1 for an appearance

before District Justice Michael Richman (hereafter “District Justice Richman”).

34. All such acts by Defendants were performed in a violent and

abusive manner with the intent and purpose of humiliating and embarrassing

Plaintiff in the presence of the public generally and, particularly, in the

presence of persons witnessing the incident.

35. Boyer secured the preparation of a District Justice form of

complaint charging Pollarine with simple assault and battery and resisting

arrest. A copy of such complaint is attached as Exhibit “A.”

36. Following testimony from Boyer, District Justice Richman entered

an order on November 16, 2002 releasing Pollarine and fixing unsecured bail at

$5,000.00. The District Justice orally advised Pollarine to stay at a local motel

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or hotel for “several days” before returning to his home so that the dispute with

his son could moderate and quiet with the brief passage of time. The District

Justice set the matter down for a further hearing on November 25, 2002.

37. Pollarine followed the terms of this informal order and stayed at a

local motel until his wife requested that he return on November 18, 2002.

38. Upon and after his return, there were no further disturbances

within the family and the Pollarine family commenced to resume their normal

life and pursuits.

39. During this time, an East Norriton patrol car was continuously

and virtually always parked outside or near the Pollarine house and Pollarine

himself was on various occasions followed by East Norriton patrol cars.

40. On November 21, 2002, Defendant Boyer and/or others of the

Defendant officers or other agents unknown of the Defendant Police

Department noted Pollarine’s motor vehicle parked at his residence.

41. Boyer then telephoned Pollarine and told him either to leave his

home immediately or face immediate arrest.

42. Without application for a warrant or seeking any other form of

prior legal writ or authorization, they appeared at and entered his residence.

43. Boyer and other officers thereupon entered Pollarine’s residence,

grabbed and wrestled him, placing him in handcuffs with a belt around his

back and through the cuffs and once more forced him to struggle and stagger in

his disabled condition from his residence.

44. Pollarine urged the police officers to read and adhere to the

provisions of District Justice Richman’s Order of November 16, 2002, but they

refused to look at a proffered copy of the Order or to acknowledge that Richman

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had merely advised Pollarine to remain absent from his residence for “several

days.”

45 Boyer stated that the Police had observed Pollarine’s automobile

parked at his residence for the past several days and had thereupon concluded

that Boyer himself was present in the residence in violation of some provision of

Richman’s Order of November 16, 2002. Pollarine had not in fact been present

at his residence between November 16 and November 18, 2002 nor had his

automobile been parked there.

46. The Police then took Pollarine to appear before District Justice Ester

Casillo (hereafter “District Justice Casillo”) at Magisterial District Court 38-1-01

on November 21, 2002, and Boyer swore out an “Affidavit of Probable Cause”

averring that Pollarine had violated the prior District Justice’s Bail Order of

November 16, 2002.

47. Upon the basis of such affidavit, District Justice Casillo ordered

Pollarine held in the Montgomery County Jail where he was held until

November 26, 2002.

48. During his incarceration, Pollarine advised the Police that he was

suffering from diabetes, hypertension, and severe impairment of his lumbar

spine and that he required continuous prescribed medications including

Glucophage XR, Oxycontin and Paxil.

49. The Montgomery County Jail refused to give Pollarine the same or

to grant his access to outside sources for such medications. Instead they gave

him certain other medications of a form and type unknown to Pollarine, which

the jailors claimed were “equivalents.”

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50. As a consequence of being deprived of his proper and customary

medications and of being unlawfully arrested and incarcerated, Pollarine was

placed in extreme physical pain and discomfort and caused grave and severe

physical and emotional stress which has resulted in post-traumatic stress

syndrome for which he has and will continue to require psychotherapy and

separate medication..

51. As a direct consequence of being deprived of his medications and

being so held Pollarine suffered a severe relapse in his condition and slowly lost

total control of his legs; was consequently bed ridden for over two months and

was unable to work in any capacity in any employment.

52. Pollarine's physicians advised him that being so held and deprived

had effectively cost him all of the benefits of a prolonged period of rehabilitation

he had just completed and caused a major relapse in cure and treatment of his

spinal condition requiring frequent and painful steroid injections; limiting him

to being able to stand for no longer than 15 minutes at a time; and which will

likely require spinal fusion surgery. None of these consequences would have

occurred but for the succession of actions of the Defendants as set forth herein.

53. Prior to this time, Pollarine had never experienced comparable

pain in his left hip or leg.

54. Pollarine was then brought back before District Justice Casillo by

the Police for violation of the prior bail Order.

55. At the time of the November 26, 2002, appearance before District

Justice Casillo, Boyer, when cross-examined, could not find any of the terms

and conditions for which he had rearrested and incarcerated Pollarine within

District Justice Richman’s Order.

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56. District Justice Casillo recessed the hearing.

57. District Justice Casillo then proposed that Pollarine plead guilty to

disorderly conduct. Given that District Justice Casillo had just concluded that

Pollarine had not and could not have violated non-existent terms of the

November 16 bail order, Pollarine therefore understood that Casillo was

proposing that he plead to disorderly conduct for the November 16, 2002

incident and was proposing that he pay a nominal $50.00 fine on account of his

conduct on November 16.

58. Pollarine therefore agreed to pay the $50.00 fine prescribed in the

November 16 charge if he were immediately released.

59. Pollarine was in fact promptly released and advised that when he

received a copy of the Order being entered on November 26, 2003, he could pay

the $50.00 fine by mail and be finally discharged.

60. However, when Pollarine later received his initial copy of the

charges (a copy of which is attached as Exhibit “B”), he found for the first time

that the Police had filed a new charge of disorderly conduct dated November 21,

2002, issued as Citation No. P1621107-5, a copy of which is attached as

Exhibit “C,” charging Pollarine with “creating a disturbance, which served no

legitimate purpose.”

61. Pollarine then followed the directions on the citation and returned

a not guilty plea and requested a hearing date.

62. When Pollarine inquired at the court why he had received no

hearing date, the clerk informed him that he could not enter a not guilty plea

and unless he paid the fine, a warrant would be issued for his arrest.

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63. When Pollarine and his counsel attempted to pay the agreed fine

of $50.00 for the incident of November 16, 2002 the offices of the District Court

could not produce any record of the charges to which the same would be

applied.

64. Pollarine paid the sum of $50.00 with the attached letter from

counsel to avoid a further threatened warrant for his arrest and through the

present date, has been unable to ascertain to what matter or file the same was

applied. This letter of May 9, 2003 is attached as Exhibit “D.”

65. While Plaintiff denies and has continuously denied committing

any crimes, he specifically denies that he committed any criminal act on

November 21, 2002, upon which the charges set forth in Exhibit “C” would be

based.

66. Plaintiff therefore avers that even if he had committed any

criminal act on November 21, 2002, Defendants were not justified in using the

kind and degree of force they used to effect his arrest on that date and were

unjustified in making any form of arrest after that date.

67. Plaintiff further avers that he never breached any condition of bail

at any time and committed no possible further criminal acts after November 16,

2002, and, that his subsequent arrest, detention and incarceration on

November 21, 2002 was unlawful and without justification or basis in law or

fact, and was therefore malicious and done for a purpose other than bringing

him to justice.

68. Plaintiff further avers that from and after November 16 he was in

full and due compliance with the provisions of the District Court Order of

November 16, 2002, and that the ensuing actions of the Defendants were

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therefore unlawful and unreasonable; were without justification or basis in law

or fact; and were done willfully and intentionally for a wrongful and improper

purpose.

69. The Defendant East Norriton Township, acting through its Police

Department, was responsible for the training, supervision, disciplining and

control of Boyer and of any other police officers involved in the present matters

and is therefore responsible for failure to have controlled or prevented their

wrongful acts and all such acts as were without justification or reasonable

basis in law and fact.

70. On information and belief, Plaintiff further avers that the East

Norriton Township Police Department knew of other incidents involving Boyer,

where Boyer had failed to respect the requirements of the Constitution, but that

it had failed to discipline or correct him.

71. Such acts of Defendants deprived Plaintiff of his right to be secure

in his person against unreasonable search and seizure (under the Fourth and

Fourteenth Amendments to the United States Constitution); not to be arrested

or detained without being fully and duly informed of charges against him

(pursuant to the Sixth Fourteenth Amendments to the United States

Constitution); not to be subjected to cruel and unusual punishment (under the

Eighth Amendment to the United States Constitution); nor to be deprived of life,

liberty or property without due process of law or be subjected to denied equal

protection of law as guaranteed by the (Fourteenth Amendment to the United

States Constitution) (the Fourth, Eighth and Fourteenth Amendments to the

United States Constitution).

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72. The acts of the Defendants occurring on and after November 16,

2002, were performed knowingly, intentionally and maliciously and in the

knowing and/or careless disregard of Plaintiff’s rights, entitling Plaintiff to an

award of appropriate punitive damages.

73. By reason of such wrongful acts, Plaintiff was required to engage

counsel to secure his release from custody on November 26, 2002 and has been

forced and compelled to incur additional legal costs and expenses, which will

continue hereafter.

74. As further direct and proximate results of such wrongful acts of

Defendants, Plaintiff was improperly and unlawfully arrested, detained and

imprisoned and compelled to forgo his liberty for six days.

75. Defendants’ actions have further caused Plaintiff grave and severe

physical, mental and emotional distress, have caused him to be ostracized by

his neighbors and have caused serious damage to his reputation and standing

in his community and will continue to cause the same hereafter.

76. Defendants had sufficient basis and should have known from the

outset that those incidents, which had in fact occurred at the Pollarine

residence, were in the nature of a normal domestic disturbance brought about

by the condition of Pollarine’s son and were or should have been aware that the

son was suffering from certain medical conditions likely to have caused

disturbing and aberrant behavior.

CIVIL RIGHTS VIOLATION

77. Plaintiff incorporates by reference paragraph 1 through 76 hereof

as though set forth in full.

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78. At all times herein, the individual Defendant was acting under the

color of state authority and as an employee of the East Norriton Police

Department.

79. The aforesaid actions of the Defendants were in violation of 42

U.S.C. § 1983 and caused the Plaintiff to be deprived of rights, privileges and

immunities secured by the United States and Pennsylvania Constitutions and

other laws, including, but not limited to:

(a) Invasion of privacy;

(b) Assault and battery;

(c) Use of excessive force;

(d) False arrest;

(e) Illegal detention;

(f) Arrest without probable cause;

(g) Arrest and detention without due process of law; and

(h) False imprisonment.

(i) Reckless disregard of his medical condition.

SUPERVISORY LIABILITY

80. Plaintiff incorporates by reference paragraphs 1 through 79 as

though set forth in full.

81. Plaintiff, upon information and belief, avers that the individual

Defendant and one or more of other officers and agents of the East Norriton

Police Department have engaged in similar behavior on prior occasions and that

the Department had notice and knowledge of such incidents.

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82. Employees of the Defendant Police Department who acted in or

occupied supervisory authority or positions over the individual Defendant or

other officers failed to adequately train, supervise, control, discipline or take

proper remedial action to control and prevent such conduct and the acts that

occurred herein.

83. It is further averred that such derelictions and failures constituted

deliberate indifference to Plaintiff’s rights and the rights of other citizens with

whom Defendants might come in contact.

84. Such failures to control, train, discipline or supervise including,

among others, the following:

(a) failure to implement appropriate policies regarding service

of warrants and arrest;

(b) failure to implement appropriate policies regarding

confrontation of unarmed citizens in their private homes;

(c) failure to implement appropriate policies regarding

unauthorized entrance into private homes;

(d) failure to implement appropriate policies regarding

reprimand, discipline or remediation of inappropriate or

improper conduct;

(e) failure to implement appropriate policies regarding the use

of force against unarmed private citizens; and

(f) failure to implement policies regarding treatment of

individuals with disabilities and medical conditions

requiring medication.

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85. Supervisory personnel of the East Norriton Police Department had

specific foreknowledge of the propensity or likelihood that the individual

Defendant Boyer would or might engage in improper or unlawful conduct and

acquiesced in such conduct by failing to establish and implement proper

procedures and in failing to adequately train, control, discipline or supervise

such Defendants.

86. Such failure constituted deliberate indifference to Plaintiff’s rights

and was directly and causally related to the deprivation of Plaintiff’s

constitutional rights as set forth herein.

PENDENT STATE CLAIMS

False Imprisonment

87. Plaintiff incorporates by reference paragraphs 1 through 86 as

though set forth in full.

88. Defendants actions caused Plaintiff to be knowingly and

intentionally held and restrained from November 21 through November 26,

2002 unlawfully and without just cause and caused a substantial interference

with his liberty. The same therefore constituted the pendent tort of false

imprisonment under relevant state law.

False Arrest

89. Plaintiff incorporates by reference paragraphs 1 through 88 as

though set forth in full.

90. Defendants’ arrest and detention of Plaintiff on and after

November 21, 2002 were done knowingly and intentionally without justification,

purpose, reason or basis in law or fact and without any form of valid legal

process.

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91. Defendants’ actions in holding and detaining Plaintiff after

November 21, 2002 were knowingly and intentionally done without either

probable cause or any cause in law or fact.

92. Defendants’ actions in so holding and detaining Plaintiff were

further done in the knowing and intentional absence of any evidence that

Plaintiff had committed any crime or unlawful act justifying any form of arrest

or detention. The same therefore constituted the pendent tort of false arrest

under relevant state law.

Malicious Prosecution

93. Plaintiff incorporates by reference paragraphs 1 through 92 as

though set forth in full.

94. Defendants arrested and detained Plaintiff on and after November

21, 2002 without probable cause and without reason in law or fact and for a

purpose other than bringing Plaintiff to justice.

95. The only possible wrongful acts that Plaintiff had committed had

been committed on November 16, 2002.

96. The only criminal charges that could have been lawfully pending

on November 26, 2002 were therefore matters relating to Plaintiff’s conduct on

or before November 16, 2002.

97. As a consequence, the only criminal conduct that could lawfully

have been before the District Court on November 26, 2002 was conduct relating

to the transactions occurring on November 16, 2002.

98. Prior to and at the time of the November 26, 2002 hearing,

Pollarine had committed no discrete acts that could have formed the legal basis

for any new or additional criminal charges beyond the scope of the matters

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before the court on November 16, 2002. Therefore, the proceeding on November

26, 2002 could not have been adjudicated unfavorably to Pollarine.

99. The Defendants’ actions on and after November 21, 2002 were

therefore done maliciously and intentionally and without purpose or cause in

law and fact and constituted the pendent tort of malicious prosecution under

state law.

Assault and Battery

100. Plaintiff incorporates by reference paragraphs 1 through 99 as

though set forth in full.

101. Defendants’ use of force from November 16, 2002 through

November 26, 2002 was excessive, unreasonable, unnecessary and unjustified.

102. The Defendants’ use of any form or degree of force and subjecting

him to force during incarceration after November 16, 2002 was unreasonable,

unnecessary and unjustified.

103. Defendants’ actions subjected Plaintiff to unjustified fear of

serious bodily injury and in fact caused him severe physical injuries. The same

therefore constituted the pendent tort of assault and battery under relevant

state law.

WHEREFORE, Plaintiff prays for judgment in his favor and against the

Defendants in an amount in excess of Seventy Five Thousand Dollars

($ 75,000.00).

Respectfully submitted:

October , 2004 __________________________

Anna M. Durbin, Esq.

I.D. No. 30555

Counsel for Plaintiff

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