Nicholas Malfitano May 29, 2015, 10:39am


PHILADELPHIA – A prospective juror who claims he was discriminated against for his disability and removed from a jury pool on that basis had most of his claims dismissed recently in federal court.

Michael Smith of Philadelphia initiated litigation against the City of Philadelphia, Sheriff Lt. George McClendon and four John Doe Deputy Sheriff Officers in November, alleging they violated his rights under the Fourth and Fourteenth Amendments to the U.S. Constitution and Title II of the Americans with Disabilities Act of 1990 (ADA) when they supposedly detained and removed him from jury consideration based on his disability.

On June 6, 2013, Smith reported to the Criminal Justice Center in Philadelphia for jury duty. Smith, who suffers from Complex Regional Pain Syndrome, explained to courthouse personnel that the condition is treated through a metal pump implanted in his stomach.

Smith claimed he was permitted to proceed to the jury pool room after some “initial confusion” when he presented his medical card explaining the condition to sheriff’s officers.

When the jury pool was excused for a break at 10:15 a.m., Smith claimed he informed the deputy sheriffs in the lobby that he was leaving the building and would again need assistance getting through security due to the metal pump in his stomach.

Smith claimed he was removed from the line by McClendon when he returned from the break, and alleged McClendon told him, “You’re not getting back in the building.”

Smith, who was wearing a juror sticker, responded to McClendon that he needed to re-enter the Criminal Justice Center for jury duty and was permitted re-entry.

When Smith returned from lunch at 1 p.m., he stood in the security line until a deputy sheriff told him that he would not be permitted to re-enter the justice center, he says.

Smith claimed he again showed his medical card to the deputy sheriffs, but the deputy sheriffs “refused to look at the card.” Finally, Plaintiff lifted his shirt to show the deputy sheriffs that Plaintiff had an internal device protruding through the skin of his stomach.

At that point, Smith claimed McClendon approached and told Plaintiff to “get out of the building, but Smith once again explained that he was at the justice center for jury duty.

Smith did not exit the building and various deputy sheriffs approached him and said that he would be arrested if he did not leave, he claims.

Smith then called the Philadelphia Police Department and informed them that the deputy sheriffs were attempting to remove him from the justice center. As a result, the deputy sheriffs then escorted Smith outside, he says.

Following this incident, Smith filed a complaint with the Internal Affairs Department and cooperated with their investigation, but claimed he received no further updates on that investigation despite repeated inquiries.

Smith then filed suit in November, alleging the defendants made: (1) an unreasonable seizure in violation of his Fourth Amendment rights; (2) a violation of his substantive due process rights under the Fourteenth Amendment; (3) a violation of his equal protection rights under the Fourteenth Amendment; (4) a Monell municipal liability claim against the City of Philadelphia; and (5) a discrimination claim under Title II of the Americans with Disabilities Act.

Defense counsel filed a motion to dismiss Smith’s claims in January, leading Judge Joel H. Slomsky, of the U.S. District Court for the Eastern District of Pennsylvania, to rule on the matter and its claims individually, beginning with the Fourth Amendment claim.

“Plaintiff makes no allegations that he was touched in any way during this encounter. Plaintiff was free to go wherever he wanted to go outside of the courthouse. Given these circumstances, plaintiff could not have reasonably believed that he was not free to leave,” Slomsky said.

“Therefore, plaintiff has failed to plausibly allege that he sustained a violation of his Fourth Amendment right against unreasonable seizure and this claim will be dismissed.”

Slomsky also dismissed Smith’s claims of due process and equal right protections violations under the Fourteenth Amendment.

“Plaintiff was not touched at all while he was escorted from the courthouse. He was merely asked to leave the courthouse, and when he refused, he was escorted outside,” Slomsky said.

“At that point, he was free to go wherever he wanted to go. Under these circumstances, the actions taken by the deputy sheriffs and defendant McClendon simply do not rise to the level of conscience shocking behavior. Thus, plaintiff’s substantive due process claim fails.”

Slomsky opined McClendon and the unnamed deputy sheriffs are entitled to qualified immunity on Smith’s Fourth Amendment and Fourteenth Amendment claims.

“With regard to the Fourth Amendment claim, there is no precedent that would lead the deputy sheriffs to believe that escorting plaintiff out of the courthouse constituted an unreasonable seizure,” Slomsky said.

Slomsky continued, “Because there is no existing precedent that recognizes a liberty interest in serving as a juror, the individual defendants here would not have believed they violated clearly established law when they prevented plaintiff from continuing with jury selection by escorting him out of the courthouse.

“Thus, plaintiff’s substantive due process claim also fails because the defendant deputy sheriffs would be protected by qualified immunity. Accordingly, defendants are cloaked with qualified immunity and for this additional reason, plaintiff’s Fourth and Fourteenth Amendment claims will be dismissed.”

For similar rationale, Smith’s Monell claim was also dismissed by Slomsky. However, Slomsky did find favor with Smith’s claim of violating the ADA’s Title II.

“Here, plaintiff has also plausibly alleged that he was forced to leave the Criminal Justice Center and not permitted to serve as a potential juror because of his disability. Plaintiff here was not permitted to enter the building because of the device he used to accommodate his disability,” Slomsky said.

“Even though plaintiff showed the deputy sheriffs his medical card, displayed a juror sticker, eventually pulled up his shirt to display the metal pump protruding from his stomach, and finally had the sheriffs confirm with court staff that plaintiff was properly there to serve as a potential juror, plaintiff was nevertheless persuaded to exit the building or face being arrested.”

Slomsky wrote Smith “plausibly alleged” he was denied access to the Criminal Justice Center and excluded from participation in jury duty because of his disability.

“Thus, defendants’ motion to dismiss will be denied on plaintiff’s claim under the ADA,” Slomsky stated.

Monetary damages sought by the plaintiff were not listed in this case’s complaint.

The plaintiff is represented by Stephen Thomas O’Hanlon of the O’Hanlon Law Firm, in Philadelphia.

The defendants are represented by Michael R. Miller and Dimitrios Mavroudis of the City of Philadelphia Law Department.

U.S. Eastern District Court of Pennsylvania case 2:14-cv-06358

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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