ALLENTOWN – A Bethlehem casino seeks to join Pennsylvania State Police defendants in looking to dismiss litigation filed by a New Jersey man, who alleged he was falsely accused of stealing a wallet at the casino on account of his Hispanic heritage and imprisoned for three days by both the Bethlehem Police Department and the Pennsylvania State Police.
Miguel Garcia of Totowa, N.J. filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Jan. 22 versus Wind Creek Bethlehem, LLC (doing business as “Wind Creek Bethlehem”), Kent Jenkins (individually and in his capacity as Wind Creek Surveillance Operator) and John Doe Security Officers 1-10 (individually and as Security Officers for Wind Creek Bethlehem) of Bethlehem, plus Pennsylvania State Police Trooper Johnny Rodriguez and Pennsylvania State Police Commissioner Robert Evanchick, of Harrisburg.
The lawsuit stated Garcia was standing in line near a group of Hispanic men waiting to enter Wind Creek casino on Oct. 3, 2020, when his identification was scanned in succession with those same other men.
Unbeknownst to the plaintiff, the suit said, those other men would go on to steal the wallet of another casino patron, which contained “…a few credit/debit cards, a Pennsylvania driver’s license and $470.00 in cash.”
Nonetheless, the lawsuit accused the casino defendants of misidentifying the plaintiff as the wallet thief and communicating that erroneous information to the Pennsylvania State Police, who charged Garcia with theft on Dec. 10, 2020.
Garcia, of Mexican descent but an American citizen born in Texas, claimed that he was “clustered” with the Hispanic males standing near him in line who were actually responsible for the crime.
Furthermore, Garcia said the theft charge caused a preliminary hearing to be scheduled for him to appear in court on Jan. 21, 2021, but adds he never received a formal notice to attend the hearing – believing authorities mailed it to his former address.
As a result of his failure to appear in court, a bench warrant was issued for Garcia’s arrest; again, unbeknownst to the plaintiff, the suit claimed.
When Garcia returned to gamble at Wind Creek casino on Feb. 14, 2021, security on hand summarily ejected him from the premises due to the pending theft charge. As Bethlehem Police responded to the casino, they arrested Garcia for the outstanding bench warrant for missing the Jan. 21, 2021 preliminary hearing.
Though Garcia was first detained in a Bethlehem Police Department holding cell for nearly three hours, he was taken to Northampton County Prison that same night, the suit stated. Garcia was then incarcerated at Northampton County Prison from Feb. 14, 2021 to Feb. 16, 2021.
Subsequent investigation by the Northampton County District Attorney’s Office led to Garcia’s full and complete exoneration, after examination of casino surveillance video footage and photographs confirmed that Garcia did not resemble any of the suspects in question.
Despite the charges against Garcia being formally dropped on April 27, 2021, the plaintiff said his reputation at his workplace has been permanently damaged and he suffered humiliation, embarrassment and lost wages.
However, defendants Evanchick and Rodriguez filed a motion to dismiss for lack of jurisdiction, or in the alternative, for failure to state a claim on March 9.
“First, the state police defendants did not violate plaintiff’s Fourth Amendment rights by relying on information provided by casino employees, including information implicating plaintiff in the theft. It is well established in the Third Circuit that a charging officer may rely on this kind of third-party witness information in bringing charges. Second, the complaint does not establish Col. Evanchick’s personal involvement in any alleged constitutional violation because it does not aver that Col. Evanchick promulgated any unconstitutional policy or knew anything about this investigation,” according to the dismissal motion.
“Third, the state police defendants are entitled to qualified immunity because they did not violate any clearly established Fourth Amendment right. Fourth, the complaint fails to state a Section 1981 or Section 1982 claim because these statutes do not allow claims against state actors and, even if they did, plaintiff has failed to show an impairment of a contractual or real property right of the type protected by these statutes. Fifth, the complaint fails to plead sufficient facts to show conspiracy. The mere fact that the trooper relied upon information from the casino that turned out to be erroneous does not show a meeting of the minds for the purpose of violating plaintiff’s civil rights. Sixth, any official capacity claim is barred by Eleventh Amendment immunity. All claims against the state police defendants should be dismissed.”
UPDATE
Defendants Jenkins and Wind Creek Bethlehem, LLC motioned for leave to file a motion to dismiss and supporting brief for failure to state a claim on March 24.
“On or around Feb. 8, 2022, the undersigned entered his appearance on behalf of moving defendants. After exchanging correspondence and communicating via telephone with plaintiff’s counsel, a waiver of service was executed on behalf of moving defendants by the undersigned and filed on Feb. 15, 2022. Per the applicable waivers of service, moving defendants were provided 60 days from Feb. 14, 2022 (or until Friday, April 15, 2022) to file an answer or motion under Rule 12. At that time, no service of defendants Rodriguez or Evanchick had been completed. On Feb. 16, 2022, defendant Rodriguez was served, but no appearance was entered on his behalf,” the motion stated.
“Thereafter, following a telephone conversation between the undersigned and plaintiff’s counsel discussing the perceived issues with plaintiff’s complaint, the undersigned authored an email on Feb. 21, 2022 to plaintiff’s counsel specifically outlining the issues and advising that a 12(b)(6) motion would be necessitated if these issues could not be resolved. The same day, plaintiff’s counsel responded, both in substance to the claimed issues on the part of the moving defendants, as well as to suggest the filing of a stipulation to extend the time to file a 12(b)(6) motion, in an effort to try and confer amongst all counsel regarding issues with the complaint so as to streamline any eventual motion practice and avoid inundating the Court with staggered motions addressing similar issues on behalf of separate and distinct parties.”
Counsel for the undersigned agreed to a proposed stipulation with the implicit understanding that he was not waiving the ability/opportunity to protect his client’s interest through the filing of a 12(b)(6) motion. On Feb. 28, 2022, a joint stipulation executed by the undersigned counsel and counsel for the plaintiff was filed.
On March 7, U.S. District Court for the Eastern District of Pennsylvania Judge Joseph F. Leeson Jr. entered an order approving in part, and denying in part the stipulation. Per the order, “moving defendants’ deadline to file an answer to plaintiff’s complaint, only, and for no other purpose, [was] extended through and including May 6, 2022.”
“By virtue of the order, it is unclear if the Court had thereby limited the ability of the moving defendants to still timely file a 12(b)(6) motion in accordance with the terms of the waiver of service, or if the Court was simply advising moving defendants that, to the extent additional time beyond April 15, 2022 was needed, the only responsive pleading permitted would be the filing of an answer. On March 9, 2022, defendants Rodriguez and Evanchick filed a timely motion to dismiss. Defendants Rodriguez and Evanchick’s Motion raises some of the same issues that are sought to be presented by moving defendants, although there are some distinctions and some entirely unique issues raised by moving defendants’ proposed motion,” the motion stated.
“As demonstrated in moving defendants’ motion and brief, collectively, there exist some preliminary considerations to be given by this Honorable Court, which have the potential of streamlining this litigation, or even potentially forcing the remand to state court. Moving defendants’ agreement to enter into a stipulation with plaintiff’s counsel was not done with the intention of waiving moving defendants’ ability to challenge the propriety of some of the claims raised in plaintiff’s complaint. Based upon the language of the order, moving defendant requests leave to file its motion and brief pursuant to Federal Rule of Civil Procedure 12(b)(6).”
For counts of constitutional rights violations through malicious prosecution, false arrest, false imprisonment, conspiracy, discrimination on the basis race, color or national origin, deprivation of right or privilege, racial discrimination under color of state law, failure to instruct, supervise or control, respondeat superior liability, negligence, intentional infliction of emotional distress and lost wages, the plaintiff is seeking damages, jointly and severally, in excess of the $150,000 arbitration limit for the U.S. District Court for the Eastern District of Pennsylvania, together with punitive damages, and other relief, including costs of suit, reasonable attorney and expert fees, all such further relief as this Honorable Court deems just and proper, plus a trial by jury.
The plaintiff is represented by John E. Kotsatos of Kotsatos Law and Mark L. Minotti of Minotti Law Offices, both in Easton.
The defendants are represented by Ian Thomas Baxter of Post & Schell in Allentown, plus Stephen R. Kovatis of the Pennsylvania Attorney General’s Office, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:22-cv-00292
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com