Pellegrino v. United States Transportation Security Administration

Citations: 855 F. Supp. 2d 343; 2012 WL 661773; 2012 U.S. Dist. LEXIS 25980Docket: Civil Action No. 09-5505

Court: District Court, E.D. Pennsylvania; February 27, 2012; Federal District Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Defendants’ Motion to Dismiss the Third Amended Complaint has been partially granted and partially denied by Chief Judge Joyner. The case originated from an airport security screening incident involving Plaintiffs Nadine Pellegrino and Harry Waldman at Philadelphia International Airport on July 29, 2006. The Plaintiffs, who are business consultants, experienced an escalation from a routine security check to a lengthy criminal prosecution and subsequent civil litigation.

During the screening, Pellegrino was detained while a TSA officer conducted an in-depth examination of her luggage. Concerns over the officer's handling of her belongings led Pellegrino to request a female officer for the search. TSO Nuyriah Abdul-Malik eventually handled the bags but, despite changing her gloves as requested, Pellegrino alleged that Abdul-Malik exhibited hostility towards her. Pellegrino was then taken to a private screening room where her body and personal items were searched excessively.

Abdul-Malik's actions included a thorough examination of Pellegrino’s belongings, which involved counting currency, inspecting personal items, and damaging her property by carelessly handling and forcing items back into her bag. Pellegrino contended that the manner in which her belongings were treated resulted in permanent damage and significant distress.

Abdul-Malik used her knee and body weight to forcefully close Pellegrino's rolling tote bag, damaging it in the process, and subsequently placed it under the search table. Labbee observed the damage without intervening. During the screening, Pellegrino expressed her intent to report the agents' mistreatment, resulting in Abdul-Malik threatening her with arrest for speaking out. Abdul-Malik demanded that Labbee contact the Philadelphia police. Despite Pellegrino's complaints, she did not obstruct the screening, and no prohibited items were found in her luggage. After Labbee informed Pellegrino she could leave, Pellegrino began repacking her belongings publicly, tossing some items toward a search table. During this time, three items were disposed of in a trash can without her consent. When Pellegrino tried to retrieve her tote bag, Abdul-Malik physically obstructed her, forcing Pellegrino to crawl under the table to grab it. At no point did Pellegrino's belongings physically contact any agent. Labbee later re-detained Pellegrino without explanation, confiscating her driver's license and preventing her from accessing her belongings. Approximately twenty minutes after their initial arrival, TSA officials and police were summoned to the checkpoint. Pellegrino and her companion Waldman were not informed about the situation. Subsequently, TSOs Labbee and Abdul-Malik falsely accused Pellegrino of assault, claiming she struck them with her suitcase. TSO Kissinger, who was not present during the alleged incidents, also falsely testified to witnessing the events.

Abdul-Malik and Labbee pressed charges against Pellegrino, leading to her arrest by a Philadelphia police officer after being frisked at a checkpoint. Pellegrino was handcuffed and escorted out of the airport, experiencing what she described as a humiliating public spectacle. Prior to the arrest, she was detained by TSA officials for approximately one hour. Following her arrest, Pellegrino claims to have been held in poor conditions for nearly 18 hours. Airport Division Officer Michael Browne transported Labbee, Abdul-Malik, and Kissinger to the police station for an interview with Detective William Campbell, where criminal complaints against Pellegrino were filed. The District Attorney's Office later pursued felony charges for aggravated assault and multiple misdemeanors, including reckless endangerment, simple assault, possession of instruments of crime, and making terroristic threats.

On August 14, 2006, Pellegrino received a letter from the TSA indicating that a Civil Action Enforcement investigation was underway regarding the incident. From August 14 to 25, the Plaintiffs’ attorney made several unsuccessful attempts to contact the TSA to defer the investigation and preserve surveillance video. A preliminary hearing on October 25, 2006, resulted in the dismissal or abandonment of all charges against Pellegrino except two counts of simple assault and two counts of instrumentality of a crime. During her trial on March 28, 2008, the TSA failed to produce the requested surveillance footage, leading to the judge barring key testimonies and ultimately finding Pellegrino not guilty of the remaining charges. 

On July 28, 2008, the Plaintiffs submitted a claim to the TSA regarding alleged abuses, which was denied on May 19, 2009. The Plaintiffs initiated the current action on November 18, 2009, and were granted multiple opportunities to amend their pleadings. On February 17, 2011, the Defendants filed a Motion to Dismiss all claims under Fed. R. Civ. P. 8 and 12(b)(6). The court declined to dismiss the case for failure to simplify the pleadings but noted the length and redundancy of the Plaintiffs’ submissions. In considering the motion to dismiss, the court must accept the factual allegations in the complaint and reasonable inferences drawn from them.

To survive a motion to dismiss, a complaint must present sufficient factual matter that, if accepted as true, establishes a plausible claim for relief, as per Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. A claim achieves facial plausibility when it provides factual content that allows a reasonable inference of the defendant's liability. While a plaintiff does not have to meet a probability standard, they must provide more than just a sheer possibility of wrongdoing. Complaints filed by pro se litigants are subject to more lenient standards than those drafted by attorneys; courts are required to interpret these complaints liberally and infer all potential claims. Nonetheless, courts must still assess whether pro se plaintiffs have alleged sufficient facts to support their claims, and mere conclusory statements or threadbare recitals do not meet the necessary threshold.

In the case of Nadine Pellegrino and her husband Harry Waldman, Waldman’s claims are dismissed due to lack of standing, except for those under the Freedom of Information Act (FOIA). Regarding tort damages under the Federal Tort Claims Act (FTCA), the Act allows district courts to hear claims for damages caused by the negligence of federal employees, with the U.S.'s liability determined by state law. Here, Pennsylvania law applies. Although the defendants argue that the FTCA claims are time-barred, the court disagrees. To bring a tort claim against the U.S., the claimant must first file a written claim with the relevant federal agency within two years of the incident and then initiate a civil action within six months of receiving a denial. In this case, the plaintiffs filed their complaint with the TSA on July 28, 2008, within the two-year timeframe of the incident on July 29, 2006, and subsequently initiated their action on November 18, 2009, within the required six-month period after the TSA's denial. Thus, the plaintiffs appear to have complied with the procedural requirements timely.

Jurisdiction over the claim presented to the TSA hinges on whether the plaintiffs adequately established grounds for FTCA liability and specified damages. Pellegrino alleges permanent property damage caused by TSA Officers during a security search, including damage to eyeglasses, jewelry, a sentimental coin purse, and various bags. The FTCA allows tort claims against federal employees, but intentional torts like false arrest and false imprisonment are generally barred, with an exception for claims against "investigative or law enforcement officers." 

Defining these officers under 28 U.S.C. § 2680(h) includes those empowered to conduct searches and make arrests for federal law violations. There is limited precedent regarding whether TSA Officers qualify as such, with Defendants referencing an unpublished case (Coulter v. U.S. Dep’t of Homeland Sec.) where a court ruled TSA employees do not meet this definition. However, this contradicts Third Circuit precedent, which recognizes TSA screenings as searches subject to Fourth Amendment protections. The legislative intent behind the exception supports liability for tortious conduct during searches, as noted in Pooler v. United States, emphasizing accountability for government agents during their interactions with the public.

Sovereign immunity should be lifted in certain cases where government actions expose the public to risks of intentional torts. The Senate committee intended for the amendment to hold the Government liable when its agents harm the public through unlawful searches and seizures. The "investigative or law enforcement officer" exception may apply to Transportation Security Officers (TSOs), who are authorized to perform warrantless searches. Discovery is necessary to determine whether TSOs acted within their authority in executing searches and making arrests that could establish U.S. liability for their intentional torts under § 2680(h).

The case also examines whether the alleged misconduct occurred during the execution of a search by TSA agents, which Defendants argue should bar the claims. Despite claims by TSO Labbee that the search was concluded, evidence suggests that the search was ongoing at the time of the alleged torts, especially since a pat-down and baggage search were still being conducted when the events leading to the civil action took place.

Additionally, the claims of false arrest, false imprisonment, and malicious prosecution are assessed. Under Pennsylvania law, false arrest and false imprisonment are similar, requiring proof of unlawful detention. Pellegrino alleges that TSO Labbee unlawfully confined her while calling the police, which she plausibly claims as there was no belief of wrongdoing by the agents.

For a malicious prosecution claim, four elements must be shown: initiation of legal proceedings without probable cause, with malice, and that the proceedings ended favorably for the plaintiff. A private citizen can be liable for malicious prosecution if they provide knowingly false information that leads to legal proceedings against another.

TSOs initiated criminal charges against Pellegrino, which were subsequently terminated in her favor. The key issue is whether the prosecution lacked probable cause, as this would imply malice on the part of the TSOs. According to Pennsylvania law, probable cause is determined by the court and exists if there are reasonable grounds for suspicion. Defendants claim probable cause based on statements from two witnesses, but Pellegrino asserts the TSOs were aware these statements were false and made solely to facilitate her prosecution. She has sufficiently alleged that her prosecution lacked probable cause, allowing her claim to proceed.

To establish a civil conspiracy, a plaintiff must show: (1) a combination of individuals acting with a common purpose to perform an unlawful act or lawful act by unlawful means; (2) an overt act in pursuit of this purpose; and (3) actual legal damage. An actionable conspiracy requires an independent wrong that would be actionable if committed by a single actor. Pellegrino claims that TSOs Labbee and Abdul-Malik conspired to falsely accuse her of assault, leading to her arrest and charges. Consequently, her claims of malicious prosecution and false arrest support a civil conspiracy claim under the FTCA.

Regarding defamation, Pellegrino contends that her reputation was harmed by statements made by the TSOs and a newspaper article about the incident. However, defamation claims are barred under the FTCA for tortious acts of federal employees during their employment, specifically regarding slander or libel. Testimony given under oath in criminal proceedings, even if deemed false or offensive, is also not grounds for a defamation claim.

Plaintiffs have not established the necessary elements for claims of intentional or negligent infliction of emotional distress under Pennsylvania law. For intentional infliction, the conduct must be extreme and outrageous, surpassing societal decency, which Plaintiffs failed to demonstrate. Previous cases indicate that mere tortious or even criminal intent is insufficient. Regarding negligent infliction, Plaintiffs must show immediate and substantial physical harm, which they did not. 

Pellegrino's allegations against TSA agents for constitutional violations must be brought under Bivens v. Six Unknown Fed. Bureau of Narcotics Agents. Claims against federal employees in their official capacities or against federal agencies are not permissible under Bivens. Additionally, any claims against TSA agents in their individual capacities are time-barred, as the two-year statute of limitations began on July 29, 2006, when Pellegrino knew of her injury, while the action was not filed until November 18, 2009. Claims related to malicious prosecution only accrue upon the termination of the criminal proceedings, which were dismissed on March 28, 2008, making those claims timely.

To establish a claim for malicious prosecution under Bivens, Pellegrino must demonstrate a deprivation of a constitutional right. The claim can be based on the First Amendment, where federal employees may face liability for retaliating against an individual’s free speech through criminal prosecution. To successfully allege retaliatory prosecution, Pellegrino must show: 1) participation in constitutionally protected conduct, 2) retaliatory actions that would deter a reasonable person from exercising their rights, and 3) a causal link between the protected conduct and the retaliatory actions. Additionally, she must prove the absence of probable cause for the prosecution. Pellegrino's complaint indicates that after she informed TSOs Labbee and Abdul-Malik of her intention to report them, they retaliated by filing fabricated criminal charges against her, which could deter a reasonable person from speaking out. The timing of these charges supports the claim of retaliation. 

Defendants argue the claim fails due to a lack of alleged absence of probable cause. The precedent set in Hartman v. Moore notes that for a Bivens action, the plaintiff must show the defendant influenced the prosecution without directly making the prosecutorial decision and must demonstrate that charges would not have been filed without the defendant's inducement. Pellegrino contends that the prosecution relied solely on three fabricated witness statements. While credible accounts can establish probable cause, the complaint raises questions about whether the involved officers and prosecutors had sufficient reliable information to warrant charging her with the offenses.

The dismissal of multiple criminal charges during the preliminary hearing supports the Plaintiff's claim of a lack of probable cause for prosecution. Although the Plaintiff must demonstrate that the prosecutor relied solely on unreliable information from TSOs, she has adequately alleged this absence of probable cause. To establish a malicious prosecution claim under the Fourth Amendment, the Plaintiff must show: (1) initiation of a criminal proceeding by the defendant, (2) a favorable outcome for the Plaintiff, (3) initiation without probable cause, (4) malicious intent or ulterior motives by the defendant, and (5) a deprivation of liberty consistent with seizure. The first four elements have been satisfied, leading to examination of the fifth. Malicious prosecution claims focus on the deprivation of liberty associated with prosecution rather than the prosecution itself, as established in case law. While mere attendance at trial does not constitute a deprivation of liberty, significant pretrial restrictions, such as bail or travel limitations, may qualify. The Plaintiff claims she was detained for 18 hours post-arrest and incurred travel costs to attend court proceedings, which supports her claim at this stage.

Regarding the Sixth Amendment, the Plaintiff alleges a violation through the destruction or withholding of surveillance video tapes by TSA officers, which she considers crucial witnesses. However, the Sixth Amendment guarantees compulsory process for favorable witnesses but does not ensure the presence of all witnesses. The Plaintiff does not assert that TSA employees actively obstructed her ability to subpoena witnesses, indicating no violation of her constitutional rights in that regard.

Unnamed TSA employees cannot be held liable for malicious prosecution as they did not initiate the criminal proceedings against Pellegrino. The Fourteenth Amendment is inapplicable since it pertains only to state actions. Attempts to claim malicious prosecution under the Fifth Amendment fail as there is no evidence of a denial of procedural due process, and substantive due process claims are also unavailing. 

Pellegrino alleges that several Doe TSA employees aided and abetted in her malicious prosecution by failing to prevent her arrest, misclassifying the incident in internal reports, assisting witnesses in testifying against her, and failing to preserve video evidence. However, there is no recognized constitutional basis under Bivens for a claim of aiding and abetting malicious prosecution, which is primarily a criminal liability concept. Even if such a claim existed, the actions described would not support liability.

For the civil conspiracy claim, Pellegrino must provide factual support showing that defendants acted in concert to deprive her of constitutional rights. Her allegations do not demonstrate a "meeting of the minds" among the TSA employees but rather suggest independent and parallel actions. The only indication of agreement is her assertion that two TSA officers accused her together, which does not establish a conspiracy. Consequently, the conspiracy charges against all defendants except for Labbee and Abdul-Malik are dismissed, as Pellegrino lacks sufficient factual allegations to support her claims.

A cause of action for conspiracy to prosecute maliciously cannot arise until the predicate malicious prosecution claims have favorably terminated, as established in Rose v. Bartle and Wiltz v. Middlesex County Office. Consequently, the conspiracy charge is confined to the allegations of malicious prosecution. Under Section 1985(3) of 42 U.S.C., a plaintiff must demonstrate that a conspiracy aimed to deprive persons of equal protection under the law was motivated by invidiously discriminatory animus against an identifiable class. The Supreme Court has ruled that this statute pertains only to private conspiracies based on racial or class-based discrimination. In this case, the plaintiff's allegations of differential treatment based solely on race and age do not meet the necessary criteria for establishing discriminatory animus, as the claims lack substantive support beyond general observations. 

Additionally, the claim regarding the TSA's failure to investigate civil rights complaints under the Administrative Procedures Act (APA) is not viable. The plaintiffs did not assert that the DHS Officer for Civil Rights and Civil Liberties ignored their complaints but argued instead that their administrative claim should have been treated as a civil rights complaint. The court agrees with the defendants that there is no legal obligation for the TSA to interpret administrative tort claims as civil rights issues for further action by the DHS. Thus, there is no basis for action under the APA because it only allows for the compulsion of legally mandated actions.

Lastly, the Freedom of Information Act (FOIA) mandates that government records be disclosed unless they fall under specific statutory exceptions, setting the framework for information requests.

The Privacy Act grants individuals the right to access information about themselves held in federal agency records upon request. Jurisdiction for courts to compel disclosure exists only when records are improperly withheld. If a plaintiff claims an agency failed to disclose information as required by the Freedom of Information Act (FOIA) or the Privacy Act, the court may review the records in camera to assess the appropriateness of any withholding under exemptions. Plaintiffs must exhaust administrative remedies before filing a FOIA claim, but failure of an agency to respond within the specified time frame constitutes exhaustion. 

In the case at hand, plaintiffs submitted a FOIA and Privacy Act request to the Transportation Security Administration (TSA) in May 2009, which acknowledged the request but did not provide records until December 2009, after the lawsuit began. The TSA disclosed 375 pages, withholding 303 and censoring portions of the 72 pages provided. An administrative appeal by the plaintiffs was not considered by the TSA while the lawsuit was ongoing. A supplemental release of documents occurred in August 2011, leaving 90 pages still undisclosed. The court finds that the delays were the TSA's fault, allowing the case to proceed under the constructive exhaustion doctrine. 

Despite partial disclosures, the court retains jurisdiction due to unresolved issues, directing the TSA to submit a Vaughn Index to justify the withholding of remaining documents. The TSA bears the burden of proving the adequacy of its FOIA disclosures and must specify how exemptions apply. Additionally, under the Privacy Act, plaintiffs have a right to request amendments to records they allege are fraudulent, inaccurate, or incomplete.

An individual has the right to examine personal records under the Privacy Act, but this right is distinct from the right to amend records deemed inaccurate, irrelevant, untimely, or incomplete. While there is no statutory exhaustion requirement for accessing records, an administrative process is necessary to amend them. Pellegrino may have a cause of action if she can show she requested an amendment, faced a denial, and subsequently had that denial upheld on appeal, as per 5 U.S.C. 552a(d). However, Pellegrino has not indicated that she followed the required procedures for amending her records. The complaint lacks clarity regarding her requests for amendments, responses from the TSA, or any appeals against adverse decisions. Therefore, it is inferred that she did not exhaust her administrative remedies, which deprives the district court of jurisdiction to hear her claim.

The court reviewed the pleadings for viable claims and concluded that any claims not explicitly discussed lacked clarity and were dismissed. Additionally, the complaint describes a private screening room referred to as "the closet," where Pellegrino requested the TSA official in charge to be called. Although TSA Federal Security Director Robert Ellis was notified, neither he nor a representative arrived. Pellegrino informed her husband that she was being re-detained, and Waldman sought information from TSO Labbee, who instead inquired about Pellegrino's medical history, particularly regarding mental health medications. In April 2007, the TSA stated that no video recordings of the incident existed, despite the plaintiffs' belief that surveillance footage was available but lost or destroyed. The court noted that documents submitted with the complaint could be considered in evaluating a motion to dismiss, as established in Buck v. Hampton Twp. Sch. Dist.

The analysis reorganizes and clarifies the alleged claims in the civil action. Waldman has standing to claim negligent infliction of emotional distress due to witnessing tortious conduct against his wife; however, the claim is dismissed since he did not experience physical harm. Under the Federal Tort Claims Act (FTCA), only the United States can be sued, leading to the dismissal of claims against individual defendants and the TSA. Plaintiffs cannot pursue FTCA claims for TSA officers' failure to adhere to internal policies as no plausible legal basis has been provided. Defendants argue that Plaintiffs frame their claims as constitutional violations instead of torts, necessitating dismissal. Nonetheless, the Complaint asserts that defendants USA and TSA are liable under the FTCA for damages caused by TSA screeners, meeting the necessary legal standard. Plaintiffs may pursue both Bivens claims for constitutional violations and FTCA claims for torts from the same incident. The Third Circuit's interpretation regarding whether TSA employees qualify as "investigative or law enforcement officers" under the FTCA remains unresolved, and the court does not conclude that TSA employees cannot be considered such based solely on their agency affiliation. Additionally, much of the distress cited by Plaintiffs arises from alleged defamatory actions by TSA agents, which is barred under the FTCA's exception for certain conduct.

Defendants do not dispute that Pellegrino engaged in protected speech. The existence of probable cause for arrest does not negate a claim for malicious prosecution, as each criminal charge must have probable cause for prosecution. Pellegrino alleges that the police failed to interview witnesses, consider her account, or review readily available surveillance footage before her arrest; however, these actions were not necessary to establish probable cause. Defendants argue that Pellegrino cannot prove a favorable termination of her criminal case because her acquittal was due to suppressed evidence, but this misinterprets the law, as favorable termination of some charges does not preclude overall favorable termination when all charges against her were dismissed. Pellegrino also claims against unnamed TSA employees for destroying surveillance evidence, arguing this violated her due process rights, but has not adequately pleaded such a deprivation. The Department of Justice does not provide representation for unnamed defendants in their individual capacities and seeks dismissal of claims against TSA agents in their official capacities. Claims under 42 U.S.C. § 1988 are dismissed, as it does not create an independent federal cause of action. The request for relief under the Declaratory Judgment Act is also rejected. There is no requirement for exhaustion of administrative remedies before filing a claim regarding the Privacy Act, and if required, it is not jurisdictional. FOIA allows individuals to seek records from public agencies regardless of personal stake, and if Waldman's name appears on the record requests with Pellegrino, he has standing for that claim. However, only Pellegrino has standing under the Privacy Act for her records. The TSA's decision to withhold certain records will be reviewed de novo, assessing compliance under both FOIA and the Privacy Act simultaneously, as exemptions under FOIA also apply to the Privacy Act.