MEMORANDUM

JUAN R. SÁNCHEZ, Chief District Judge.

On May 23, 2015, Plaintiff Rodney Handy, Jr. was shot outside the Pasa La Hookah nightclub in Philadelphia, Pennsylvania. Handy alleges that, rather than search for the real shooter, Defendants, Detective John Palmiero1 and Sergeant Ubirajara Baldomero of the Philadelphia Police Department (the Department), targeted him as a suspect in retaliation for a prior lawsuit he filed against the Department.2 The campaign against Handy allegedly reached its zenith when Defendants searched Handy's home, purportedly in violation of his Fourth Amendment rights, and smeared him in the Philadelphia Daily News, purportedly in violation of state law. Before the Court are Defendants' motion for summary judgment (Document 23) and Handy's motions to strike Defendants' Answer to his Amended Complaint (Document 24) and Defendants' opposition to Handy's motions to strike (Document 25). The Court will grant summary judgment in Defendants' favor because they are entitled to qualified immunity, and the Court lacks supplemental jurisdiction to consider Handy's state claims. Moreover, in light of the Court's decision on the merits, the Court will dismiss Handy's motions to strike as moot.

FACTS3

The events at issue took place in late May, 2015. At around 6:25 a.m. on the morning of May 23, 2015, Plaintiff Rodney Handy, Jr. was discovered by police hiding in his white Toyota Avalon near the Pasa La Hookah nightclub in Philadelphia, Pennsylvania, see Mot. for Summ. J. Ex. I at 44:2, 119:13-15, with blood on his face and streaked down the side of the vehicle, id. Ex. C at 1. Handy told officers that he had been shot in his left foot but claimed not to have seen who shot him and refused to provide any additional information. Id.; see also id. Ex. A at 1 (describing Handy as "uncooperative"); id. Ex. B at 1 (same). Handy was then transported to the Frankford Torresdale Hospital for treatment. Id. Ex. C at 1. About an hour and a half later, Palmiero, a detective for the Department, logged six .40 caliber fired cartridge casings from the scene of Handy's shooting as evidence. Id. Ex. E at 1.

At approximately 8:30 a.m. on the morning of May 23, Palmiero interviewed Handy at the hospital. During the interview, Handy claimed that he "did not remember" where he was when he was shot and disclaimed any knowledge of the identity of his assailant. Id. Ex. G at 1. Handy also told Palmiero that he legally owned a .40 caliber firearm, which he kept locked in his house Id. at 2. When Palmiero asked Handy whether he had any weapons inside the white Avalon, Handy stated, "not that I know of." Id.

At 1:51 p.m., Magisterial District Judge Kevin Devlin signed a search warrant prepared by Palmiero for Handy's Toyota Avalon, which identified the evidence to be searched and seized as "proof of ownership, firearms, ballistic evidence, and any other item that may be of evidence value or assist with the investigation." Id. Ex. J at 1. The warrant was accompanied by a typed affidavit of probable cause. Id. Ex. F at 1. In pertinent part, the affidavit claimed that probable cause existed to search Handy's car

Id. Handwritten on the affidavit is a notation: "Approved ADA Harrell 5/23/15 12:24 p.m." Id. The warrant was served at 2:30 p.m., and two cell phones and a photo identification were recovered. Id. Ex. J at 1.

The following day, on May 24, 2015, Palmiero sought a warrant to search Handy's home. See Id. Ex. K. The warrant indicates that it was approved by ADA Harrell at 10:32 a.m. that morning, and signed by a Magistrate Judge Bedford at approximately 11:00 a.m. Id. With respect to probable cause, the warrant directs the issuing authority to "see continuation for facts and circumstances."4 A search was executed pursuant to the warrant by a team of officers,5 which included both Palmiero and Sergeant Baldomero, not long thereafter, and several items were recovered. Id. (noting the recovery of a "40 cal walter handgun," "2 loaded magazines," "1 box ammunition," "2 bullet proof vests," and a "gun purchase receipt").

On May 26, 2015, the Philadelphia Daily News published an article recounting the events described above.6 The article also indicated that "[p]olice . . . retrieved two plastic jars containing a `green weedy substance' that were left behind in the emergency room." Id. Ex. L at 1. According to the article, "[t]he jars were left inside the room where Handy was treated." Id.

Ultimately, Handy was cleared of any wrongdoing. On May 22, 2017, he filed this action in the Philadelphia Court of Common Pleas. Defendants filed a notice of removal in this Court on July 12, 2017. Defendants filed a motion to dismiss the Complaint, which the Court granted on October 17, 2017. See Order, Oct. 17, 2017, ECF No. 11. On November 16, 2017, Handy filed the Amended Complaint, which Defendants, again, moved to dismiss. The Court granted that motion in part, allowing only Handy's Fourth Amendment, defamation, slander, and libel claims to proceed. See Order, Sept. 28, 2018, ECF No. 18.

On July 2, 2019, Defendants contemporaneously answered Handy's Amended Complaint and moved for summary judgment. See Answer, July 2, 2019, ECF No. 22; Mot. for Summ. J., July 2, 2019, ECF No. 23. On July 16, 2019, Handy moved to strike Defendants' Answer, given that it was filed well-beyond the timeline established by Rule 12(a)(4)(A) and no leave had been sought pursuant to Rule 6(b). See Mot. to Strike Answer, July 16, 2019, ECF No. 24. On August 9, 2019, Handy filed a second motion to strike, this time pertaining to Defendants' opposition to his motion to strike their Answer. See Mot. to Strike Opp'n to Mot. to Strike Answer, Aug. 9, 2019, ECF No. 37. All three motions are now before the Court for disposition.

DISCUSSION

As noted above, only a handful of Handy's claims have advanced beyond the pleading stage: his Fourth Amendment claim pursuant to 42 U.S.C. § 1983 and his state common law claims for defamation, slander, and libel. The Court will grant summary judgment in Defendants' favor because they are entitled to qualified immunity, and, the Court will decline to exercise supplemental jurisdiction over the defamation, slander, and libel claims and dismiss them for lack of subject matter jurisdiction.

A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine" dispute is one where "the evidence is such that a reasonable jury could return a verdict for the [non-moving] party." Id. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citation and internal quotation marks omitted). To defeat summary judgment, "the non-moving party must present more than a mere scintilla of evidence; there must be evidence on which the jury could reasonably find for the [non-movant]." Burton v. Teleflex, Inc., 707 F.3d 417, 425 (3d Cir. 2013) (alteration in original) (citation and internal quotation marks omitted).

The Court begins with Handy's Fourth Amendment claim under 42 U.S.C. § 1983, which creates a federal statutory mechanism for private individuals to vindicate deprivations of their constitutional rights by actors personally involved in the alleged deprivation.7 See Albright v. Oliver, 510 U.S.C. 266, 271 (1994) ("Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." (internal quotations omitted)); see also Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (noting "[a] defendant in a civil rights action must have personal involvement in the alleged wrongs"). To prevail on his claim, Handy must produce evidence that "a person acting under color of state law engaged in conduct that violated a right protected by the Constitution or laws of the United States." Morrow v. Balaski, 719 F.3d 160, 165-66 (3d Cir. 2013). In evaluating a § 1983 claim, a court must first "identify the exact contours of the underlying right said to have been violated." Id. at 166 (quoting Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en banc)). The Court must then "determine whether the plaintiff has alleged a deprivation of a constitutional right at all." Id.

Defendants' assert Handy's § 1983 Fourth Amendment claim fails on the basis of qualified immunity. The threshold issue is whether Defendants have waived the qualified immunity defense by failing to timely plead qualified immunity in their Answer and raising it in their motion for summary judgment for the first time.

The Court's consideration of the waiver issue requires recounting the specific procedural history of this matter. On September 28, 2018, the Court denied Defendants' motion to dismiss Handy's Amended Complaint. By rule, this obligated Defendants to file their Answer on or before October 12, 2018. See Fed. R. Civ. P. 12(a)(4)(A) (requiring service of a responsive pleading within 14 days "after notice of the court's action" on a Rule 12 motion if "the court denies the motion"). However, because of defense counsels' "calendaring issue," Defendants did not file their Answer until July 2, 2019—more than eight months after it was due. See Answer, July 2, 2019, ECF No. 22. They also did not file a motion for leave to file so late, or establish excusable neglect for doing so, as is also required by Rule 6. See Fed. R. Civ. P. 6(b)(1)(B) ("When an act may or must be done within a specified time, the court may, for cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect."). Based on these procedural violations, Handy asks the Court to strike the Answer in its entirety, including Defendants' qualified immunity affirmative defense. Defendants argue there is no basis to strike their Answer because Handy has not offered any evidence their delay resulted in any prejudice to him.

The Court need not resolve the tardiness issue because qualified immunity may be raised on summary judgment, independent of the filing of an answer.8 See Schneyder v. Smith, 709 F.Supp.2d 368, 387 (E.D. Pa. 2010) (noting "[a] defendant may raise qualified immunity on the pleadings in a motion to dismiss, on summary judgment, or as an affirmative defense at trial"). The Supreme Court has directed district courts to consider qualified immunity at the "earliest possible stage in the litigation," Hunter v. Bryant, 502 U.S. 224, 227 (1991). Nevertheless, in this Circuit, "the defense of qualified immunity is not necessarily waived by a defendant who fails to raise it until the summary judgment stage." Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 210 (3d Cir. 2001); see also Oliver v. Roquet, 858 F.3d 180, 188 (3d Cir. 2017) (noting qualified may be raised "even after trial if the plaintiff suffers no prejudice"); Kleinknect v. Gettysburg Coll., 989 F.2d 1360, 1374 (3d Cir. 1993) (declining to find the immunity issue waived "even though a motion for summary judgment is not the most appropriate way to raise a previously unpled defense of immunity"). Rather, a waiver will only be found after the district court assesses whether the defendant demonstrated "a reasonable modicum of diligence in raising the defense" and "whether the plaintiff has been prejudiced by the delay." Id.

The Court will not find a waiver because Handy has not alleged prejudice and the Court perceives none on its own.9 At no point did Handy claim that he was denied the ability to develop a record in opposition to qualified immunity. Moreover, the Court finds that such a claim would likely fail, considering the factual question germane to qualified immunity here, i.e., whether the search of his house was supported by probable cause, is the same factual question raised by the merits of his claim. In other words, the Court is skeptical of Handy's ability to establish prejudice because his claim under the Fourth Amendment and Defendants' claim for immunity turn on the resolution of the same question, an issue for which there appears to have been extensive discovery—the justification and authorization for the search of his home. Moreover, the Court notes that Handy has failed to allege, much less produce evidence suggesting, that Defendants' decision to raise the issue of qualified immunity was due to anything other than their counsels' inattention to detail, and not for some amorphous tactical or strategic advantage. See Schneyder, 709 F. Supp. 2d at 387 (noting a court may waive qualified immunity "when necessary to protect against the strategic use of the defense by defendants who stand to benefit from delay" (internal quotation marks omitted)). As a result, the Court finds Handy has failed to show that he was prejudiced by Defendants' failure to raise qualified immunity at an earlier state and will not find the defense waive.

Having determined qualified immunity was not waived, the Court turns to its application. "[Q]ualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (internal quotations omitted). Government officials are not liable under § 1983 "as long as their actions reasonably could have been thought consistent with the rights they are alleged to have violated." Kedra v. Shroeter, 876 F.3d 424, 434 (3d Cir. 2017). Qualified immunity is an affirmative defense for which the defendants bear the burden of proof. See Brown v. Cwynar, 484 F. App'x 676, 680 (3d Cir. 2012).

In deciding whether qualified immunity applies, the Court must consider two questions: "First, the constitutional question is `whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right'[;] . . . Second, the qualified immunity question is `whether the right at issue was "clearly established" at the time of a defendant's alleged misconduct.'" Southerland v. Pennsylvania, 389 F. App'x 166, 170 (3d Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).10 The first prong is a "factual question," which is appropriate for juries to decide, while the second prong should be decided by courts. Curley v. Klem, 499 F.3d 199, 211 (3d Cir. 2007). Nevertheless, a defendant may be entitled to summary judgment on qualified immunity grounds where "discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts" which would make out a violation of a constitutional right. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Here, Defendants offer two arguments in favor of qualified immunity. First, they claim Handy has failed to show the search of his house was illegal under the Fourth Amendment in light of Magistrate Judge Bedford's signed warrant. Second, even assuming there was some kind of constitutional deprivation, they claim Handy has not established that whatever specific right may have been violated was clearly established. Handy opposes the application of qualified immunity, claiming that "in searching Plaintiff's home without having submitted an affidavit of probable cause to a neutral magistrate judge for an independent review," Defendants "violated long-standing and fundamental principles of Fourth Amendment law." Opp'n to Mot. for Summ. J. 19. He offers no additional specificity.

The Court finds that Defendants are entitled to qualified immunity because Handy has not shown that "no reasonably competent officer would have concluded that a warrant should issue" to search his home. Messerschmidt v. Millender, 565 U.S. 535, 547 (2012). This conclusion requires the Court to consider, as a threshold matter, whether there was a legally sufficient warrant to search this location, which Handy contests because no affidavit of probable cause was produced in discovery. Although there is no affidavit in the record before the Court, the Court finds that Handy has failed to establish a genuine issue of fact as to its existence.

As noted above, the record before the Court contains a search warrant application for Handy's home, "6351 E. Fariston Dr[.] Phila[Delphia], PA[,] 19120, Brick Row Home." Mot. for Summ. J. Ex. K at 1. The items to be seized were identified as "40 caliber WALTER HANGUN SER#FA#05808, 40 [] caliber AMMUNITIONS AND ANY OTHER . . . HANDGUN THAT MAY BE OF EVIDIENCE VALUE THROUGH INVESTIGATION AND AM[M]UNITITIONS." Id. The warrant application is signed by Palmiero and the issuing authority, who appears to be a Magistrate Judge Bedford. Id. The warrant also indicates it was "approved ADA Harrell 5/24/15 10:30 a.m." Id. Importantly, the warrant application also contains a box for the requesting officer to describe the "facts and circumstances" upon which the "probable cause belief is based." Id. In response to this prompt, the warrant application states "***SEE CONTINUATION FOR FACTS AND CIRCUMSTANCES***." Id. There is also a box which directs the requesting officer to "check here if additional paper is used." Id. The box is checked on the warrant application. Id.

Notwithstanding the warrant application's direction to "see continuation for facts and circumstances" supporting probable cause, the record does not contain the supporting affidavit. Handy contends this is because no affidavit was ever presented to Magistrate Judge Bedford, and, on this basis, claims the search was illegal. See Opp'n to Mot. for Summ. J. 17. However, the record contradicts Handy's assertion, and he has not supported it with evidence of his own.11 For example, at Palmiero's deposition, Handy's counsel asked him specifically whether an affidavit existed for the search of the house. Palmiero testified that one did, see Id. Ex. C 116:14-24, and that Handy's grandfather reviewed it, id. 112:2-3. Moreover, the warrant as described above indicates in two separate locations that the warrant continued beyond the page that is presently part of the record. See Mot. for Summ. J. Ex. K at 1. In light of the absence of evidence to the contrary, the Court finds this is circumstantial evidence sufficient to demonstrate the additional pages existed. Moreover, as to the contents of those pages, when asked whether he had any memory of the contents of the missing page at his deposition, Palmiero testified that he "would go as far to reach that it's almost identical to [the warrant for Handy's car] with the exception of the area to be searched." Opp'n to Mot. for Summ. J. Ex. C. 117:8-15. Handy has cited no evidence to contradict Palmiero's testimony on this point either. As a result, the Court finds that he has failed to establish a genuine issue of material fact as to the absence of an affidavit of probable cause supporting the warrant to search his home. See Yacoub v. Jaguar Land Rover N. Am., LLC, No. 11-3420, 2013 WL 5411066, at *1 (D.N.J. Sept. 26, 2013) ("If the moving party meets its threshold burden, the opposing party must present actual evidence that creates a genuine issue as to a material fact for trial.").

Having determined the record does not support the existence of a fact issue as to the existence of an affidavit of probable cause for the search of Handy's home, the Court turns next to the legal standard applicable to resolving the qualified immunity question. Here, Handy is twice disadvantaged because the uncontroverted evidence establishes that the warrant for his house was not only reviewed and approved by Magistrate Judge Bedford, but also by Assistant District Attorney Harrell. See Fiore v. City of Bethlehem, 510 F. App'x 215, 220 (3d Cir. 2015) (noting the "climb" to overcome qualified immunity is "even steeper" where officers relied on the advice of the prosecutor and obtained a warrant from a neutral magistrate). Each level of review entitles Defendants to its own, discrete presumption of qualified immunity. See Messerschmidt, 565 U.S. at 546-47 (noting "where the alleged Fourth Amendment violation involves a search and seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner."); see also Kelly v. Borough of Carlisle, 622 F.3d 248, 255-56 (3d Cir. 2010) ("[W]e hold that a police officer who relies in good faith on a prosecutor's legal opinion that the arrest is warranted under the law is presumptively entitled to qualified immunity from Fourth Amendment claims premised on a lack of probable cause."). Handy may rebut the presumption afforded by Magistrate Judge Bedford's review by showing that "no reasonably competent officer would have concluded that a warrant should issue." Messerschmidt, 565 U.S. at 547 (quoting Malley v. Briggs, 475 U.S. 335 (1986)). The presumption afforded by ADA Harrell's approval may be rebutted by Handy if he shows that "a reasonable officer would not have relied on the prosecutor's advice." Kelly, 622 F.3d at 256.

Handy has failed to rebut the presumption afforded by Defendants' reliance on Magistrate Judge Bedford's warrant. As discussed above, Palmiero testified that it was his recollection that the warrant supporting the affidavit was substantially similar to the warrant for Handy's car. Opp'n to Mot. for Summ. J. Ex. C. 117:8-15. That affidavit claimed probable cause was present to search for evidence of an aggravated assault because Handy was (1) "uncooperative" during the investigation, (2) injured in a manner consistent with having been in a physical fight, and (3) wounded in a manner "consistent with a self[-]inflicted wound. See Mot. for Summ. J. Ex. F at 1. The affidavit also explains that a search of police databases revealed that Handy owned a .40 caliber pistol, which is the same caliber of the six fired cartridge casings recovered from the season, and possessed a concealed carry license. See id. Even if, in hindsight, the affidavit to search the house might have been somewhat questionable given the sequence of events,12 the Fourth Amendment does not require perfection. See Illinois v. Gates, 462 U.S. 213, 238 (1983) (requiring only "a fair probability that contraband or evidence of a crime will be found in a particular place" to satisfy the constitutional minimums set by the Fourth Amendment). As a result, the Court finds that Handy has not shown that the warrant to search his home was so baseless that "no reasonably competent officer would have concluded that a warrant should not issue." Messerschmidt, 565 U.S. at 547. Palmiero and Baldomero are therefore entitled qualified immunity and the Court will grant summary judgment in their favor.13

Lastly, the Court turns to Handy's state defamation, slander, and libel claims, which it will dismiss for lack of subject matter jurisdiction. Under 28 U.S.C. § 1367(a), the Court may exercise supplemental jurisdiction over state law claims that "form part of the same case or controversy" as the claims over which it has original jurisdiction. Where the claims implicating original jurisdiction are dismissed and only state claims remain, however, the court "may" decline to exercise supplemental jurisdiction. 28 U.S.C. § 1367(c)(3). In this situation, the Third Circuit has directed district courts to decline to exercise jurisdiction "unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so." Sarpolis v. Tereshko, 625 F. App'x 594, 599 (3d Cir. 2016) (quoting Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)). Here, no party has offered a compelling rationale for the continued exercise of this Court's jurisdiction. As a result, it will dismiss Handy's state claims for lack of jurisdiction.14

CONCLUSION

The Court will grant summary judgment in Defendants favor on Handy's § 1983 claim for violation of Fourth Amendment rights (Count V) and dismiss his claims for defamation (Count VII), libel (Count VIII), and slander (erroneously labeled as "Count VIII") for lack of jurisdiction. The Court will also dismiss Handy's motions to strike Defendants' Answer and their opposition to his motion to strike as moot.

An appropriate order follows.