Hans Scheing et al v. Officer Casey Fountain et al
MEMORANDUM regarding the Motion to Dismiss (D.I. 12 ). Signed by Judge Richard G. Andrews on 5/18/2016. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HANS SCHEING and TINA WEBBSCHEING,
DEPARTMENT OF NATURAL RESOURCES
AND ENVIRONMENTAL CONTROL, et al.,
Civ. No. 15-1028 RGA
This action arises out an agreement whereby Plaintiffs Hans and Tina Webb-Scheing were
hired by the Vadalas, an elderly couple, to replace a failed septic tank at their home. When it
appeared that no work was going to be done, Mrs. Vadala filed a complaint with the Department
of Natural Resources and Environmental Control ("DNREC"). DNREC acted on the complaint
by arresting Mr. Scheing and prosecuting claims against him in court. Plaintiffs were unhappy
with how events unfolded, claiming that they had done nothing wrong. Accordingly, Plaintiffs
filed suit in this court for, among other things, false arrest, false imprisonment, and malicious
prosecution. Currently before the court is Defendants' motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6). (D.I. 12). For the reasons that follow, Defendants' motion is GRANTED. Plaintiffs'
request for leave to amend is GRANTED.
On November 6, 2015, Plaintiffs filed a complaint with four counts: (i) malicious
prosecution, false arrest, and false imprisonment; (ii) "Monell" claims; (iii) violation of due
process under the Fourth and Fourteenth Amendments of the U.S. Constitution; and (iv) loss of
consortium. (D.I. 1). The original complaint named as defendants Frank and Winifred Vadala,
their daughter Frances Resto, who owns the property where the Vadalas live, DNREC, and the
following current and former DNREC employees in both their official and individual capacities:
Daniel Albanese, Dave Schepens, Andrew Whitman, and Officer Casey Fountain. The complaint
contains no allegations regarding the roles, responsibilities, or titles of defendants Albanese,
Schepens, and Whitman.
Plaintiffs responded to Defendants' first motion to dismiss (D.I. 4 & 6) by filing their first
amended complaint (D.I. 10). The amended complaint dropped the Vadalas, Resto, and DNREC
as defendants, leaving the DNREC employees as the only remaining defendants in this action. The
amended complaint also dropped the claims against the DNREC employees in their "official"
capacity, proceeding against those defendants only in their "individual" capacity. Finally, the
amended complaint dropped the "Monell" claims and combined the due process and malicious
prosecution claims into a single count (Count I), in which Hans Scheing is the Plaintiff. Plaintiffs
kept the loss of consortium count (Count II), which purports to be on behalf of both Plaintiffs. The
factual allegations in the complaint otherwise remained essentially the same. In briefing on this
motion, Plaintiffs withdrew their claim for a due process violation under Count I, relying instead
"exclusively on their cause for malicious prosecution." (D .I. 16 at 10).
On July 22, 2013, the Vadalas contracted with Delaware Septic Service, LLC (Mrs.
Scheing's company and Mr. Scheing's employer) to repair or replace a failed septic tank at the
Vadalas' home. (D.1. 10 ir 10). Mr. Scheing performed soil testing that day in order to determine
the type of septic system that would be required.
11). Afterwards, Mr. Scheing
purportedly provided updates to the Vadalas on numerous occasions regarding ongoing services
and repairs to the property. (Id. at if12).
Approximately two months later, on September 10, 2013, Mrs. Vadala filed a complaint
with DNREC claiming that Plaintiffs failed to perform the contracted work. (Id. at if 13). Plaintiffs
allege that Mrs. Vadala made this claim "falsely." (Id.). The amended complaint also alleges that
before Mrs. Vadala filed her complaint with DNREC, she contacted Albanese claiming that
nothing had been done to their house pursuant to the contract with Plaintiffs. (Id. at if 14). The
amended complaint does not allege why Mrs. Vadala contacted Albanese in particular, how
Albanese responded to Mrs. Vadala's allegations, or what Albanese did with the information she
provided, if anything.
On or about October 14, 2013, Officer Fountain obtained a warrant for Mr. Scheing's arrest
for two felony charges. (Id. at if 18; see D.I. 5-1). Despite allegations in the amended complaint
that Mrs. Vadala and Officer Fountain met on "more than one occasion" in September 2013 to
discuss her complaint, Plaintiffs claim Officer Fountain filed the warrant without first verifying
whether Mrs. Vadala's complaint was "accurate." 1 (D.I. 10 iii! 15, 18).
Plaintiffs allege that a few days before the issuance of the arrest warrant, Plaintiffs received
the soil report from their expert. (Id. at if 16). Mr. Scheing then left a voicemail with the Vadalas
asking them to sign a permit application that would be submitted to DNREC along with the soil
Relying on facts put forth in the warrant, Defendants' opening brief provided additional .
information regarding Officer Fountain's investigation that was not alleged in the complaint.
According to Mrs. Vadala, Mr. Scheing said that he was waiting on permits from DNREC and that
the delay was therefore because of DNREC, not him. (D.I. 13 at 4). Officer Fountain contacted
DNREC's Water Resources Office and was informed that no permit application had been filed by
Mr. Scheing or anyone else for the Vadalas' property. (Id.). Officer Fountain concluded that, not
only was work not being performed on a leaking tank, but that Mr. Scheing was not being forthright
about the reason for the delay. (Id.).
report. (Id. at ,-r 17). A few days after the issuance of the arrest warrant, the soil report was "turned
over" to and marked received by DNREC. (Id. at ,-i,-r 19, 20).
Around October 21, 2013, Officer Fountain contacted Mr. Scheing and told him that she
wanted to "talk about some contracts." (Id. at ,-r 21 ). Officer Fountain purportedly told Mr. Scheing
that he did not need a lawyer and never mentioned that he was being charged with theft or home
improvement fraud. (Id.). Plaintiffs claim that later, while at a police station, Mr. Scheing told
Officer Fountain that he did the soil test. (Id. at ,-r 22). But Officer Fountain said that there was
nothing Mr. Scheing could say or do to prevent his arrest, and arrested him. (Id.).
On November 6, 2013, the criminal charges against Mr. Scheing were dismissed by the
Court of Common Pleas. (Id. at ,-r 26). Then, in January 2014, Mr. Scheing was indicted by a
grand jury on four felony charges, including theft and home improvement fraud. (D.I. 5-2). Those
claims were dismissed on September 16, 2014. (D.I. 10 W27, 31).
The amended complaint contains no allegations regarding the how, what, when, or why of
any involvement by Schepens or Whitman in either Mrs. Vadala's complaint or Mr. Scheing's
arrest and prosecution. The entirety of the allegations regarding Schepens and Whitman is that,
along with Officer Fountain and Albanese, they "knew Hans Scheing had conducted a soil sample
at the property, and that Hans had done nothing wrong." (Id. at ,-i 29). The amended complaint
does not allege what Albanese, Schepens, or Whitman did with that knowledge, or, if they failed
to act, what duty they had to act because of that knowledge. Finally, the amended complaint
alleges that these defendants "conspired against Plaintiffs towards benefiting Schepens' son's
competing septic business (in the same area)." (Id. at ,-r 30). There are no other allegations
regarding the conspiracy and no claim for conspiracy.
STANDARD OF REVIEW
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the
complaint's factual allegations as true. See Bell At!. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007). Rule 8(a) requires "a short and plain statement of the claim showing that the pleader is
entitled to relief." Id. at 555. The factual allegations do not have to be detailed, but they must
provide more than labels, conclusions, or a "formulaic recitation" of the claim elements. Id.
("Factual allegations must be enough to raise a right to relief above the speculative level ... on the
assumption that all the allegations in the complaint are true (even if doubtful in fact)."). Moreover,
there must be sufficient factual matter to state a facially plausible claim to relief. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The facial plausibility standard is satisfied when the complaint's factual
content "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id. ("Where a complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between possibility and plausibility of entitlement to
relief." (internal quotation marks omitted)). A "court ruling on a motion to dismiss may not
consider matters extraneous to the pleadings," except a court may consider documents "integral to
or explicitly relied upon in the complaint." In re Burlington Coat Factory Sec. Litig, 114 F.3d
1410, 1426 (3d Cir. 1997) (emphasis and internal quotation marks omitted).
Defendants set forth numerous grounds for dismissal in their opening brief, most of which
Plaintiffs did not address in their opposition. The lack of a substantive response to most of
Defendants' arguments makes it difficult to find that Defendants' ·motion lacks merit.
Accordingly, as discussed below, the claims against Albanese, Schepens, and Whitman must be
dismissed for failure to allege any personal involvement. This leaves only Officer Fountain in her
individual capacity. Her personal involvement is adequately alleged, but the claims against her
for false arrest, false imprisonment, and malicious prosecution must nevertheless be dismissed for
failure to allege essential elements of the claims. Finally, if the complaint is dismissed, Plaintiffs
have requested leave to amend. (D.1. 16 at 8).
A. Lack of Personal Involvement
Plaintiffs did not respond to Defendants' argument that the claims against Albanese,
Schepens, and Whitman must be dismissed for failure to allege any personal involvement,
suggesting that Plaintiffs concede the point. Regardless, I agree with the substance of Defendants'
argument. Count I is brought pursuant to 42 U.S.C. § 1983. (D.I. 10 at ii 45). Accordingly, the
Defendants "must have personal involvement in the alleged wrongs; liability cannot be predicated
solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988). "Personal involvement can be shown through allegations of personal direction or of
actual knowledge and acquiescence." Id. at 1208. It is insufficient that a defendant was simply
employed at the government agency where the underlying grievances arose.
allegations of participation, or actual knowledge and acquiescence, "must be made with
appropriate particularity." Id.
The complaint must state the conduct, time, place, and persons
responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.
Plaintiffs' amended complaint contains next-to-no facts regarding Albanese, Schepens and
Whitman. With respect to Albanese, Plaintiffs allege only that Mrs.· Vadala contacted him prior
to filing her complaint with DNREC. Plaintiffs do not allege that Albanese (as opposed to Officer
Fountain) did anything with that information. Plaintiffs' claim against Schepens and Whitman is
on even shakier ground. Plaintiffs allege no facts against either defendant other than to state in a
single, conclusory sentence that they conspired against Plaintiffs to benefit Schepens' son's
competing business. But the amended complaint contains no specific factual allegations regarding
a "combination, agreement, or understanding among all or between the defendants to plot, plan or
conspire to carry out the challenged conduct." Wood v. Williams, 568 F.App'x 100, 107 (3d Cir.
June 4, 2014) (affirming dismissal of§ 1983 civil conspiracy claim where these allegations were
Accordingly, the amended complaint fails to allege any personal involvement of
Albanese, Schepens and Whitman, and those defendants must be dismissed.
B. False Arrest, False Imprisonment, and Malicious Prosecution
The gist of Plaintiffs' false arrest, false imprisonment, and malicious prosecution claim
appears to be that Defendants conducted an insufficient investigation before obtaining the arrest
warrant and grand jury indictment. (D.I. 10
iii! 18, 29, 33).
However, this alone is not enough
where Plaintiffs fail to plead essential elements of each claim.
A plaintiff will succeed on a§ 1983 action for false arrest made pursuant to a warrant only
ifthere is evidence that the officer "'knowingly and deliberately, or with a reckless disregard for
the truth, made false statements or omissions that create a falsehood in applying for a warrant;'
and (2) that 'such statements or omissions are material, or necessary, to the finding of probable
cause."' Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000) (quoting Shenvood v. Mulvihill,
113 F.3d 396, 399 (3d Cir. 1997)). The amended complaint, however, contains no allegations, not
even in conclusory terms, that Officer Fountain made false statements2 or omitted exculpatory
information in her application for the arrest warrant. Plaintiffs' complaint seems to be more that
Officer Fountain should have conducted additional investigation. In fact, Plaintiffs make no
There is an allegation that Mrs. Vadala made a false statement (D.I. 10 at 3), but that is not the
same thing as saying Officer Fountain made a false statement.
factual allegations whatsoever with regard to either the warrant or the affidavit of probable cause
prepared and submitted as application for the warrant. Having failed to allege any of these facts,
Plaintiffs' § 1983 claim for false arrest fails as a matter oflaw.
The claim for false imprisonment also fails, because "an arrest based on probable cause
[can] not become the source of a claim for false imprisonment." Groman v. Twp ofManalapan,
47 F.3d 628, 636 (3d Cir. 1995); Neefe v. Layfield, 2005 WL 2977782, at *4 n. 4 (D. Del. Nov. 7,
2005) ("Because the arrest was lawful, Plaintiffs unlawful imprisonment claim must fail.").
Although the existence of probable cause in a § 1983 action is typically a question of fact, the court
may conclude that probable cause existed as a matter oflaw if the evidence, viewed most favorably
to a plaintiff, would not reasonably support a contrary factual finding. Sherwood, 113 F.3d at 401.
Probable cause exists "when the facts and circumstances within the arresting officer's
knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense
has been or is being committed by the person to be arrested." Orsatti v. New Jersey, 71 F.3d 480,
483 (3d Cir. 1995). In assessing probable cause, the court considers "not whether the person
arrested in fact committed the offense but whether the arresting officers had probable cause to
believe the person arrested had committed the offense." Dowling v. City ofPhi/a., 855 F.2d 136,
141 (3d Cir. 1988). Once an officer believes she has probable cause, she is "not required to
undertake an exhaustive investigation in order to validate the probable cause." Merkle v. Upper
Dublin Sch. Dist., 211 F.3d 782, 790 n. 8 (3d Cir. 2000) (explaining that an officer had probable
cause, even though he did not interview every possible witness, because he had a credible report
from a witness to the alleged crime).
Plaintiffs fail to allege facts showing that Officer Fountain lacked probable cause in
obtaining the warrant. Plaintiffs acknowledge that Officer Fountain met with the victim, Mrs.
Vadala, on multiple occasions to discuss her complaint. (D.I. 10 at ,-r 15). These meetings were
sufficient to give Officer Fountain probable cause for an arrest. See, e.g., Merkle, 211 F.3d 782,
790 (3d Cir. 2000) (finding sufficient facts to establish probable cause for an arrest where police
officer "possessed knowledge of a credible report from a credible eyewitness"). 3 That Officer
Fountain did not take some additional action, unspecified by Plaintiffs, to corroborate Mrs.
Vadala's complaint, does not mean that Officer Fountain lacked probable cause for an arrest.
Finally, Plaintiffs fail to state a claim for malicious prosecution. To prove malicious
prosecution under § 1983, a plaintiff must show that: (1) the defendant initiated a criminal
proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the defendant initiated the
proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation ofliberty consistent with
the concept of seizure as a consequence of a legal proceeding. Estate of Smith v. Marasco, 318
F.3d 497, 521 (3d Cir. 2003).
I have not determined whether Plaintiffs pied each of the essential elements of a malicious .
prosecution claim, finding it sufficient for the purposes of this motion that Plaintiffs have clearly
failed to allege facts in support of the third element, an absence of probable cause. To start, all of
the same facts regarding probable cause that Plaintiffs failed to allege with respect to the false
arrest and false imprisonment claims also demonstrate a failure to state a malicious prosecution
claim. See Davis v. Rinehart, 2014 WL 4749192, at *4 (D. Del. Sept. 22, 2014) (holding that a
malicious prosecution claim failed because plaintiff failed to show lack of probable cause for his
arrest). As explained above, the amended complaint contains no allegations that Officer Fountain
The amended complaint alleges nothing that suggests Mrs. Vadala was not a credible
witness with personal knowledge of the events she was relating.
relied on false statements or omissions to procure the arrest warrant, or that she should have had
reason to believe that Mrs. Vadala was not a credible witness with personal knowledge.
In addition, a grand jury indictment is prima facie evidence of probable cause to prosecute.
King v. Deputy Atty. Gen. Del., 616 F. App'x 491, 495 (3d Cir. 2015); Trabal v. Wells Fargo
Armored Serv. Corp., 269 F.3d 243, 251 (3d Cir. 2001) (noting that an indictment establishes
probable cause ''by definition."). A presumption that probable cause exists will only be overcome
by evidence that the indictment was "procured by fraud, perjury or other corrupt means."
Woodyardv. Cty. ofEssex, 514 F. App'x 177, 183 (3d Cir. 2013)(quotingRase v. Bartle, 871 F.2d
331, 353 (3d Cir. 1989)). Plaintiffs pied no facts that the indictment was procured by fraud, perjury
or other corrupt means. An allegation, without any elaboration, that Mr. Scheing "was and is
innocent" (D.I. 10 ,-i 32) is not an allegation that there was a lack of probable cause. On a motion
to dismiss, the court is not required "to accept unsupported conclusions and unwarranted
inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d
160, 165 (3d Cir. 2013); Grubbs v. Univ. ofDel.Police Dep't, 2016 WL 1238923, at *9 (D. Del.
Mar. 29, 2016) (rejecting as a legal conclusion plaintiffs assertion that his prosecution lacked
probable cause). Accordingly, the claim for malicious prosecution, like the claims for false arrest
and false imprisonment, must be dismissed for failure to state a claim.
C. Loss of Consortium
A spouse's claim for loss of consortium is derivative of the other spouse's primary claim.
Rizzo v. E.l du Pont de Nemours & Co., 1989 WL 135651, at *4 (Del. Super. Ct. Oct. 31, 1999).
As a result, this count is viable only to the extent Mr. Scheing has a separate valid cause of action.
Id. Because he does not, this claim fails as well.
D. Leave to Amend
The grant or denial of an opportunity to amend is within the discretion of the court. In re
Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Federal Rule of Civil
Procedure 15(a)(2) provides that "[t]he court should freely give leave [to amend] when justice so
requires." Denial of leave to amend is appropriate if amendment would be futile. See In re
Burlington Coat Factory Secs. Litig., 114 F.3d at 1434. Because so few facts were alleged
regarding the personal involvement of the Defendants and the elements of each claim, I cannot
conclude that amendment would be futile. Accordingly, the court grants Plaintiffs' request for
leave to amend.
For the foregoing reasons, Defendants motion to dismiss Count I and Count II of the
amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) (D.I. 12) is GRANTED. Plaintiffs' request
for leave to amend is GRANTED. An appropriate order will be entered.
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