ZAMICHIELI v. ANDREWS et al
MEMORANDUM AND/OR OPINION. SIGNED BY CHIEF JUDGE GREGORY M. SLEET ON 3/17/15. 3/18/15 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF AND E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
WILLIAM ANDREWS, et al.,
Civil Action No. 12-cv-3200-GMS
The plaintiff, Wheeler Zamichieli ("the plaintiff'), a pro se litigant who is presently
incarcerated at the Federal Detention Center in Philadelphia, Pennsylvania, filed this civil rights
action in 2012. Before the court is the federal defendants' consolidated motion to dismiss the
plaintiffs third amended complaint and the plaintiffs opposition thereto. (D.I. 178.)
The case proceeds on the third amended complaint (D.I. 56) that raises numerous
constitutional and supplemental state claims against state and federal defendants. Counts VI and
VII are brought against the federal defendants and seek damages for alleged violations of the
Fourth and Fifth Amendments of the United States Constitution under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971). 1 The federal defendants
A civil rights claim against a federal defendant is governed by Bivens. In Bivens, the Supreme
Court created a federal tort counterpart to the remedy created by 42 U.S.C. § 1983 as it applies to
federal officers. To state a claim under Bivens, a claimant must show ( 1) a deprivation of a right
secured by the Constitution and laws of the United States; and (2) that the deprivation of the
right was caused by an official acting under color of federal law. See Brown v. Philip Morris,
Inc., 250 F.3d 789, 800 (3d Cir. 2001).
United States Attorney Zane David Memeger ("Memeger"), Assistant United States Attorney
Virginia Paige Pratter ("Pratter"), and Alcohol, Tobacco and Firearms Agent Patrick Henning
("Henning") (collectively, the "federal defendants") move for dismissal pursuant to Fed. R. Civ.
The court takes judicial notice that, following a lawful traffic stop, the plaintiff was
arrested on February 20, 2011 by Philadelphia Police Department officers following their
discovery of a weapon in the plaintiffs vehicle. (D.I. 56, ex.) A preliminary hearing was held in
State court, following which, the presiding judge found that the government met its burden of a
prima facie to hold the plaintiff for trial. (Id.) The United States Attorney's Office adopted the
case for federal prosecution and, on July 12, 2011, a criminal complaint was filed against the
plaintiff that had an affidavit attached to it that contained information obtained from Philadelphia
Police Department officers including the seizure of a firearm. (See United States ofAmerica v.
Zamichieli, 11-cr-00393-BMS (E.D. Pa. 2011) at D.I. 1.) A United States Magistrate Judge
issued a federal arrest warrant and the plaintiff was arrested and detained. (Id. at D.I. 2, 3, 4.)
The plaintiff was indicted on July 19, 2011 for violation of 18 U.S.C. § 922(g)(l) and detained
pending trial. (Id. at D.I. 6, 10.) While awaiting trial, the court granted the plaintiffs motion to
suppress the seized firearm. (Id. at D.I. 20, 30.) The motion was granted on December 9, 2011
and, on December 16, 2011, the United States filed a motion to dismiss the indictment. (Id. at
D.I. 32.) The indictment was dismissed without prejudice on December 19, 2011. 2 (Id. at D.I.
On April 19, 2012, the plaintiff was indicted in a second federal case for violating 18 U.S.C.
§ 922(g)(l), tried, and convicted by a jury on February 22, 2013. See United States ofAmerica
v. Zamichieli, 12-cr-00182-LDD (E.D. Pa. 2012). The plaintiff proceeds prose in the criminal
matter and has filed a flurry of motions. He was recently granted leave to file a motion for a new
trial. (Id. at D.I. 215.)
With regard to the federal defendants, Counts VI and VII of the Third Amended
Complaint allege violations of the Fourth and Fifth Amendments, as follows: (1) that Memeger
launched a malicious prosecution of the plaintiff on July 12, 2011 without probable cause, when
he adopted the State arrest "even after defendant Andrews' contradicting accounts of the firearm
in plain view at the preliminary hearing" on April 26, 2011; that Memeger knew that the
plaintiffs Fourth Amendment rights were clearly established and through his investigations
knew, or should have known, that those rights were violated by the Philadelphia police officer
defendants (D.I. 56, ,-i 20); (2) that Pratter filed an indictment against the plaintiff on July 19,
2011, argued against the plaintiffs right to bail and, as a result, the plaintiff was unlawfully held
in pretrial detention from July 13, 2011 through December 18, 2011; that Pratter withheld
evidence of a photograph taken by Henning and disclosed it in a subsequent indictment and
continued to maliciously prosecute the plaintiff through her investigation of the photograph,
preliminary hearing transcripts, and arrest report prepared by a Philadelphia police officer; and
knew, or should have known, that the Philadelphia Police Department officers did not have the
requisite probable cause to conduct a warrantless search. (Id. at iii! 23-25); and, (3) that Henning
pursued an investigation of the plaintiff after his arrest on February 20, 2011, but before a prima
facie case could be established; investigated the plaintiffs prior criminal history on March 31,
2011; pursued a malicious prosecution of the plaintiff other than for purpose of bringing him to
justice; prepared a criminal complaint and arrest warrant, executed the warrant, took the plaintiff
into custody, falsely arrested, and imprisoned the plaintiff without probable cause; and
maliciously prosecuted the plaintiff by furthering the investigation of the plaintiff on July 13,
2011, until the plaintiffs vehicle was located and he took photographs that showed a vehicle
with very dark tinted windows. (Id.
22-23.) The plaintiff seeks compensatory and punitive
The Court must accept all factual allegations in a complaint as true and take them in the
light most favorable to a prose plaintiff. See Phillips v. County ofAllegheny, 515 F.3d 224, 229
(3d Cir. 2008); Erickson v. Pardus, 55 l U.S. 89, 93 (2007). Pro se pleadings, "however
inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by
lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read
pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure
to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction,
or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364
A motion to dismiss pursuant to Rule l 2(b )( 6) challenges the legal sufficiently of the
complaint. When reviewing a motion to dismiss, the court must accept all well-pleaded facts and
allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. Burtch v.
Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011) (citing In re Ins. Brokerage Antitrust
Litig., 618 F.3d 300, 314 (3d Cir. 2010)). However, such "[t]actual allegations must be enough
to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S.
554, 555 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that, while the
Complaint need not contain detailed factual allegations, it must contain more than a "formulaic
recitation of the elements" of a constitutional claim and must state a claim that is plausible on its
face) (quoting Twombly, and providing further guidance on the standard set forth therein).
Following Twombly and Iqbal, the United States Court of Appeals for the Third Circuit
instructs that a district court must conduct a three-step analysis when considering a motion to
dismiss for failure to state a claim. Santiago v. Warminster Twp., 629 F.3d 121, 130 n.7 (3d Cir.
2010) (noting that although Iqbal describes the process as a "two-pronged approach," it views
the case as outlining three steps) (citing Iqbal, 556 U.S. at 675). First, "the court must 'tak[e]
note of the elements a plaintiff must plead to state a claim."' Id. at 130 (quoting Iqbal, 556 U.S.
at 675) (alteration in original). Second, the court "should identify allegations that, 'because they
are no more than conclusions, are not entitled to the assumption of truth.'" Id. (quoting Iqbal,
556 U.S. at 679). Third, "'where there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement for
relief." Id. (quoting Iqbal, 556 U.S. at 679).
Courts generally consider the allegations of the complaint, attached exhibits, and matters
of public record in deciding motions to dismiss. Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described
or identified in the complaint also may be considered if the plaintiffs claims are based upon
those documents. Id. (citations omitted). In addition, a district court may consider indisputably
authentic documents without converting a motion to dismiss into a motion for summary
judgment. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Lum v. Bank ofAm., 361F.3d217,
222 (3d Cir. 2004) (in resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally
should consider "the allegations in the complaint, exhibits attached to the complaint, matters of
public record, and documents that form the basis of a claim.").
The federal defendants move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) on the
grounds that: (1) the claims against Memeger and Pratter are barred by the doctrine of absolute
prosecutorial immunity; (2) the third amended complaint fails to state a cognizable malicious
prosecution Bivens claim against Pratter; and (3) the claims against the individual federal
defendants are barred by the doctrine of qualified immunity. The plaintiff opposes the motion. 3
Memeger and Pratter move for dismissal of the claims against them, based upon
prosecutorial immunity, on the grounds that the alleged acts occurred within the scope of their
roles as prosecutors. The plaintiff argues that absolute immunity is inapplicable because
Memeger and Pratter were not acting as officers of the court, but instead, engaged in
prosecutorial misconduct while acting as an investigator or administrator.
Prosecutors should not be encumbered by the threat of civil liability while performing
judicial or quasi-judicial functions. See Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008).
Prosecutors acting within the scope of their duties in initiating and pursuing a criminal
prosecution are immune to suit under§ 1983. 4 Imbler v. Pachtman, 424 U.S. 409, 410 (1976).
This generally means activities conducted in court, such as presenting evidence or legal
arguments. See Giuffre v. Bissell, 31F.3d1241, 1251 (3d Cir. 1994) (citing Imbler, 424 U.S. at
430). Prosecutorial activities outside the courtroom receive the same protection only if they are
"intimately associated with the judicial phase of the criminal process." Van de Kamp v.
To the extent the parties discuss allegations related to the plaintiffs criminal conviction in 12cr-182-LDD, they are not addressed by the court as they are not the subject of the claims raised
by the plaintiff in the third amended complaint.
Imbler involved a claim under 42 U.S.C. § 1983. However, there is no distinction for immunity
purposes between suits brought against state officials under § 1983 and suits brought against
federal officials under the Constitution. See Butz v. Economou, 438 U.S. 478, 504 (1978);
Schrab v. Catterson, 948 F .2d 1402, 1408-09 (3d Cir. 1991 ).
Goldstein, 555 U.S. 335, 341 (2009) (quoting Imbler, 424 U.S. at 430 (activities intimately
associated with the judicial phase of the criminal process, casting the prosecutor as an advocate
rather than an administrative or investigative officer, trigger absolute immunity).
Administrative or investigative actions are only protected by qualified immunity, Id at
342 (citing Imbler, 424 U.S. at 431, n.33), unless the actions "relate directly to the conduct of a
criminal trial." Schneyder v. Smith, 653 F.3d 313, 334 (3d Cir. 2011) (citing Van de Kamp, 555
U.S. at 344). A prosecutor's behavior that is totally unrelated to the prosecutorial role or exceeds
the scope of his authority is similarly unprotected by absolute immunity. Kulwicki v. Dawson,
969 F.2d 1454, 1463 (3d Cir. 1992) (citing Rose v. Battle, 871F.2d331, 346 (3d Cir. 1989)).
The fact that an individual is employed as a prosecutor does not mean the prosecutor is
immune from suit for every wrong committed. See Schneyder, 653 F.3d at 331. The "inquiry
focuses on 'the nature of the function performed, not the identity of the actor who performed it."'
Odd, 538 F.3d at 208 (quoting Light v. Haws, 472 F.3d 74, 78 (3d Cir. 2007)). "The court must
ascertain just what conduct forms the basis for the plaintiffs cause of action, and it must then
determine what function (prosecutorial, administrative, investigative, or something else entirely)
that act served." Id. The court "focuses on the unique facts of each case" and carefully dissects
the prosecutor's actions. Id. (citations omitted).
The Supreme Court has held that a prosecutor is absolutely immune from liability for the
decision to initiate a criminal prosecution, see Kalina v. Fletcher, 522 U.S. 118, 129 (1997);
accord Kulwicki, 969 F.2d at 1463 ("The decision to initiate a prosecution is at the core of a
prosecutor's judicial role."), and for her decision to seek an arrest warrant, see Kalina, 522 U.S.
at 129. Moreover, courts have held that a prosecutor's involvement "in either directing or
approving [an individual's] arrest following the filing of the charges" is intimately related to the
judicial phase of the litigation, and thus entitled to absolute immunity. Hudak v. Foulk, 2007
WL 4287760, at *10 (W.D. Pa. Dec. 5, 2007); see also Orobona v. Koch, 30 F. Supp. 2d 840,
842 (E.D. Pa. 1998) ("Arresting a suspect is a necessary step in the initiation of a criminal
prosecution. As a result, it can hardly be separated from the core functions of a prosecutor.").
Here, the plaintiff alleges that Memeger's actions violated his constitutional rights when
Memeger launched the prosecution of the plaintiff even though, through investigation, Memeger
knew, or should have known, that the plaintiffs Fourth Amendment rights were violated by
reason of the contradictory testimony elicited during the State preliminary hearing on April 6,
2011. Initiation of the criminal proceeding is clearly an act entitled to absolute immunity. In
addition, the plaintiffs conclusory allegation that Memeger should have known of a Fourth
Amendment issue is contrary to other allegations in the complaint, most notably that the State
court heard testimony during the preliminary hearing and held the plaintiff for trial (see D.I. 56,
ex.), a United States Magistrate Judge issued an arrest warrant (see l l-cr-00393-BMS at D.I. 2),
the plaintiff was indicted (id. at D.I. 6), and a United States Magistrate Judge detained the
plaintiff for trial (id. at D.I. 9, 10), all of which occurred prior to the time the court granted the
motion to dismiss on the Fourth Amendment search and seizure issue.
The acts of which plaintiff complains fit squarely within the realm of official
prosecutorial duties. Accordingly, Memeger is entitled to absolute immunity and the court will
grant the motion to dismiss on that ground.
With regard to Pratter, the plaintiff argues that she filed an indictment, argued against
bail, withheld evidence, and continued in his prosecution even though she knew or should have
known that the Philadelphia police officer did not have probable cause to conduct a warrantless
search. Similar, to Memeger, Pratter is entitled to absolute immunity. Absolute immunity
attaches to the prosecutor's decision to initiate a prosecution. In addition, arguing against bail
and continuing with the prosecution are clearly acts that occur during a judicial proceeding, and
acts that required advocacy on her part. Absolute immunity also attaches to the acts taken by
Pratter to the extent that she made decisions with regard to photographs taken by Henning and
when to tum over evidence. See, e.g., Henderson v. Fisher, 631F.2d1115, 1120 (3d Cir. 1980)
(prosecutor's handling of government's evidence is within the sweep of initiating and presenting
the State's case); Donahue v. Gavin, 2000 WL 772819, at *3 (E.D. Pa. June 5, 2000)
(prosecutor's failure to disclose material exculpatory evidence, whether intentional or
inadvertent, is entitled to absolute immunity); Roberts v. Toal, 1995 WL 51678, at *2 (E.D. Pa.
Feb. 8, 1985) (the decision whether to release evidence and the determination of whether
evidence is exculpatory have been characterized as legal judgments made by a prosecutor in his
capacity as advocate for the state, warranting immunity). Notably, as soon as the court granted
the plaintiffs motion to suppress, Pratter moved to dismiss the indictment on behalf of the
Absolute prosecutorial immunity attached to the claims raised against Memeger and
Pratter. Therefore, the court will grant their motion to dismiss.
The defendants move to dismiss the Bivens malicious prosecution claim against Pratter,
to the extent that one is asserted, on the grounds that the allegations fail to state a claim upon
which relief may be granted. The plaintiff argues that he has stated a cognizable malicious
prosecution proceeding against the defendants having adequately alleged the required elements. 5
The defendants do not address the malicious prosecution claims raised against Henning. The
claims raised against Henning will be address in the qualified immunity section, infra.
For the reasons discussed above, the malicious prosecution claim against Pratter, and to
the extent one is raised against Memeger, will be dismissed given that they both have absolute
immunity from all prosecutorial actions thus barring the malicious prosecution claims. See e.g.,
Spiker v. Whittaker, 553 F. App'x 275, 279 (3d Cir. 2014) (unpublished).
The defendants move for dismissal of the claims raised against Henning on the grounds
that the doctrine of qualified immunity renders him immune from suit. More particularly, the
defendants argue the allegations do not establish that Henning violated established statutory or
constitutional law and, in the alternative, were the court to conclude he did, his actions were not
objectively unreasonable in light of the circumstances. The plaintiff argues that Henning acted
outside the scope of his role as an ATF agent, knew that the February 20, 2011 search warrant
was without probable cause, adopted the Philadelphia Police Department officers' reports when
he sought an arrest warrant from the United State Magistrate Judge, and then arrested him
without probable cause.
Qualified immunity shields government officials from civil damages liability unless the
official violated a statutory or constitutional right that was clearly established at the time of the
challenged conduct. See Ashcroft v. al-Kidd,_ U.S._, 131 S.Ct. 2074, 2080 (2011). To be
clearly established, a right must be sufficiently clear "that every 'reasonable official would [have
understood] that what he is doing violates that right."' Id. at 2078 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). In other words, "existing precedent must have placed the
statutory or constitutional question beyond debate." Id. at 2083. This "clearly established"
standard protects the balance between vindication of constitutional rights and government
officials' effective performance of their duties by ensuring that officials can '"reasonably ...
anticipate when their conduct may give rise to liability for damages."' Anderson, supra, at 639
(quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)).
"Where the alleged Fourth Amendment violation involves a search or 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 or, as we have sometimes put it, 'in objective
good faith.'" Messerschmidt v. Millender, _U.S._, 132 S.Ct. 1235, 1245 (2012) (quoting
United States v. Leon, 468 U.S. 897, 922-23 (1984)). The Supreme Court has also recognized an
exception to such a clear indication if it is "obvious that no reasonably competent officer would
have concluded that a warrant should issue." Messerschmidt, 132 S.Ct. at 1245 (citing Malley v.
Briggs, 475 U.S. 335, 341 (1986)). However, the threshold for establishing this exception is
high. Messerschmidt, 132 S.Ct. at 1245.
In third amended complaint the plaintiff alleges that Henning violated his Fourth
Amendment right to be free from illegal seizures/unlawful pretrial detentions without probable
cause and malicious prosecution and his Fifth Amendment right to equal protection and due
process. These claims are based upon the allegations that Henning pursued an investigation of
the plaintiff after his arrest on February 20, 2011, but before a prima facie case could be
established, investigated the plaintiffs prior criminal history on March 31, 2011, pursued a
malicious prosecution of the plaintiff other than for purpose of bringing him to justice; prepared
a criminal complaint and arrest warrant, executed the arrest warrant, and took the plaintiff into
custody, falsely arrested and imprisoned the plaintiff without probable cause, maliciously
prosecuted the plaintiff by furthering the investigation of the plaintiff on July 13, 2011, until the
plaintiffs vehicle was located and photographs taken showing a vehicle with very dark tinted
Based on the facts averred in the complaint, even if Henning violated the plaintiff's
constitutional rights, the court finds that he did not behave unreasonably and therefore, is entitled
to qualified immunity. The allegations are that the plaintiff was the subject of a lawful traffic
stop during which time a weapon was discovered and seized by Philadelphia Police Department
officers. Those officers issued reports. In addition, exhibits to the third amended complaint
indicate that the plaintiff had a criminal history. In light of these allegations, it was not
objectively unreasonable for Henning to investigate the plaintiff to determine if there were
violations of federal criminal statutes. Nor was it objectively unreasonable for Henning to rely
upon the reports of the Philadelphia police officers in preparing his arrest warrant, particularly in
light of the allegations that the State court had issued an arrest warrant and held the plaintiff over
for trial. Nor was it objectively unreasonable for Henning to arrest the plaintiff given that a
United Magistrate Judge found probable cause to issue an arrest warrant. Hence, the court finds
that Henning did not act unreasonably in obtaining an arrest warrant and relying upon the
warrant to arrest the plaintiff which resulted in his detention pending trial. While the plaintiff
was successful in his motion to suppress evidence, this in no way negates the fact that Henning
did not behave unreasonably in relying on the accounts of the Philadelphia police office and, he
is therefore entitled to qualified immunity. See e.g., Woods v. Pettine, 2015 WL 1072687, at *IO
(E.D. Pa. Mar. 12, 2015). Finally, the court finds that Henning is entitled to qualified immunity
as to any malicious prosecution claims because it would not have been clear to a reasonable
police, in Henning's positions, that there was no probable cause to charge him federally.
Therefore, the court will grant the motion to dismiss as to the claims raised against
Henning as they are barred by the doctrine of qualified immunity.
For the above reasons, the court will grant the federal defendants' motion to dismiss.
(D.I. 78.) The plaintiffs motion requesting information will be denied as moot. (DJ. 100.)
An appropriate order will be issued.
!dr ....Ji L7 ,2015
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