STOCK v. BRASWELL et al

Filing 8

MEMORANDUM SIGNED BY HONORABLE C. DARNELL JONES, II ON 8/1/17. 8/2/17 ENTERED AND COPIES E-MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FRANCIS STOCK
Plaintiff,
v.

:

:

CHANELLE BRASWELL, individually
and in her official capacity as an agent
:
of the Pennsylvania Board of Probation
and Parole; and, PENNSYLVANIA BOARD
OF PROBATION AND PAROLE
:
Defendants.

CIVIL ACTION
NO. 16-6412

MEMORANDUM
Jones, II
I.

J.

August 1, 2017

Introduction
Plaintiff Francis Stock brings the above-captioned action, alleging Defendants, 1 Parole

Officer Chanelle Braswell 2 and Pennsylvania Board of Probation and Parole—as agents of the
Commonwealth of Pennsylvania—are liable under 42 U.S.C. § 1983 for violating Plaintiff’s
Fourth and Fourteenth Amendment constitutional rights by unlawfully arresting him and denying
him due process before restricting his liberty (Count I). Plaintiff’s Complaint further asserts

1

Although, at the time of motion, Officer Braswell and Pennsylvania Board of Probation and
Parole (“PBPP”) were both defendants, Plaintiff agreed to dismissal of PBPP and Officer
Braswell in her official capacity in his response to Defendants’ Motion to Dismiss. Thus, the
only remaining defendant is Officer Braswell in her individual capacity.
2
Defendants apparently erroneously included the name of a defendant Buch, not named in this
suit, in their memorandum in support of their motion to dismiss. (Defs.’ Mem. 11.)
1

various state law claims 3 including unlawful arrest (Count IV), false imprisonment (Count V),
malicious prosecution (Count VI), and, in the alternative, negligent infliction of emotional

3

Plaintiff includes a Second Cause of Action subtitled “State Law Claims.” (Compl. ¶¶ 55-60.)
Said cause of action is essentially a summary of both the federal and state claims contained
within Plaintiff’s First, and Third through Seventh, Causes of Action. In and of itself, Plaintiff’s
Second Cause of Action does not present one cognizable claim, as required by Federal Rule of
Civil Procedure 10:
Paragraphs; Separate Statements. A party must state its claims or defenses in
numbered paragraphs, each limited as far as practicable to a single set of
circumstances. A later pleading may refer by number to a paragraph in an earlier
pleading. If doing so would promote clarity, each claim founded on a separate
transaction or occurrence--and each defense other than a denial--must be stated in
a separate count or defense.
Fed.R.Civ.P. 10(b).
To this end,
Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
Civ. P. 12(f). This may be done by the court sua sponte or on a motion filed by a
party. Fed. R. Civ. P. 12(f)(1)-(2). “The purpose of a motion to strike is to clean
up the pleadings, streamline litigation, and avoid unnecessary forays into
immaterial matters.” McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp.
2d 393, 402 (E.D. Pa. 2002). These motions “serve a useful purpose by
eliminating insufficient defenses and saving the time and expense which would
otherwise be spent in litigating issues which would not affect the outcome of the
case.” United States v. Kramer, 757 F. Supp. 397, 410 (D.N.J. 1991).

Lakeview Pharm. of Racine, Inc. v. Catamaran Corp., Civil Action No. 3:15-290, 2017 U.S.
Dist. LEXIS 49077, at *12-13 (M.D. Pa. Mar. 31, 2017).
The “Second Cause of Action” as contained in Plaintiff’s Complaint is redundant.
Recognizing that striking portions of pleadings is often viewed as a “drastic” remedy, the
striking of Plaintiff’s Second Cause of Action is warranted in this case to “clean up the
pleadings” and “streamline litigation.” Id. at *12 (citations omitted). More importantly, no
prejudice will ensue by striking Plaintiff’s Second Cause of Action.
2

distress (Count III). 4 Defendants move to dismiss all counts of said Complaint pursuant to Fed.
R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, Defendants’
Motion shall be granted in part and denied in part.
II.

Background
In December 2013, Plaintiff was sentenced in the Delaware County Court of Common

Pleas to a one (1) to two (2) year term of imprisonment. (Compl. ¶ 10.) On or about December 8,
2014, Defendant was released on parole from the custody of State Prison and transferred to a
Community Education Center located at 1917 W. Oxford Street in Philadelphia, Pennsylvania
(“CEC Oxford”). (Compl. ¶ 11.) CEC Oxford is a non-custodial, community reintegration
residence for men. (Compl. ¶ 11.) As such, CEC Oxford residents are free to leave the facility.
(Compl. ¶ 13.) CEC Oxford is owned by Community Education Centers, Incorporated, which
contracts with agents of the Commonwealth of Pennsylvania to house and reintegrate people
who have been paroled from custody in State Prison. (Compl. ¶ 11.)
On or about December 16, 2014, Defendant, Parole Officer Braswell, arrested Plaintiff
for “hot urine” 5 while he was a resident of CEC Oxford. (Compl. ¶¶ 12, 14.) However, Plaintiff
was never asked or required to submit a urine sample and had never submitted a urine sample
4

Plaintiff includes a Seventh Cause of Action subtitled “Punitive Damages.” (Compl. ¶¶ 7579.) Although Pennsylvania courts permit requests for punitive damages to be set forth in
separate counts (Phar-Mor, Inc. v. Coopers & Lybrand, Civil Action No. 92-2108, Consolidated
with C.A. Nos. 92-1938, 92-2131, 92-2193, 1992 U.S. Dist. LEXIS 22163, at *7 (W.D. Pa. Dec.
21, 1992)), it is not proper to assert punitive damages in a separate count in a federal pleading.
PTI Converted Paper Prods. v. Stone Container Corp., Civil Action No. 94-CV-6797, 1995 U.S.
Dist. LEXIS 10316, at *1 (E.D. Pa. July 21, 1995). Plaintiff properly included his request for
punitive damages in the ad damnum clauses pertaining to each count contained within his
Complaint as well as in his final request for relief. Those requests suffice, rendering Count VII
superfluous.
5
“Hot urine” is urine containing traces of banned or illegal substances.
3

prior to his arrest by Defendant Braswell. (Compl. ¶ 15.) Nevertheless, Defendant Braswell took
Plaintiff into custody and transferred him to the Kintock parole violation center located at 301 E.
Erie Avenue in Philadelphia, Pennsylvania (“PVC Kintock”). (Compl. ¶ 12.) Unlike CEC
Oxford, PVC Kintock is custodial—its residents are not free to leave. (Compl. ¶ 13.) PVC
Kintock is jointly administered by the Pennsylvania Department of Corrections (“DOC”) and the
Pennsylvania Board of Probation and Parole (“PBPP”) for the commitment of non-violent,
technical parole violators. (Compl. ¶ 17.)
On or about December 20, 2014, Plaintiff was violently assaulted while an inmate of
PVC Kintock. (Compl. ¶ 18.) He was transferred by ambulance to a local hospital emergency
room. (Compl. ¶ 18.) When Plaintiff left the emergency room, he was not escorted and elected to
return to his home, instead of PVC Kintock. (Compl. ¶ 18.) Consequently, Plaintiff was charged
with absconding and escape, and a warrant was issued for his arrest. (Compl. ¶¶ 19, 20.)
On February 25, 2015 Plaintiff was arrested by the Pennsylvania State Police for
absconding and escape. (Compl. ¶ 21.) Bail was set at Fifty Thousand Dollars ($50,000.00) on
the escape charge. (Compl. ¶ 21.) Plaintiff posted bail but remained in custody on the
absconding charge because it was considered a parole violation, for which there is no bail.
(Compl. ¶ 21.) A preliminary hearing was held on the escape charge on April 1, 2015, and
Plaintiff was held for court. (Compl. ¶ 22.)
On April 28, 2015, the PBPP issued a decision that Plaintiff should be: (1) detained
pending disposition of criminal charges for escape; and, (2) recommitted for six (6) months to a

4

State correctional institution for technical parole violations. 6 (Compl. ¶ 23.) The bases of the
PBPP’s decision to recommit Plaintiff were change of residence without permission and
unsuccessful discharge from the program. The PBPP did not conclude that a “hot urine”
violation had occurred. (Compl. ¶ 23.)
On December 14, 2015, the escape charge was nolle prossed after the complaining
witness repeatedly failed to appear. (Compl. ¶ 24.) Plaintiff was in custody from February 25,
2015 through December 31, 2015 as a result of the escape and technical parole violation charges.
(Compl. ¶¶ 25-26.)
On December 13, 2016, Plaintiff filed the instant civil rights Complaint. His claims arise
from his allegedly unjustified arrest for hot urine, transfer from CEC Oxford to PVC Kintock,
and from consequences attendant to that transfer. His claims do not dispute the escape and
absconding charges for his failure to return to PVC Kintock after discharge from the hospital.
III.

Standards of Review
A. Rule 12(b)(1)
Rule 12(b)(1) permits parties to assert, by motion, the defense of lack of subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). However, for the reasons discussed below, Defendants’
12(b)(1) motion is moot.
B. Rule 12(b)(6)
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
6

Recommitment for parole violations is pursuant to 61 Pa.C.S.A.§ 6138 (2012).
5

to relief. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation
and citation omitted). After the Supreme Court’s decision in Bell Atl. Corp. v. Twombly,
[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S.
544, 555 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. Id. at 678 (citing Twombly, 550 U.S. at 556). This standard asks for more than a sheer
possibility that a defendant has acted unlawfully. Id. Accord Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009) (“[A]ll civil complaints must contain more than an unadorned, thedefendant-unlawfully-harmed-me accusation.”) (internal quotation marks omitted).
IV.

Discussion
A.

Subject Matter Jurisdiction and Sovereign Immunity

Defendants move to dismiss, in part, pursuant to Fed. R. Civ. P. 12(b)(1). (Defs.’ Mot.
Dismiss 2.) Although Defendants do not explicitly connect their 12(b)(1) motion with their
sovereign immunity defense, this Court understands them to be correlated here, as in other cases.
See, e.g., Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n.2 (3d Cir. 1996). In his
response to Defendants’ motion, Plaintiff concedes this issue and stipulates to dismissal of PBPP
and Officer Braswell in her official capacity. (Pl.’s Resp. 8.) Accordingly, Defendants’ motion
regarding this point shall be granted as unopposed.

6

B.

Federal Claim: § 1983 Claim Against Officer Braswell in Her Individual
Capacity

Defendants further move to dismiss Plaintiff’s § 1983 claim for damages against Officer
Braswell in her personal capacity under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief can be granted. (Defs.’ Mem. 6.) In support of same, Defendants cite Preiser v.
Rodriguez 7 for the proposition that Plaintiff’s sole federal remedy is a writ of habeas corpus and
Heck v. Humphrey 8 for the proposition that Plaintiff’s claim is technically barred by a favorable
termination rule. Id.
Section 1983 provides that a plaintiff may bring a lawsuit against a state actor for a
violation of a right, privilege, or immunity secured by the Constitution or laws of the United
States. See Berg v. Cnty. of Allegheny, 219 F.3d 261, 268 n. 3 (3d Cir. 2000). A Section 1983
plaintiff must demonstrate that the defendant was personally involved in the alleged violation(s)
of his or her federal rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
Plaintiff here claims that while on parole at a non-custodial residence, Officer Braswell
herself falsely accused Plaintiff of hot urine, arrested him without cause, and transferred him to a
less favorable, more restrictive prison, effectively revoking his parole. (Compl. ¶¶ 11-17.)
Plaintiff alleges these actions by Officer Braswell ultimately caused Plaintiff to be violently
assaulted and injured, and incarcerated at a custodial facility, with undue restrictions on his
liberty, for approximately twelve months longer than he would have been otherwise. (Compl.
¶¶ 18, 27, 39-42.) Plaintiff further contends Officer Braswell’s action in arresting him without
cause constituted an unreasonable seizure in violation of Plaintiff’s Fourth Amendment rights,
7
8

411 U.S. 475, 500 (1973).
512 U.S. 477, 487 (1994).
7

and that Officer Braswell’s action in transferring him from CEC Oxford to PVC Kintock unduly
deprived him of his liberty without due process of law, in violation of his Fourteenth
Amendment rights. (Compl. ¶¶ 39-42, 46, 47.) Thus, Plaintiff asserts these constitutional
violations give rise to a cause of action under 28 U.S.C. § 1983. (Compl. ¶¶ 46, 47, 49-54.)
1.

Plaintiff’s Claim Does Not Sound in Habeas

With specific regard to Defendants’ argument that Plaintiff’s Complaint should be
dismissed because Plaintiff improperly brought § 1983 action, whereas he should have brought
§ 2254 habeas action, said argument is unfounded in this case. The question of whether
Plaintiff’s Complaint regarding his confinement should take the form of habeas action or § 1983
action requires inquiry as to whether said Complaint has the essential nature of habeas corpus
action, or “lies at the core of habeas”; and whether it challenges the fact or duration of
confinement, as opposed to solely the conditions of confinement.
In support of their contention, Defendants rely upon the Preiser holding, and argue that
challenges to a prisoner’s confinement should be made in the form of a habeas petition.
However, Preiser is more nuanced. Preiser holds that a prisoner who challenges the fact or
duration of his or her confinement and seeks release must do so by a writ of habeas corpus. 411
U.S. 475, 500 (1973). Defendants herein have not shown that Plaintiff challenges the fact or
duration of his confinement, nor have they argued that he seeks release.
“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of
that custody, and … the traditional function of the writ is to secure release from illegal custody.”
Preiser 411 U.S. 475, 484 (1973) (emphasis added). Expounding Preiser, the Supreme Court
explained there is “an exception [to] § 1983’s otherwise broad scope for actions that lie ‘within
8

the core of habeas corpus,’ i.e., where a state prisoner requests present or future release. Section
1983 remains available for procedural challenges where success would not necessarily spell
immediate or speedier release for the prisoner…” Wilkinson v. Dotson, 544 U.S. 74, 76 (2005)
(internal citations omitted) (emphasis added). The Supreme Court reasoned that when the
prisoner’s claim would not result in release, it does not lie at “the core of habeas corpus.” Id.
(citing Preiser 411 U.S. at 489). Furthermore, the District Court’s very jurisdiction over petitions
for writs of habeas corpus under 28 U.S.C. § 2254 is contingent upon the petitioner being in the
custody of the state when the petition for writ of habeas corpus is filed. Carafas v. LaVallee, 391
U.S. 234, 238 (1968). In this case, the pleadings indicate Plaintiff’s release date precedes his
filing date by one year, therefore he was not in custody at the time of filing. (Compl. 1, ¶ 26.)
Furthermore, Plaintiff seeks damages, not release. (Compl. 16-17.) Therefore, “the implicit
habeas exception” to § 1983’s scope does not apply to Plaintiff’s claims. Wilkinson, 544 U.S. at
76. Accordingly, Plaintiff has properly sought relief under 28 U.S.C. § 1983.
2.

Plaintiff’s Claim is Not Barred by Heck

Defendants next argue Plaintiff’s claim is barred by Heck’s favorable termination rule.
(Defs.’ Mem. 6-7.) Said rule provides as follows:
[A] § 1983 plaintiff cannot seek damages for harm caused by actions the
unlawfulness of which would necessarily render the fact or length of his
confinement invalid, unless he can prove that the conviction, sentence, or prison
disciplinary sanction that resulted from those actions has been reversed,
invalidated, or called into question by a grant of federal habeas corpus relief (in
other words, terminated favorably to the plaintiff).
Torres v. Fauver, 292 F.3d 141, 143 (3d Cir. 2002) (citing Heck v. Humphrey, 512 U.S. 477
(1994)). The favorable termination rule, which derives from tort law, is intended to “eliminate[]
the potential for conflicting resolutions arising from parallel civil and criminal proceedings.” Id.
9

at 146-47. Therefore, “[t]he favorable termination rule does not apply when a prisoner’s § 1983
claims can implicate only the conditions, and not the fact or duration, of his confinement. This is
regardless [of] whether he remains in custody … or is no longer in custody.” Id. at 149-50
(internal citations omitted). Parole “is in legal effect imprisonment.” Anderson v. Corall, 263
U.S. 193, 196 (1923). See also Jones v. Cunningham, 371 U.S. 236, 242-43 (1963) (articulating
the “significant restraints” inherent in parole). Although credit for time served under parole may
be revoked under certain circumstances, “[w]hile the parolee is out of prison under the parole, he
is still serving his sentence.” Jenkins v. Madigan, 211 F.2d 904, 906 (7th Cir. 1954) (citing
Anderson v. Williams, 279 F. 822, 827 (8th Cir. 1922)). See also Skipworth v. United States, 508
F.2d 598, 600 n.4 (3d Cir. 1975) (finding the view that the parole term is part of the sentence
imposed is “consistent with the view generally taken of parole”); Johnson v. Mondrosch, 586 F.
App’x 871, 874 (3d Cir. 2014) (referring to confinement as a condition of parole); PBPP
definition of “Parole,” http://www.pbpp.pa.gov/Understanding%20Parole/PD/Pages/N---RDefinitions.aspx (last visited July 14, 2017) (defining parole as “[t]he conditional release from
imprisonment of an offender from a correctional facility to serve the remainder of his/her
unexpired sentence in the community under supervision as long as (s)he satisfactorily complies
with all terms and conditions provided in the parole order.”) Thus, Plaintiff’s challenge of his
transfer from non-custodial, parole confinement back to custodial confinement is not about the
fact or duration of confinement. It is a challenge to adjustment in the condition of confinement,
based upon an allegedly falsified “hot urine” violation, for which a hearing was never held.
Because this Court has no information before it to indicate the PBPP ever made a nonfavorable
determination with respect to Plaintiff’s arrest for hot urine, any potential for “conflicting
10

resolutions arising from parallel civil and criminal proceedings” is extinguished and Heck’s
favorable termination rule does not apply to or bar Plaintiff’s claim.
3.

Fourteenth Amendment

Defendants do not deny that Officer Braswell acted without cause in arresting Plaintiff
and transferring him to a less favorable prison. (Defs.’ Mem. 2, 9.) Instead, Defendants argue
that a prisoner has no liberty interest in remaining in a particular facility within a prison system.
(Defs.’ Mem. 9.) In other words, Defendants assert there is no due process requirement to show
cause before transferring someone in their custody to less favorable confinement. 9 Id. However,
the question presented here is broader than that framed by Defendants. The due process
implications of all aspects of Defendants’ treatment of Plaintiff, including not just the transfer
but the initial arrest for hot urine and Defendants’ adjustment of Plaintiff’s status, are at issue.
Revocation of Plaintiff’s parole status has due process implications. “Revocation of
parole demands an informal hearing structured to assure that the finding of a parole violation will

9

Although it is not dispositive, Defendants correctly conclude Plaintiff’s transfer, in and of
itself, did not require process. Absent a state law to the contrary, the Fourteenth Amendment
does not create a due process right for prisoners subject to transfer. Meachum v. Fano, 427 U.S.
215, 216 (U.S. 1976). See also Sandin v. Conner, 515 U.S. 472, 474 (1995) (holding that “states
may under certain circumstances create liberty interests that are protected by the Due Process
Clause”). In Olim v. Wakinekona, the Supreme Court held the Due Process Clause does not
protect a prisoner against transfer within the state prison system because the prisoner’s
“conviction has sufficiently extinguished [his] liberty interest to empower the State to confine
him in any of its prisons.” 461 U.S. 238, 244-245 (1983). The Third Circuit Court of Appeals
reached a similar conclusion in Torres, where a prisoner’s “transfer to less amenable and more
restrictive quarters did not implicate a liberty interest protected by the Due Process Clause.”
292.F.3d at 150. Because Plaintiff herein does not identify a state-created due process
requirement or state-created liberty interest in not being transferred, Defendants correctly assert
that their transfer of Plaintiff does not entitle him to relief. Indeed, Pennsylvania presumes
“prisoner transfers further a legitimate penological objective unless a prisoner plaintiff proves
otherwise.” Yount v. Pa. Dep’t of Corr., 966 A.2d 1115, 1121 (2009).
11

be based on verified facts and the exercise of discretion will be informed by an accurate
knowledge of the parolee’s behavior.” Anderson v. Pa. Bd. of Prob. & Parole, No. 08-5408,
2010 U.S. Dist. LEXIS 143048, at *19-20 (E.D. Pa. Aug. 31, 2010) (citing Morrissey v. Brewer,
408 U.S. 471, 484 (1972)). Therefore,
[Although] the revocation of parole is not part of a criminal prosecution and thus
the full panoply of rights due a defendant in such a proceeding does not apply to
parole revocations, …upon arrest, the parolee is entitled to a preliminary hearing
before a neutral and independent decisionmaker to determine whether there is
probable cause or reasonable ground to believe [] the arrested parolee has
committed acts that would constitute a violation of parole conditions.
Id. (citing Morrissey at 485-86) (internal quotations and citations omitted). See also 37 Pa. Code
§ 71.4 (codifying a parole revocation hearing requirement).
In this case, Plaintiff alleges the PBPP did not find a violation for hot urine after the April
1, 2015 hearing. (Am. Compl. ¶¶ 22, 23.) Plaintiff fails to precisely indicate whether his claim is
premised on the fact that the hearing did not address the proffered cause for his first arrest (hot
urine), or on the fact that the PBPP found the arrest to be baseless. If the former, Plaintiff shows
that he may establish a due process violation because Plaintiff’s parole revocation was not
supported by the requisite hearing. If the latter, Plaintiff’s Fourth Amendment and false arrest
claims are well established since the PBPP itself found no cause for Plaintiff’s arrest for hot
urine. Because Plaintiff’s Fourteenth Amendment claim is plausible, Defendants’ motion shall be
denied.
4.

Fourth Amendment

Defendants next argue Plaintiff defeats his own Fourth Amendment claim by admitting
he absconded after he left the hospital and conceding that doing so was a parole violation. Since
12

parole violations justify arrest, Defendants reason there was probable cause to arrest Plaintiff.
(Defs.’ Mem. 8.) However, Defendants’ argument concerns Plaintiff’s post-hospital arrest,
whereas Plaintiff is claiming a violation of his Fourth Amendment rights based on Officer
Braswell’s arrest of Plaintiff for hot urine, prior to his transfer from CEC Oxford to PVC
Kintock. (Am. Compl. ¶ 50.)
Defendants agree that to establish a Fourth Amendment unreasonable seizure claim, a
plaintiff must demonstrate that an arrest was made without probable cause. (Defs.’ Mem. 8
(signaling Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)) See also Pollock v.
City of Phila., 403 F. App’x 664, 669 (3d Cir. 2010) (articulating the same elements of a Fourth
Amendment claim for false arrest)). Defendants also admit they arrested Plaintiff without cause
prior to his transfer from CEC Oxford to PVC Kintock. (Defs.’ Mem. 2.) Accordingly, Plaintiff
has alleged a plausible Fourth Amendment claim based upon Officer Braswell’s initial arrest of
Plaintiff for an alleged parole violation based upon a non-existent “hot urine” and Defendants
motion to dismiss Plaintiff’s § 1983 claim based upon said claim shall be denied.
C.

State Law Claims Against Officer Braswell in Her Individual Capacity

Defendants seek dismissal of Plaintiff’s state law claims. In support of their motion to
dismiss all of Plaintiff’s state law claims, they argue said claims are “bared [sic] by sovereign
immunity.” (Defs.’ Mem. 10.) Insofar as Plaintiff claims Officer Braswell is liable for each state
law claim in her individual capacity, Defendants’ sovereign immunity argument does not apply
and therefore is non-responsive. Lewis v. Clarke, 137 S. Ct. 1285, 1288 (2017) (“[the Supreme]
Court has never held that a civil rights suit under 42 U. S. C. §1983 against a state officer in his
individual capacity implicates the Eleventh Amendment and a State’s sovereign immunity from
13

suit.”). See also Hafer v. Melo, 502 U.S. 21, 25 (1991) (distinguishing official-capacity actions,
for which immunities “that the governmental entity possesses” are available, from personalcapacity actions, for which the defendant “may assert personal immunity defenses” when
appropriate). Defendants also make passing reference to official immunity in defense of Officer
Braswell. (Defs.’ Mem. 10.) This Court shall address official immunity to the extent applicable
in the context of each individual state law claim.
1.

Unlawful/False Arrest

Defendants seek dismissal of Plaintiff’s state law claim of false arrest, arguing the same
is precluded by reason of the arrest for absconding. (Defs.’ Mem. 8-9.) However, as discussed
above, Defendants’ argument addresses a subsequent arrest that is not the basis of Plaintiff’s
claim.
In Pennsylvania, “[a] false arrest is defined as 1) an arrest made without probable cause
or 2) an arrest made by a person without privilege to do so.” Renk v. City of Pittsburgh, 641 A.2d
289, 295 n.2 (Pa. 1994) (citing Pennsylvania Suggested Standard Civil Jury Instructions
§ 13.04). Because Plaintiff alleges and Defendants admit Officer Braswell initially arrested
Plaintiff without cause, Plaintiff’s claim for false arrest is plausible. (Compl. ¶¶ 64-65; Defs.’
Mem. 2, 8.)
To the extent Defendants contend official immunity applies to Plaintiff’s false arrest
claim, this Court looks to Pennsylvania’s Political Subdivision Tort Claims Act: 10
An employee of a local agency may claim the defense of official immunity by
asserting that his or her conduct “was authorized or required by law, or that [the
employee] in good faith reasonably believed the conduct was authorized or
10

42 Pa.C.S.A. § 8546.
14

required by law.” Id.; 42 Pa. Cons Stat. Ann. § 8546(2). If the court determines,
however, that the employee’s actions constituted “a crime, actual fraud, actual
malice or willful misconduct,” the employee may not invoke the protection of
official immunity. Id.; 42 Pa. Cons Stat. Ann. § 8550. In this context, “willful
misconduct . . . is synonymous with “intentional tort.’” Lancie v. Giles, 132 Pa.
Commw. 255, 572 A.2d 827, 830 (Pa. Commw. Ct. 1990) (citing King v. Breach,
115 Pa. Commw. 355, 540 A.2d 976 (Pa. Commw. Ct. 1988)). Additionally, “the
pursuit of unfounded criminal charges against an individual has long been
recognized as ‘willfull [sic] misconduct’ within the meaning of section 8550.”
Thompson v. Wagner, 631 F. Supp. 2d 664, 688 (W.D. Pa. 2008) (citing
Overstreet v. Borough of Yeadon, 327 Pa. Super. 291, 475 A.2d 803 (Pa. Super.
Ct. 1984)).
Mazzella v. Marzen, Civ. No. 13-1516, 2015 U.S. Dist. LEXIS 7301, at *24-25 (M.D. Pa. Jan.
14, 2015) (citing Mazzella v. Marzen, Civ. No. 13-1516, 2013 U.S. Dist. LEXIS 165263, at *1213 (M.D.Pa. Nov. 20, 2013)). Because Plaintiff alleges and Defendants admit Officer Braswell
initially arrested Plaintiff without cause, Plaintiff’s allegation that Officer Braswell pursued
unfounded criminal charges against him is plausible and Officer Braswell is not necessarily
entitled to a defense of official immunity as a matter of law. Therefore, Defendants’ motion to
dismiss Plaintiff’s false arrest claim against said Officer in her individual capacity shall be
denied. (Defs.’ Mem. 2, 8.)
2.

False Imprisonment

“In the context of an arrest, an actor is liable for false imprisonment when he causes the
false arrest of another person.” Renk, 641 A.2d at 295 n.2. Because Plaintiff has pleaded a
plausible false arrest claim against Officer Braswell in her individual capacity, his false
imprisonment claim against said Officer in her individual capacity is likewise plausible.

15

3.

Malicious Prosecution

Defendants additionally seek dismissal of Plaintiff’s claim of malicious prosecution.
(Defs.’ Mem. 8-10.) In Pennsylvania, “[a] cause of action for malicious prosecution generally
requires proof that the defendant (1) instituted criminal proceedings against the plaintiff (2)
without probable cause (3) with malice and (4) that the proceedings terminated in favor of the
plaintiff.” Tomaskevitch v. Specialty Records Corp., 717 A.2d 30, 31 (Pa. Commw. Ct. 1998).
Accord Bourlotos v. Bucks Cty., No. 16-01419, 2016 U.S. Dist. LEXIS 79646, at *9 (E.D. Pa.
June 20, 2016). “As the name suggests, malicious prosecution requires a prosecution. What
occurred prior to the prosecution—that is, the time between arrest and the lodging of formal
charges—is not a basis for a malicious prosecution claim.” Bourlotos, Civ. No. 16-1419, 2016
U.S. Dist. LEXIS 79646, at *9. Because Plaintiff did not allege he was formally charged with a
parole violation based on hot urine, and does not allege he was prosecuted for same, his claim for
malicious prosecution fails as a matter of law and Defendants’ motion to dismiss said claim shall
be granted.

11

4.

In the Alternative: Negligent Infliction of Emotional Distress

Plaintiff claims in the alternative 12 that Defendant Braswell negligently inflicted
emotional distress upon him and Defendants seek dismissal of same. (Compl. ¶¶ 61-62; Defs.’
Mem. 10.)
In Pennsylvania, it is well settled that:
In order to recover for negligent infliction of emotional distress, a plaintiff must
prove one of the following four elements: “(1) that the defendant had a
11
12

This ruling renders moot any relevant immunity argument by Defendants.
See Fed.R.Civ.P. 8(d)(2) (setting forth the option and parameters of alternative claims).
16

contractual or fiduciary duty toward him; (2) that Plaintiff suffered from a
physical impact; (3) that Plaintiff was in a ‘zone of danger’ and at risk of
immediate physical injury; or (4) that Plaintiff had a contemporaneous perception
of tortious injury to a close relative.” Doe v. Phila. Cmty. Health Alternatives
AIDS Task Force, 2000 PA Super 6, 745 A.2d 25, 27 (Pa.Super.Ct.2000).
Moreover, “a Plaintiff who alleges negligent infliction of emotional distress must
suffer immediate and substantial physical harm.” Id. at 28.
Johnson v. Caputo, Civil No. 11-2603, 2013 U.S. Dist. LEXIS 83380, at *35-36 (E.D. Pa. Apr.
30, 2013).
Plaintiff alleges he was violently assaulted while an inmate of PVC Kintock, requiring
hospitalization. (Compl. ¶ 18.) Plaintiff therefore alleges physical impact. Inasmuch as Plaintiff
does not plead he “suffered immediate and substantial physical harm” as a result of Defendants’
actions, said claim fails as a matter of law.
However,
[A] court must grant leave to amend before dismissing a complaint that is merely
deficient. See, e.g., Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001);
Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave
to amend is justified only on the grounds of bad faith, undue delay, prejudice, or
futility.” Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).
Despot v. Keystone Insurers Grp., Inc., No. 1:CV-08-0166, 2008 U.S. Dist. LEXIS 66696, at *15
(M.D. Pa. Aug. 13, 2008). Accordingly, this Court shall grant Plaintiff leave to amend his
alternative cause of action for negligent infliction of emotional distress.

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V.

Conclusion
For the reasons set forth above, all claims against Defendant Pennsylvania Board of

Probation shall be dismissed with prejudice, as shall all claims against Officer Braswell in her
official capacity. Additionally, Defendants’ motion to dismiss Plaintiff’s Sixth Cause of Action
regarding malicious prosecution shall be granted and Plaintiff’s Second and Seventh Causes of
Action shall be stricken. Defendants’ motion to dismiss Plaintiff’s First, Fourth, and Fifth Causes
of Action shall be denied. Defendants’ motion to dismiss Plaintiff’s Third Cause of Action—his
alternative claim for negligent infliction of emotional distress—shall be granted with leave for
Plaintiff to amend said claim.
An appropriate Order follows.

BY THE COURT:

/s/ C. Darnell Jones, II

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J.