FITZGERALD v. MARTIN et al

Filing 49

MEMORANDUM OPINION. SIGNED BY HONORABLE EDWARD G. SMITH ON 8/3/17. 8/3/17 ENTERED AND COPIES E-MAILED.(mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHRISTOPHER FITZGERALD,
Plaintiff,
v.
JAMES B. MARTIN, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 16-3377

MEMORANDUM OPINION
Smith, J.

August 3, 2017

This action arises from the plaintiff’s interaction with non-uniformed law enforcement
officers in an unmarked police vehicle while driving, and his subsequent arrest, charge,
prosecution, and acquittal from the charges of simple assault, recklessly endangering another
person, reckless driving, and careless driving. The plaintiff asserts a constitutional claim against
Lehigh County under 42 U.S.C. § 1983 for failure to train and supervise the Lehigh County
District Attorney’s Office detectives who interacted with and arrested him, as well as
constitutional claims pursuant to section 1983 against Lehigh County, the Lehigh County District
Attorney, a Lehigh County Assistant District Attorney, and the detectives for malicious
prosecution, false arrest, false imprisonment, and conspiracy to violate his civil rights. The
plaintiff also brings Pennsylvania state law claims against these defendants for malicious
prosecution, false imprisonment, and false arrest.
Currently before the court are motions to dismiss separately filed by the Lehigh County
District Attorney’s Office (on behalf of all of the individual Lehigh County District Attorney’s
Office defendants) and Lehigh County. As detailed below, the court will grant in part and deny
in part the Lehigh County District Attorney’s Office and Lehigh County motions to dismiss. The

court will also dismiss all claims against the District Attorney’s Office defendants and Lehigh
County with the exception of (1) the plaintiff’s false arrest claim against the detectives who
arrested him, and (2) the state law claims against all of the defendants.
I.

ALLEGATIONS AND PROCEDURAL HISTORY

The plaintiff, Christopher Fitzgerald (“Fitzgerald”) was driving his fiancée to work on or
about August 29, 2014, and their infant child was also a passenger in the vehicle. Second
Amended Complaint (“SAC”) at ¶ 31, Doc. No. 34. At the time, Fitzgerald was a corrections
officer at the Lehigh County Department of Corrections, and he frequently received threats from
inmates who claimed that their cohorts outside of jail would harm him. Id. at ¶¶ 33-35. He was
also licensed to carry a firearm both in his official capacity as a corrections officer, and in his
capacity as a private citizen. Id. at ¶ 35.
While Fitzgerald was driving, a grey Infiniti M35 with heavily tinted windows began to
aggressively follow his vehicle. Id. at ¶ 36. After noticing the Infiniti following his vehicle,
Fitzgerald slowed his vehicle and provided the Infiniti with multiple opportunities to go around
him. Id. at ¶¶ 37, 40. The Infiniti did not go around him; instead, it continued to follow him for
several minutes. Id. at ¶ 41. Unknown to Fitzgerald, the driver and passenger of the Infiniti
were Lehigh County District Attorney’s Office (“Lehigh County D.A.’s Office”) Detectives,
Christopher Cruz (“Detective Cruz”) and Todd Frey (“Detective Frey”) (collectively,
“Detectives Cruz and Frey”), who were wearing plain clothes at the time. Id. at ¶¶ 39, 45.
After several minutes, Fitzgerald pulled over his vehicle to the curbside of the right lane,
rolled down his window, and waited for the Infiniti to pass his vehicle. Id. at ¶ 41. Instead of
passing Fitzgerald, the Infiniti pulled alongside his vehicle, blocked it to prevent it from driving
away, and Detective Frey exited the Infiniti and approached Fitzgerald’s vehicle. Id. at ¶¶ 42,
44. Detectives Cruz and Frey did not identify themselves as law enforcement officers. Id. at ¶
2

46. Fitzgerald remained in his vehicle, drew his firearm, and held it pointed downward at chest
level. Id. at ¶¶ 47-48.
When Detectives Cruz and Frey saw Fitzgerald’s firearm, they reversed their vehicle. Id.
at ¶ 49. Fitzgerald drove away and Detectives Cruz and Frey resumed their pursuit in the
Infiniti. Id. at ¶ 50. Shortly thereafter, Fitzgerald pulled into a retail shopping center, where
Detectives Cruz and Frey joined with Whitehall Township Police Officers, Michael Marks
(“Officer Marks”) and Raymond Seiling (“Officer Seiling”) (collectively, “Officers Marks and
Seiling”), and arrested Fitzgerald and his fiancée. Id. at ¶¶ 51, 53. Fitzgerald was charged with
two counts of simple assault, two counts of recklessly endangering another person, one count of
reckless driving, and one count of careless driving. Id. at ¶ 54. Lehigh County prosecuted
Fitzgerald, and following a trial on June 1, 2015, Fitzgerald was found not guilty of all charges.
Id. at ¶¶ 63-64.
Fitzgerald filed the instant lawsuit, asserting claims under 42 U.S.C. §§ 1981, 1983, and
1985(3), as well as under Pennsylvania common law, against Lehigh County District Attorney
James Martin (“District Attorney Martin”), the Lehigh County D.A.’s Office, Assistant District
Attorney Steven Luksa (“A.D.A. Luksa”), Detectives Cruz and Frey, Lehigh County Chief of
Detectives Joseph Stauffer (“Chief Detective Stauffer”), the Whitehall Township Police
Department, Chief of the Whitehall Township Police Department, Linda Kulp (“Chief Kulp”),
Officers Marks and Seiling, Whitehall Township Mayor Edward Hozza (“Mayor Hozza”),
Lehigh County Executive Tom Muller (“Muller”), Lehigh County Department of Corrections
Director Edward Sweeney (“Sweeney”), the Lehigh County Department of Corrections,
Whitehall Township, Lehigh County, and the Whitehall Township Board of Commissioners, on
June 24, 2016. Doc. No. 1. Lehigh County, the Lehigh County Department of Corrections,
Sweeney, and Muller filed a motion to dismiss on August 9, 2016. Doc. No. 8. Whitehall
3

Township, the Whitehall Township Police Department, Chief Kulp, Officers Marks and Seiling,
Mayor Hozza, and the Whitehall Township Board of Commissioners filed a motion to dismiss on
August 10, 2016. Doc. No. 9.
Seemingly in response to the motions to dismiss, Fitzgerald filed an amended complaint
on August 31, 2016, in which he again asserted claims under 42 U.S.C. §§ 1981, 1983, and
1985(3), as well as under Pennsylvania common law, against the aforementioned defendants.
Doc. No. 17.

Although Fitzgerald filed opposition to the motions to dismiss the original

complaint on September 6, 2016 and September 7, 2016, the court subsequently denied those
motions as moot on September 23, 2016, because Fitzgerald had filed an amended complaint.
Doc. Nos. 18, 19, 24.
District Attorney Martin, A.D.A. Luksa, Detectives Cruz and Frey, and the Lehigh
County D.A.’s Office filed a motion to dismiss the amended complaint on September 12, 2016.
Doc. No. 20. Lehigh County, the Lehigh County Department of Corrections, Sweeney, and
Muller filed a motion to dismiss the amended complaint on September 14, 2016. Doc. No. 21.
Whitehall Township, the Whitehall Township Police Department, Chief Kulp, Officers Marks
and Seiling, Mayor Hozza, and the Whitehall Township Board of Commissioners filed a motion
to dismiss the amended complaint on September 19, 2016. Doc. No. 22. Fitzgerald filed
opposition to each of the motions to dismiss the amended complaint on September 28, 2016,
October 3, 2016, and October 11, 2016. Doc. Nos. 27, 28, 29. The court heard oral argument on
the motions to dismiss the amended complaint on November 29, 2016, and granted the motions,
dismissing the amended complaint without prejudice to Fitzgerald to file a second amended
complaint. Doc. Nos. 32, 33.
Fitzgerald timely filed a second amended complaint (“SAC”) on December 20, 2016, this
time bringing nine claims under 42 U.S.C. § 1983 (“section 1983”) and Pennsylvania common
4

law, against District Attorney Martin, A.D.A. Luksa, Detectives Cruz and Frey, the Whitehall
Township Police Department, Chief Kulp, Officers Marks and Seiling, Whitehall Township, and
Lehigh County on December 20, 2016. 1 SAC at ¶¶ 4-22. Fitzgerald brings all claims against the
individual defendants in both their individual and official capacities. Id.
With regard to the allegations against District Attorney Martin, Fitzgerald alleges that
District Attorney Martin directed (1) Chief Kulp and Officers Marks and Seiling to arrest him,
and (2) Lehigh County to prosecute him. Id. at ¶¶ 58, 63. Fitzgerald also alleges that District
Attorney Martin proceeded with the prosecution against him vindictively and with malice as
retribution against his father, who at the time of the incident was the Allentown Chief of Police,
because District Attorney Martin actively lobbied and advocated for former Whitehall Police
Chief, Ted Kohuth, to become the Allentown Chief of Police. Id. at ¶ 71.
Fitzgerald alleges that the Lehigh County D.A.’s Office and Whitehall Township Police
Department have a history and custom of targeting minorities for false arrests and unjust
prosecutions, and that Detectives Cruz and Frey targeted him because he is African American.
Id. at ¶¶ 65, 69. Fitzgerald also alleges that because he is African American, Chief Kulp and
Officers Marks and Seiling effectuated and/or acquiesced to his arrest, and the Lehigh County
D.A.’s Office, including District Attorney Martin and A.D.A. Luksa, proceeded with charges
against him despite the weight of the evidence exonerating him. Id. at ¶¶ 60, 68. Moreover,
Fitzgerald alleges that Detectives Cruz and Frey began their pursuit of his vehicle without any
precipitating cause of suspicion, and conspired to cover up their actions and conceal the events
leading up to his detainment and arrest. Id. at ¶¶ 55, 66.

1

As indicated by the court’s reference to the defendants named in the SAC, Fitzgerald no longer asserts claims
against Chief Detective Stauffer, Mayor Hozza, Muller, Sweeney, the Lehigh County Department of Corrections,
and the Whitehall Township Board of Commissioners.

5

Fitzgerald alleges that Whitehall Township, Chief Kulp, Lehigh County, and District
Attorney Martin failed to adopt, monitor, and enforce appropriate policies and procedures that
would have prevented the constitutional violations he suffered. Id. at ¶¶ 72-75.

Furthermore,

Fitzgerald alleges that the Lehigh County D.A.’s Office and Whitehall Township Police
Department failed to properly train their subordinate employees.

Id. at ¶ 25.

Moreover,

Fitzgerald alleges that Lehigh County and the Whitehall Township Police Department either: (1)
followed a policy or custom to deprive African Americans of equal protection under the law; (2)
followed a policy, custom, or practice that enabled law enforcement officers – without fear of
discipline or consequence – to deprive African Americans of their equal protection rights; or (3)
failed to establish or enforce any policies that would have prevented their employees from
depriving citizens of equal protection under the law. Id. at ¶¶ 61, 67, 70.
With regard to the particular causes of action identified in the SAC, those causes of
action are as follows:
1. Count I: Malicious prosecution in violation of Fitzgerald’s rights under the Fourth and
Fourteenth Amendments of the United States Constitution, brought pursuant to section
1983, against District Attorney Martin, Lehigh County, A.D.A. Luksa, and Detectives
Cruz and Frey. Id. at ¶¶ 79-90.
2. Count II: False Arrest and/or False Imprisonment in violation of Fitzgerald’s rights under
the Fourth Amendment, brought pursuant to section 1983, against District Attorney
Martin, Detectives Cruz and Frey, Lehigh County, Chief Kulp, Officers Marks and
Seiling, and Whitehall Township. Id. at ¶¶ 91-102.
3. Count III: Deliberately indifferent and/or illegal policies, practices, customs, training, and
supervision in violation of Fitzgerald’s rights under the Fourth and Fourteenth

6

Amendments, brought pursuant to section 1983, against Whitehall Township and the
Whitehall Township Police Department. Id. at ¶¶ 103-112.
4. Count IV: Deliberately indifferent and/or illegal policies, practices, customs, training, and
supervision in violation of Fitzgerald’s rights under the Fourth Amendment, brought
pursuant to section 1983, against Lehigh County. Id. at ¶¶ 113-123.
5. Count V: Malicious Prosecution in violation of Fitzgerald’s rights to equal protection
under the laws and under the Fourth and Fifth Amendments, brought pursuant to section
1983, against District Attorney Martin, Detectives Cruz and Frey, A.D.A. Luksa, and
Lehigh County. Id. at ¶¶ 124-142.
6. Count VI: False Arrest and/or False Imprisonment in violation of Fitzgerald’s rights
under the Fourth and Fifth Amendments, brought pursuant to section 1983, against
District Attorney Martin, Detectives Cruz and Frey, Lehigh County, Chief Kulp, Officers
Marks and Seiling, and Whitehall Township. Id. at ¶¶ 143-158.
7. Count VII: Malicious Prosecution under Pennsylvania law against Lehigh County,
District Attorney Martin, A.D.A. Luksa, and Detectives Cruz and Frey. Id. at ¶¶ 159172.
8. Count VIII: False Imprisonment under Pennsylvania law against District Attorney
Martin, Detectives Cruz and Frey, Lehigh County, Chief Kulp, Officers Marks and
Seiling, and Whitehall Township. Id. at ¶¶ 173-184.
9. Count IX: False Arrest under Pennsylvania law against District Attorney Martin,
Detectives Cruz and Frey, Lehigh County, Chief Kulp, Officers Marks and Seiling, and
Whitehall Township. Id. at ¶¶ 185-196.
District Attorney Martin, A.D.A. Luksa, and Detectives Cruz and Frey (collectively, the
“Lehigh County D.A.’s Office Defendants”) filed a motion to dismiss the SAC on January 4,
7

2017. Doc. No. 35. Lehigh County also separately filed a motion to dismiss the SAC that same
day. Doc. No. 36. Whitehall Township, the Whitehall Township Police Department, Chief
Kulp, and Officers Marks and Seiling (collectively, the “Whitehall Township Defendants”) filed
a motion to dismiss the SAC on January 5, 2017. Doc. No. 37. Fitzgerald filed opposition to the
outstanding motions to dismiss on January 18, 2017. Doc. Nos. 39, 40, 41. The court heard oral
argument on the motions on May 26, 2017, during which Fitzgerald agreed to dismiss without
prejudice all claims against the Whitehall Township Defendants. Doc. No. 46. Accordingly, the
court entered an order on May 30, 2017, which (1) dismissed without prejudice the claims
against the Whitehall Township Defendants and (2) denied the Whitehall Township Defendants’
motion to dismiss as moot. Doc. No. 47. The outstanding motions filed by the Lehigh County
D.A.’s Office Defendants and Lehigh County are ripe for disposition.
II.
A.

DISCUSSION
Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for
dismissal of a complaint for failure to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6).

A motion to dismiss under Rule 12(b)(6) tests “the sufficiency of the

allegations contained in the complaint.” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993)
(citation omitted). As the moving party, “[t]he defendant bears the burden of showing that no
claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citation
omitted).
In general, a complaint is legally sufficient if it contains “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “The touchstone
of [this] pleading standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
Although Rule 8(a)(2) does “not require heightened fact pleading of specifics,” it does require
8

the recitation of “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

omitted).
Thus, to survive dismissal, “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at
570). This “plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.
at 570). Thus, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
The Third Circuit employs a three-step approach to evaluate whether a complaint satisfies
the Twombly/Iqbal standard:
First, the court must “tak[e] note of the elements a plaintiff must plead to
state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify
allegations that, “because they are no more than conclusions, are not entitled to
the assumption of truth.” Id. at 1950. Finally, “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.
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal footnote omitted).
B.

Analysis

“Section 1983 provides private citizens with a means to redress violations of federal law
committed by state individuals.” Woodyard v. County of Essex, 514 F. App’x 177, 180 (3d Cir.
2013) (citing 42 U.S.C. § 1983). “[A] plaintiff seeking to hold an individual liable under § 1983
must establish that she was deprived of a federal constitutional or statutory right by a state
actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (citing Benn v. Universal Health Sys.,

9

371 F.3d 165, 169–70 (3d Cir. 2004)). “Accordingly, there can be no cause of action under §
1983 absent violation of a right secured by the Constitution or the laws of the United States.”
Reichley v. Pennsylvania Dep’t of Agric., 427 F.3d 236, 244 (3d Cir. 2005).
When evaluating section 1983 claims,
“[t]he first step . . . is to identify the exact contours of the underlying right said to
have been violated and to determine whether the plaintiff has alleged a
deprivation of a constitutional right at all.” Nicini v. Morra, 212 F.3d 798, 806
(3d Cir. 2000) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118
S.Ct. 1708, 1714 n.5, 140 L.Ed.2d 1043 (1998)). Next, a plaintiff must
demonstrate a defendant’s “personal involvement in the alleged wrongs.” Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). A plaintiff makes sufficient
allegations of a defendant’s personal involvement by describing the defendant’s
participation in or actual knowledge of and acquiescence in the wrongful conduct.
Id. Although a court can infer that a defendant had contemporaneous knowledge
of wrongful conduct from the circumstances surrounding a case, the knowledge
must be actual, not constructive. Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d
Cir. 1995); Rode, 845 F.2d at 1201 n.6. A plaintiff “must portray specific conduct
by state officials which violates some constitutional right.” Gittlemacker v.
Prasse, 428 F.2d 1, 3 (3d Cir. 1970).
Chavarriaga v. New Jersey Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015).
When an individual defendant is a supervisor, there are two theories of supervisory
liability: (1) “Individual defendants who are policymakers may be liable under § 1983 if it is
shown that such defendants, with deliberate indifference to the consequences, established and
maintained a policy, practice or custom which directly caused [the] constitutional harm[,]” and
(2) “a supervisor may be personally liable under § 1983 if he or she participated in violating the
plaintiff’s rights, directed others to violate them, or, as the person in charge, had knowledge of
and acquiesced in his subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile
Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citation omitted); see also Santiago, 629 F.3d at 129
n.5 (acknowledging the same theories of supervisory liability).
A plaintiff bringing a section 1983 claim against a municipality must establish that the
constitutional injury inflicted upon him was “permitted under [the municipality’s] adopted policy
10

or custom.” Mulholland v. Government Cty. of Berks, Pa., 706 F.3d 227, 237 (3d Cir. 2013)
(internal quotation marks and citation omitted). Regarding establishing a policy or custom,
[p]olicy is made when a decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action issues an official proclamation, policy,
or edict. A course of conduct is considered to be a custom when, though not
authorized by law, such practices of state officials [are] so permanent and wellsettled as to virtually constitute law. Custom ... may also be established by
evidence of knowledge and acquiescence.
Id. (internal quotation marks and citation omitted).
1.

Claims Against the Lehigh County D.A.’s Office Defendants

Fitzgerald asserts section 1983 claims against the Lehigh County D.A.’s Office
Defendants, in their individual and official capacities, for malicious prosecution, false arrest,
false imprisonment, and conspiracy. SAC at ¶¶ 79-102, 124-158. He also alleges Pennsylvania
common law claims against them for malicious prosecution, false imprisonment, and false arrest.
Id. at ¶¶ 159-196. The Lehigh County D.A.’s Office Defendants seek dismissal of the section
1983 claims under Rule 12(b)(6) claiming that Fitzgerald has failed to state a claim upon which
relief can be granted. See Defs.’, James B. Martin, Steven Luksa, Christopher Cruz, and Todd
Frey, Mem. of Law in Supp. of Defs.’ Mot. to Dismiss for Failure to State a Claim Upon Which
Relief Can be Granted (“D.A.’s Office MTD”) at 1, 3-4, Doc. No. 35.
a.

Official Capacity Claims

Fitzgerald asserts claims against the Lehigh County D.A.’s Office Defendants in both
their individual and official capacities, and these defendants seek dismissal of the official
capacity claims because they are not policymakers for Lehigh County. Id. at 6-8. The court will
consider whether the individual defendants are policymakers for Lehigh County below in the
context of analyzing Lehigh County’s motion to dismiss. However, the court need not rely on
this argument to determine whether to properly dismiss the official capacity claims because

11

claims against government officials in their official capacities are analyzed as municipal liability
claims against the municipality that employs them. A.M. ex rel. J.M.K., 372 F.3d at 580 (noting
that “[a] suit against a governmental official in his or her official capacity is treated as a suit
against the governmental entity itself” (citation omitted)). Therefore, “[a]n official-capacity suit
is merely another way of pleading an action against an entity of which an officer is an agent.”
Strickland v. Mahoning Twp., 647 F. Supp. 2d 422, 428 (M.D. Pa. 2009) (citing Kentucky v.
Graham, 473 U.S. 159, 165 (1985) (noting that an “[official capacity] suit is properly treated as a
suit against the entity”); see also Whaumbush v. City of Philadelphia, 747 F. Supp. 2d 505, 510
n.2 (E.D. Pa. 2010) (dismissing the claims against the individual defendants in their official
capacities “as they are duplicative of Plaintiffs’ claims against the City” (citing Strickland, 647
F. Supp. 2d at 428 (M.D. Pa. 2009)). Accordingly, the court will dismiss the claims against the
individual Lehigh County D.A.’s Office Defendants in their official capacities as duplicative of
the claims against Lehigh County.
b.

Claims for Punitive Damages

Fitzgerald seeks punitive damages against the Lehigh County D.A.’s Office Defendants.
SAC at ¶¶ 90, 102, 142, 158, 172, 184, 196. The Lehigh County D.A.’s Office Defendants seek
dismissal of the punitive damages claims insofar as they are asserted against them in their
official capacities. D.A.’s Office MTD at 8-9. “Punitive damages in [section] 1983 cases are
available where the defendants have acted with a reckless or callous disregard of, or indifference
to, the rights and safety of others.” Keenan v. City of Philadelphia, 983 F.2d 459, 469-70 (3d
Cir. 1992) (internal quotation marks and citations omitted). “[S]uch damages are unavailable
under sections 1983, 1985, and 1986 against a municipality or against local officials in their
official capacity.” Agresta v. Goode, 797 F. Supp. 399, 410 (E.D. Pa. 1992) (citing City of
Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)); see also Strickland, 647 F. Supp. 2d
12

at 428. However, punitive damages are available in section 1983 actions against officials in their
individual capacities. Agresta, 797 F. Supp. at 410 (citing Smith v. Wade, 461 U.S. 30, 35, 50
(1983)). Here, the court need not consider whether punitive damages are available against the
Lehigh County D.A.’s Office Defendants in their official capacities, because the court is
dismissing all official capacity claims against these defendants as duplicative of the claims
against Lehigh County. 2
c.

Section 1983 Claim for Malicious Prosecution

Through Count I of the SAC, Fitzgerald brings a section 1983 malicious prosecution
claim against the Lehigh County D.A.’s Office Defendants under the Fourth and Fourteenth
Amendments. SAC at ¶¶ 79-90. The Lehigh County D.A.’s Office Defendants argue that the
court should dismiss this count because Fitzgerald has failed to set forth a valid malicious
prosecution claim. D.A.’s Office MTD at 9.
As a preliminary matter, “[a] constitutional claim for malicious prosecution stems from
the Fourth Amendment[.]” Fields v. City of Philadelphia, 166 F. Supp. 3d 528, 540 (E.D. Pa.
2016) (citation omitted). Additionally, “when government behavior is governed by a specific
constitutional amendment, due process analysis is inappropriate.” Berg v. County of Allegheny,
219 F.3d 261, 268 (3d Cir. 2000). Therefore, the court will dismiss the malicious prosecution
claim to the extent that Fitzgerald brings it under the Due Process Clause of the Fourteenth
Amendment, but the court still must consider the merits of the claim under the Fourth
Amendment.

2

Even if the court was not dismissing the official capacity claims against the Lehigh County D.A.’s Office
Defendants as duplicative of the claims against Lehigh County, the court would still dismiss the punitive damages
claims against these defendants in their official capacities. See Agresta, 797 F. Supp. at 410. Additionally, while
Lehigh County does not appear to have moved for dismissal of the punitive damages claims asserted against it,
punitive damages are also not available against it because it is a municipality. Id.

13

To bring a section 1983 claim for malicious prosecution under the Fourth Amendment, a
plaintiff must allege that: “(1) the defendant initiated a criminal proceeding; (2) the criminal
proceeding ended in [the 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 of liberty consistent with the concept
of seizure as a consequence of a legal proceeding.” Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir.
2007) (citation omitted).
Detectives Cruz and Frey contend that Fitzgerald fails to adequately plead the first, third,
and fifth elements of a section 1983 malicious prosecution claim, and that even if he had
adequately pleaded the elements, they are nonetheless entitled to qualified immunity. D.A.’s
Office MTD at 10-12, 14-15. With respect to the first element, Detectives Cruz and Frey
contend Fitzgerald fails to allege that they instituted criminal proceedings against him, and that
as law enforcement officers, they were not responsible for the formal commencement of
criminal proceedings against him. Id. at 11. As to whether police officers can initiate criminal
proceedings as a matter of law, while “prosecutors rather than police officers are generally
responsible for initiating criminal proceedings, an officer may, however, be considered to have
initiated a criminal proceeding if he or she knowingly provided false information to the
prosecutor or otherwise interfered with the prosecutor’s informed discretion.” Henderson v. City
of Philadelphia, 853 F. Supp. 2d 514, 518 (E.D. Pa. 2012) (internal quotation marks and citations
omitted). Here, Fitzgerald alleges that Detectives Cruz and Frey “provided false statements to
authorities to conceal the illegal events leading to their impermissible detainment and arrest of []
Fitzgerald.” SAC at ¶ 66. Therefore, for the purposes of a malicious prosecution claim, they
may be considered to have initiated criminal proceedings against Fitzgerald, and he has satisfied
the first element of a malicious prosecution claim.
14

With respect to the third element, Detectives Cruz and Frey contend that Fitzgerald fails
to adequately plead that they lacked probable cause to initiate proceedings against him. D.A.’s
Office MTD at 14-15. “Probable cause exists whenever reasonably trustworthy information or
circumstances within an arresting officer’s knowledge are sufficient to warrant a person of
reasonable caution to conclude that an offense has been or is being committed by the person
being arrested.” United States v. Laville, 480 F.3d 187, 195 (3d Cir. 2007) (citations omitted).
Additionally, “[t]he validity of an arrest is determined by the law of the state where the arrest
occurred.” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citation omitted). In
determining whether probable cause exists, courts must consider “the totality of the
circumstances within an officer’s knowledge.” Laville, 480 F.3d at 189. When evaluating the
circumstances within an officer’s knowledge and on-the-scene judgments,
we must, of course, remember that police officers may well “draw inferences and
make deductions . . . that might well elude an untrained person.” Nevertheless, an
officer’s inferences and deductions can only justify a warrantless arrest if the
government satisfies its burden of establishing the probable cause necessary to
support the arrest. Notwithstanding the deference afforded the on-the-scene
conclusion of police officers, probable cause must ultimately be decided by the
courts, not the police.
Myers, 308 F.3d at 255 (citations omitted).
Here, Detectives Cruz and Frey argue that the allegations in the SAC demonstrate that
they had probable cause to believe that Fitzgerald had committed the offense of simple assault
under 18 Pa. C.S. § 2701(a)(3). D.A.’s Office MTD at 15 (citing SAC at ¶¶ 41, 44, 48). This
statute provides, in relevant part, that a person is guilty of simple assault if he, inter alia,
“attempts by physical menace to put another in fear of imminent serious bodily injury[.]” 18 Pa.
C.S. § 2701(a)(3). In the SAC, Fitzgerald alleges that (1) Detectives Cruz and Frey were driving
an unmarked vehicle and wearing plain clothes, (2) they did not identify themselves as law
enforcement officers, and (3) after aggressively following him, Detective Frey exited his vehicle
15

and approached Fitzgerald’s car after he pulled over and rolled down his window. SAC at ¶¶ 3842, 44-46.

Additionally, Fitzgerald alleges that when Detective Frey approached his car,

Fitzgerald remained inside his vehicle, and “drew his firearm and held it pointed downward at
chest level[.]” Id. at ¶ 48.
In support of their contention that Fitzgerald’s acts established probable cause that he had
committed the offense of simple assault, Detectives Cruz and Frey reference United States v.
Myers, in which the Third Circuit noted that “common sense suggests that one can menace
someone within the meaning of subsection (3) [of Pennsylvania’s simple assault statute] by
waving a gun during an argument.” 308 F.3d at 257 (citation omitted). However, that case is
factually distinguishable from the allegations presently before the court, as Fitzgerald does not
allege that an argument occurred or that he waved his gun. Furthermore, Detectives Cruz and
Frey cite no authority indicating that the act of holding a gun pointed downward, with no
accompanying aggressive behavior, violates Pennsylvania’s simple assault statute.

Cf.

Commonwealth v. Veni, No. 2641 EDA 2013, 2014 WL 10795074, at *3 (Pa. Super. Nov. 12,
2014) (noting that “[t]he act of pointing a gun at another person [can] constitute simple assault
as an attempt by physical menace to put another in fear of imminent serious bodily injury”)
(emphasis added) (citing Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003)).
Therefore, based on the factual allegations in the SAC, the court cannot conclude that Fitzgerald
attempted by physical menace to put Detectives Cruz and Frey in fear of imminent serious bodily
injury. Consequently, the court cannot conclude that the allegations in the SAC conclusively
establish that they had probable cause to arrest him, and the third element for malicious
prosecution is satisfied.
With respect to the fifth element, Detectives Cruz and Frey contend that Fitzgerald has
failed to allege that he suffered a seizure as a consequence of a legal proceeding. D.A.’s Office
16

MTD at 10. For the purposes of establishing this element of a malicious prosecution claim,
“[t]he alleged seizure must occur as a result of the malicious prosecution, and thus, it must occur
chronologically after the pressing of charges.” Basile v. Township of Smith, 752 F. Supp. 2d 643,
659 (W.D. Pa. 2010) (citation omitted). As to what constitutes a seizure, “[t]he court of appeals
has narrowed the applicable definition of seizure to when a criminal defendant is subject to either
pretrial custody or ‘some onerous types of pretrial, non-custodial restrictions’ such as those on
travel out of the jurisdiction.” Id. (citing DiBella v. Borough of Beachwood, 407 F.3d 599, 601
(3d Cir. 2005); Gallo v. City of Philadelphia, 161 F.3d 217, 224 (3d Cir. 1998)).
In the SAC, Fitzgerald alleges that “[f]ollowing [his] arrest, Lehigh County – at the
direction of Martin – prosecuted [him][.]” SAC at ¶¶ 54, 63. However, the allegations do not
suggest that Fitzgerald was ever in physical custody after charges were brought against him, or
that he experienced any non-custodial restrictions, onerous or otherwise. See id. at ¶¶ 127, 162.
Therefore, Fitzgerald has failed to allege that he suffered a seizure subsequent to the pressing of
charges against him and, as such, he has not plausibly pleaded the fifth element of the malicious
prosecution claim.
Because Fitzgerald fails to adequately plead a claim for malicious prosecution against
Detectives Cruz and Frey, the court must dismiss the claim, and the court need not consider
whether they are entitled to qualified immunity. See Brockington v. City of Philadelphia, 354 F.
Supp. 2d 563, 567 (E.D. Pa. 2005) (noting that that the first step in assessing a qualified
immunity defense is determining “whether the plaintiff has alleged the deprivation of an actual
constitutional right at all”) (citing Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000)).
As to District Attorney Martin and A.D.A. Luksa, they contend that the court must
dismiss the section 1983 malicious prosecution claim asserted against them because it is barred
by absolute prosecutorial immunity. D.A.’s Office MTD at 12. The doctrine of absolute
17

immunity protects state prosecutors “from liability under § 1983 for actions performed in a
quasi-judicial role.” Yarris v. County of Delaware, 465 F.3d 129, 135 (3d Cir. 2006) (citing
Imbler v. Pachtman, 424 U.S. 409, 431 (1976)). Under this doctrine, a prosecutor acting within
the scope of his duties in initiating and pursuing a criminal prosecution is absolutely immune
from civil suit for damages under section 1983 for alleged deprivations of the accused’s
constitutional rights. Imbler, 424 U.S. at 427 (“We conclude that the considerations outlined
above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common
law.”). This “immunity attaches to actions ‘intimately associated with the judicial phases of
litigation,’ but not to administrative or investigatory actions unrelated to initiating and
conducting judicial proceedings.” Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008) (citations
omitted). “[T]he official seeking absolute immunity bears the burden of showing that such
immunity is justified for the function in question.” Burns v. Reed, 500 U.S. 478, 486 (1991)
(citations omitted).
Additionally, “a person is not immune from suit for every wrong he commits just because
he happens to be employed as a prosecutor: the inquiry focuses on the nature of the function
performed, not the identity of the actor who performed it.” Schneyder v. Smith, 653 F.3d 313,
332 (3d Cir. 2011) (internal quotation marks and citation omitted). Courts take a two-step
approach to determining whether a prosecutor’s acts are protected by absolute immunity. Id.
First, “[t]he court must ascertain just what conduct forms the basis for the plaintiff’s cause of
action[.]” Id. (citation omitted). “Th[is] first stage focuses on the unique facts of each case and
requires careful dissection of the prosecutor’s actions.” Id. (citation omitted). Second, the court
must “determine what function (prosecutorial, administrative, investigative, or something else
entirely) that act served.” Id. (citation omitted).

18

Here, Fitzgerald alleges that (1) District Attorney Martin directed Lehigh County to
prosecute him when no reasonable prosecutor could have had a good faith basis to do so; (2)
District Attorney Martin and A.D.A. Luksa proceeded with charges against him “despite the
weight of the evidence exonerating him, because he was an African American[;]” and (3) District
Attorney Martin proceeded with charges against him as retribution against his father for being
hired as Allentown Chief of Police.

SAC at ¶¶ 63, 68, 71.

Crucially, in each of these

allegations, Fitzgerald claims that District Attorney Martin and A.D.A. Luksa are either bringing
charges against him, or directing others to do so. A prosecutor’s act of bringing charges against
a person is part of his prosecutorial function, and therefore protected by absolute immunity.
Kalina v. Fletcher, 522 U.S. 118, 128 (1997) (citation omitted) (noting that “we shield the
prosecutor seeking an indictment because any lesser immunity could impair the performance of a
central actor in the judicial process.”). Therefore, District Attorney Martin and A.D.A. Luksa are
entitled to absolute immunity as prosecutors from the section 1983 malicious prosecution claim
and the court will dismiss that claim against them.
d.

Section 1983 Claims for False Arrest and False Imprisonment

In Count II of the SAC, Fitzgerald brings section 1983 Fourth Amendment claims for
false arrest and false imprisonment against District Attorney Martin and Detectives Cruz and
Frey. SAC at ¶¶ 91-100. District Attorney Martin and Detectives Cruz and Frey seek dismissal
of these claims for Fitzgerald’s failure to state a claim upon which relief can be granted. D.A.’s
Office MTD at 15.
As a preliminary matter, the court will analyze the false arrest and false imprisonment
claims together:
False arrest and false imprisonment are “nearly identical claims,” and courts often
analyze the claims together. Brockington v. City of Phila., 354 F. Supp. 2d 563,
570 n.8 (E.D. Pa. 2005). False arrest is “grounded in the Fourth Amendment’s
19

guarantee against unreasonable seizures,” Groman v. Twp. of Manalapan, 47 F.3d
628, 636 (3d Cir. 1995), where false imprisonment is based upon the Fourth
Amendment’s prohibition against deprivation of liberty without due process of
law, Baker v. McCollan, 443 U.S. 137, 145 (1979). “Claims of both false arrest
and false imprisonment are predicated on an arrest made without probable cause
in violation of the Fourth Amendment.” Quinn v. Cintron, No. 11–2471, 2013
WL 5508667, at *3, 2013 U.S. Dist. LEXIS 143682, at *9 (E.D. Pa. Oct. 3, 2013)
(citing Baker, 443 U.S. at 145, 99 S.Ct. 2689, Groman, 47 F.3d at 636).
Wilson v. Dewees, 977 F. Supp. 2d 449, 455 (E.D. Pa. 2013). To bring a section 1983 claim for
either false arrest or false imprisonment under the Fourth Amendment, a plaintiff must show:
“(1) that there was an arrest; and (2) that the arrest was made without probable cause.” James v.
City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012) (citation omitted); see also Wilson, 977
F. Supp. 2d at 455-56 (E.D. Pa. 2013) (setting forth elements for claims).
Detectives Cruz and Frey contend that the false arrest and false imprisonment claims fail
because (1) they had probable cause to arrest Fitzgerald, and (2) even if they lacked probable
cause to arrest, they are entitled to qualified immunity. D.A.’s Office MTD at 17-18. As to
Detectives Cruz and Frey’s contention that they had probable cause to arrest Fitzgerald, they
assert the same arguments that they did previously with respect to Fitzgerald’s malicious
prosecution claim. Id. at 17-18. The court’s analysis of them is also the same. And again, the
court is limited to considering the allegations in the complaint, and must assume the veracity of
these allegations. Therefore, as with the malicious prosecution claim, the court cannot conclude
that Detectives Cruz and Frey had probable cause to arrest Fitzgerald and, as such, Fitzgerald has
adequately pleaded the elements of false arrest and false imprisonment claims. Nonetheless, the
court must still consider whether Detectives Cruz and Frey are entitled to qualified immunity
with respect to the claims.
“The doctrine of qualified immunity provides that law enforcement officers acting within
their professional capacity are generally immune from trial insofar as their conduct does not

20

violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Brockington, 354 F. Supp. 2d at 567 (internal quotation marks omitted) (citing
Wilson, 212 F.3d at 786 (3d Cir. 2000)). Assessing a qualified immunity defense requires a twostep analysis:
First, a court must “determine whether the plaintiff has alleged the deprivation of
an actual constitutional right at all.” Wilson, 212 F.3d at 786 (citation omitted).
Second, if plaintiff has alleged such a deprivation, a court should “proceed to
determine whether that right was clearly established at the time of the alleged
violation.” Id. This inquiry “must be undertaken in light of the specific context
of the case, not as a broad general proposition.” Curley v. Klem, 298 F.3d 271,
277 (3d Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001)). A constitutional right is established if it is sufficiently clear
and well-defined so that “a reasonable official would understand that what he is
doing violates that right.” Carswell v. Borough of Homestead, 381 F.3d 235, 242
(3d Cir. 2004) (citations omitted). Even if a reasonable official would so
understand, the defendant may still be shielded from liability if he made a
reasonable mistake as to what the law requires. Id. Although it is important to
resolve qualified immunity questions at the earliest possible stages of litigation,
the importance of resolving qualified immunity questions early “is in tension with
the reality that factual disputes often need to be resolved before determining
whether defendant’s conduct violated a clearly established constitutional right.”
Curley[, 298 F.3d at 277-78]. A decision as to qualified immunity is “premature
when there are unresolved disputes of historical facts relevant to the immunity
analysis.” Id. at 278.
Brockington, 354 F. Supp. 2d at 567-68. Here, the court has already determined that Fitzgerald
has adequately alleged the deprivation of an actual constitutional right insofar as he has
sufficiently alleged that Detectives Cruz and Frey arrested him without probable cause. Thus,
the allegations satisfy the first part of the qualified immunity analysis.
As to the second step, the court must determine whether it would have been clear to a
reasonable official that arresting Fitzgerald under the circumstances alleged in the SAC would
violate his rights under the Fourth Amendment. Here, the circumstances alleged in the SAC are
that (1) Detectives Cruz and Frey were driving an unmarked vehicle and wearing plain clothes,
(2) did not identify themselves as law enforcement officers, and (3) after aggressively following

21

Fitzgerald, Detective Frey exited his vehicle and approached Fitzgerald’s car after he pulled over
and rolled down his window. SAC at ¶¶ 38-42, 44-46. Additionally, Fitzgerald alleges that
when Detective Frey approached his car, he remained inside his vehicle, and “drew his firearm
and held it pointed downward at chest level[.]” Id. at ¶ 48.
While the court recognizes the importance of addressing issues of qualified immunity
with respect to Detectives Cruz and Frey as early as possible in this litigation, here, there are
disputed facts that must be resolved before the court can determine whether the claims against
Detectives Cruz and Frey are barred by qualified immunity. Detectives Cruz and Frey contend
that “the arrest of [Fitzgerald] was, in the light of the facts as they confronted them, reasonable
under all of the circumstances, i.e. that Plaintiff was pointing a gun within his vehicle.” D.A.’s
Office MTD at 18. However, Fitzgerald does not allege that he pointed his gun at Detectives
Cruz and Frey, or that he acted aggressively toward them. Furthermore, Detectives Cruz and
Frey cite no authority indicating that a person can be arrested solely on the basis of sitting in a
car and holding a gun at chest-level pointed downward, and the court likewise has found none.
Therefore, to the extent that Detectives Cruz and Frey move to dismiss the section 1983 claims
for false arrest and false imprisonment as barred by the doctrine of qualified immunity, the court
must deny the motion at this stage of the litigation.
District Attorney Martin contends that the section 1983 claims for false arrest and false
imprisonment against him must fail because: (1) he was not the arresting officer; (2) law
enforcement had probable cause to arrest Fitzgerald; and (3) absolute immunity bars the claims.
D.A.’s Office MTD at 16-17.
With respect to District Attorney Martin’s first argument for dismissal, the court notes
that Fitzgerald’s false arrest and false imprisonment claims against District Attorney Martin are
based on a theory of supervisory liability. See SAC at ¶ 58 (alleging that “Martin directed
22

Marks, Seilig [sic] and Kulp to arrest Plaintiff”). Under a theory of supervisory liability, “a
supervisor may be personally liable under § 1983 if he or she participated in violating the
plaintiff’s rights, directed others to violate them, or, as the person in charge, had knowledge of
and acquiesced in his subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det.
Ctr., 372 F.3d 572, 586 (3d Cir. 2004). However, supervisors cannot be liable under section
1983 for the unconstitutional acts of their subordinates based only on a theory of respondeat
superior. See Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010). Here, to state a
claim for supervisory liability against District Attorney Martin, Fitzgerald “must plead that
[District Attorney Martin] directed others to violate [his] rights.” Id. at 130 (internal quotation
marks and citation omitted). Additionally, Fitzgerald “must allege a causal connection between
the supervisor’s direction and that violation, or, in other words, proximate causation.” Id.
“Proximate causation is established where the supervisor gave directions that the supervisor
knew or should reasonably have known would cause others to deprive the plaintiff of [his]
constitutional rights.” Id. (internal quotation marks and citations omitted). Therefore, to state a
false arrest claim against District Attorney Martin based on supervisory liability, Fitzgerald must
plead facts plausibly demonstrating that District Attorney Martin directed others to arrest
Fitzgerald “in a manner that [he] knew or should reasonably have known would cause [the
arresting officers] to deprive [Fitzgerald] of [his] constitutional rights.” Id. (internal quotation
marks and citations omitted).
Here, the SAC contains only one allegation connecting District Attorney Martin to
Fitzgerald’s alleged false arrest and false imprisonment—that “Martin directed Marks, Seilig
[sic] and Kulp to arrest Plaintiff.” SAC at ¶ 58. This allegation of supervisory liability is
conclusory, as it merely recites one of the required elements of a supervisory liability claim—
that District Attorney Martin directed officers in the violation of Fitzgerald’s rights. Santiago,
23

629 F.3d at 131 (finding that an allegation of supervisory liability, “that [the defendants] told
Alpha team to do what they did” was “a formulaic recitation of the elements of a supervisory
liability claim—namely that [the defendants] directed others in the violation of [the plaintiff’s]
rights” (internal quotation marks and citation omitted)). Because the allegation that District
Attorney Martin directed Fitzgerald’s arrest is conclusory, it is “not entitled to the assumption of
truth,” id. (citing Iqbal, 556 U.S. at 678), and Fitzgerald has failed to plead a claim for
supervisory liability. However, even if this allegation was entitled to the assumption of truth,
Fitzgerald still failed to plead a claim for supervisory liability against District Attorney Martin,
because he fails to allege that District Attorney Martin’s alleged direction of Fitzgerald’s arrest
was done “in a manner that [he] knew or should reasonably have known would cause [Detectives
Cruz and Frey] to deprive [Fitzgerald] of [his] constitutional rights.”

Id. at 130 (internal

quotation marks and citations omitted). Therefore, the court will dismiss the false arrest and
false imprisonment claims against District Attorney Martin. Because the court will dismiss the
false arrest and false imprisonment claims against District Attorney Martin for failing to
adequately plead the elements of supervisory liability, the court need not consider District
Attorney Martin’s remaining arguments for dismissal of these claims.
e.

Section 1983 Claims for Civil Rights Conspiracy

Through Counts V and VI of the SAC, Fitzgerald brings section 1983 claims under the
Fourth and Fifth Amendments for conspiracy to commit racial discrimination against Detectives
Cruz and Frey, A.D.A. Luksa, and District Attorney Martin, alleging that they conspired to
falsely arrest, falsely imprison, and maliciously prosecute him based on his race. SAC at ¶¶ 124158. Detectives Cruz and Frey, A.D.A. Luksa, and District Attorney Martin seek dismissal of
the claims because: (1) they cannot be brought under the Fourth and Fifth Amendments, and (2)
Fitzgerald has not adequately pleaded a conspiracy or racial discrimination.
24

As for Detectives Cruz and Frey, A.D.A. Luksa, and District Attorney Martin’s first
argument, “[t]he Due Process Clause of the Fifth Amendment limits the actions of only the
Federal Government. . . . It does not limit the actions of state officials[.]” Thompson v. Wagner,
631 F. Supp. 2d 664, 671 (W.D. Pa. 2008) (citing Huffaker v. Bucks Cty. Dist. Attorney’s Office,
758 F. Supp. 287, 290 (E.D. Pa. 1991)). Here, Fitzgerald has not sued any federal defendants.
Therefore, to the extent that the Fitzgerald brings conspiracy to commit racial discrimination
claims under the Fifth Amendment, the court will dismiss them.
Additionally, racial discrimination claims are properly brought under the Equal
Protection Clause of the Fourteenth Amendment, not the Fourth Amendment.
The Equal Protection Clause of the Fourteenth Amendment prohibits states from
“deny[ing] to any person within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV, § 1. It guarantees fairness and equality in the treatment
of individuals by government officials. See Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 264–66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977);
Washington v. Davis, 426 U.S. 229, 239–42, 96 S.Ct. 2040, 48 L.Ed.2d 597
(1976). Selective enforcement of law or regulations motivated by an individual’s
race may give rise to a violation of the Fourteenth Amendment. See Whren v.
United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Bradley
v. United States, 299 F.3d 197, 205 (3d Cir. 2002).
Watson v. Witmer, 183 F. Supp. 3d 607, 613 (M.D. Pa. 2016). Here, counts five and six of the
SAC appear to allege racial discrimination claims. Specifically, Fitzgerald alleges: (1) “Plaintiff,
as an African American citizen, is a member of a protected class[,]” SAC at ¶ 125; (2) “The
criminal proceedings were initiated with malice and were motivated by Plaintiff’s racial
classification as an African American citizen[,]” id. at ¶ 129; (3) “Defendants intentionally,
willfully, and maliciously conspired to deprive Plaintiff because of his race (either directly or
indirectly) of the equal protection of the laws or of equal privileges and immunities under the
laws; and in furtherance of the conspiracy[,]” id. at ¶ 130; (4) “Defendants caused the detention
of Plaintiff and were motivated by Plaintiff’s racial classification as an African American[,]” id.

25

at ¶ 144; (5) “Defendants, Martin, Cruz, Frey, [and] Lehigh County . . . intentionally, willfully,
and maliciously conspired to deprive Plaintiff because of his race (either directly or indirectly) of
the equal protection of the laws or of equal privileges and immunities under the laws; and in
furtherance of the conspiracy[,]” id. at ¶ 147; and (6) “Defendants would not have deprived
Plaintiff of his rights if he was not African American,” id. at ¶ 150. Because the claims appear to
be racial discrimination claims, the court must dismiss them to the extent Fitzgerald brings them
under the Fourth Amendment, and because he fails to properly bring them under the Fourteenth
Amendment, the court must dismiss them in their entirety. Nonetheless, even if Fitzgerald had
properly brought the civil rights conspiracy claims under the Fourteenth Amendment, the court
must still dismiss them because he failed to plead facts to satisfy the elements of conspiracy and
racial discrimination.
To state a claim for conspiracy under section 1983, Fitzgerald must establish that “two or
more conspirators reach[ed] an agreement to deprive [him] of a constitutional right under color
of law.” Berrios v. City of Philadelphia, 96 F. Supp. 3d 523, 534 (E.D. Pa. 2015) (citing
Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir. 1993)). “Such a conspiracy
requires a meeting of the minds.” Id. (citing Startzell v. City of Phila., 533 F.3d 183, 205 (3d
Cir. 2008)). Additionally, “[a] plaintiff must allege a factual basis to support agreement and
concerted action-the elements of conspiracy.” Id. (citation omitted). Moreover,
“[t]o withstand a motion to dismiss, a complaint alleging a civil rights conspiracy
should identify with particularity the conduct violating plaintiffs’ rights, the time
and place of these actions, and the people responsible therefor.” DeJohn v.
Temple University, 2006 WL 2623274, at *5 (E.D. Pa. Sept. 11, 2006) (quoting
Boddorff v. Publicker Indus., Inc., 488 F.Supp. 1107, 1112 (E.D. Pa. 1980)).
Specific allegations of an agreement to carry out the alleged chain of events is
essential in stating a claim for conspiracy. Spencer v. Steinman, 968 F.Supp.
1011, 1020 (E.D. Pa. 1997). “It is not enough that the end result of the parties’
independent conduct caused plaintiff harm or even that the alleged perpetrators of
the harm acted in conscious parallelism.” Id.

26

Rosembert v. Borough of E. Lansdowne, 14 F. Supp. 3d 631, 648 (E.D. Pa. 2014). Additionally,
a plaintiff “must provide more than mere incantation of the words conspiracy or acted in concert
to satisfy [the] Rule 8 pleading requirement.” Tarapchak v. Lackawanna Cty., 173 F. Supp. 3d
57, 73 (M.D. Pa. 2016) (internal quotation marks omitted) (citing Loftus v. SEPTA, 843 F. Supp.
981, 987 (E.D. Pa. 1994).
Here, the only allegations of a conspiracy between Detectives Cruz and Frey, A.D.A.
Luksa, and District Attorney Martin are that: (1) “Defendants Cruz and Frey conspired
intentionally to cover up their actions against Mr. Fitzgerald[,]” SAC at ¶ 66; (2) “In order to
facilitate the false arrest and malicious prosecution of Mr. Fitzgerald, Defendants conspired to
trump up charges against Mr. Fitzgerald and knowingly and intentionally disregarded the weight
of the evidence exonerating Mr. Fitzgerald[,]” id. at ¶ 76; (3) “Defendants intentionally,
willfully, and maliciously conspired to deprive Plaintiff because of his race (either directly or
indirectly) of the equal protection of the laws or of equal privileges and immunities under the
laws; and in furtherance of the conspiracy[,]” id. at ¶¶ 130, 147; and (4) “These defendants began
the conspiracy when Cruz and Frey decided to follow Plaintiff aggressively and the conspiracy
lasted until Plaintiff was acquitted of all charges,” id. at ¶¶ 131, 148.

None of the

aforementioned allegations allege facts supporting an agreement between Detectives Cruz and
Frey, A.D.A. Luksa, and District Attorney Martin, or any concerted acts taken by them.
Accordingly, Fitzgerald has failed to plead a conspiracy in the SAC.
To state an equal protection claim for racial discrimination under section 1983, Fitzgerald
must establish that the actions of government officials “(1) had a discriminatory effect and (2)
were motivated by a discriminatory purpose.” Bradley v. United States, 299 F.3d 197, 205 (3d
Cir. 2002) (citations omitted). To establish a discriminatory effect, Fitzgerald must “show that
[he] is a member of a protected class and that [he] was treated differently from similarly situated
27

individuals in an unprotected class.” Id. at 206 (citations omitted). Here, Fitzgerald alleges—
and Detectives Cruz and Frey and District Attorney Martin concede—that he is a member of a
protected class. SAC at ¶ 125; D.A.’s Office MTD at 20. However, Detectives Cruz and Frey,
A.D.A. Luksa, and District Attorney Martin contend that he fails to adequately plead that he was
treated differently from similarly situated individuals in an unprotected class.
With respect to Fitzgerald’s treatment by Detectives Cruz and Frey, A.D.A. Luksa, and
District Attorney Martin, he includes the following allegations in the SAC: (1) “The criminal
proceedings were initiated with malice and were motivated by Plaintiff’s racial classification as
an African American citizen[,]” SAC at ¶ 129; (2) “Defendants intentionally, willfully, and
maliciously conspired to deprive Plaintiff because of his race (either directly or indirectly) of the
equal protection of the laws or of equal privileges and immunities under the laws; and in
furtherance of the conspiracy[,]” id. at ¶ 130; (3) “Defendants caused the detention of Plaintiff
and were motivated by Plaintiff’s racial classification as an African American[,]” id. at ¶ 144; (4)
“Defendants, Martin, Cruz, Frey, [and] Lehigh County . . . intentionally, willfully, and
maliciously conspired to deprive Plaintiff because of his race (either directly or indirectly) of the
equal protection of the laws or of equal privileges and immunities under the laws; and in
furtherance of the conspiracy[,]” id. at ¶ 147; and (5) “Defendants would not have deprived
Plaintiff of his rights if he was not African American,” id. at ¶ 150. Here, while Fitzgerald
alleges the conclusion that Detectives Cruz and Frey, A.D.A. Luksa, and District Attorney
Martin treated him the way that they did based on his race, he does not allege any facts that he
was treated differently from other similarly situated individuals who were not in a protected
class. Therefore, the allegations do not establish that the actions of Detectives Cruz and Frey,
A.D.A. Luksa, and District Attorney Martin had a discriminatory effect and, as such, Fitzgerald
has failed to plead a claim for racial discrimination under section 1983. Ultimately, because
28

Fitzgerald has failed to plead conspiracy and racial discrimination claims, and because the civil
rights conspiracy claims are not properly brought pursuant to the Fourteenth Amendment, the
court must dismiss these claims.
f.

Pennsylvania State Law Claims

Through Counts VII, VIII, and IX of the SAC, Fitzgerald brings claims under
Pennsylvania state law against the D.A.’s Office Defendants for malicious prosecution, false
arrest, and false imprisonment.

SAC at ¶¶ 159-196.

The D.A.’s Office Defendants seek

dismissal of the Pennsylvania state law claims because they contend that retaining jurisdiction
over the claims would not serve judicial economy, convenience, or fairness, after the court
dismisses the section 1983 claims. See D.A.’s Office MTD at 6. With respect to supplemental
jurisdiction, 28 U.S.C. § 1367 provides:
[I]n any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States
Constitution.
28 U.S.C. § 1367(a). The statute also provides for circumstances when a district court may
decline to exercise supplemental jurisdiction over a state law claim, including, inter alia, when
“the district court has dismissed all claims over which it has original jurisdiction[.]” 28 U.S.C. §
1367(c). “The decision to retain or decline jurisdiction over state-law claims is discretionary . . .
based on considerations of judicial economy, convenience and fairness to the litigants.” Kach v.
Hose, 589 F.3d 626, 650 (3d Cir. 2009) (internal quotation marks and citations omitted).
However, “where federal claims are dismissed before trial, the district court must decline to
decide the pendent state claims unless considerations of judicial economy, convenience, and
fairness to the parties provide an affirmative justification for doing so.”

Bonenberger v.

Plymouth Twp., 132 F.3d 20, 23 n.1 (3d Cir. 1997) (citation and internal quotation marks
29

omitted). Finally, “[i]f a district court decides not to exercise supplemental jurisdiction and
therefore dismisses state-law claims, it should do so without prejudice, as there has been no
adjudication on the merits.” Kach, 589 F.3d at 650 (citing Figueroa v. Buccaneer Hotel Inc.,
188 F.3d 172, 181 (3d Cir. 1999)).
Here, the D.A.’s Office Defendants do not contest that Fitzgerald’s Pennsylvania state
law claims are so related to his federal claims that they form part the same case or controversy.
Additionally, while the court dismisses some of the section 1983 claims that it has original
jurisdiction over, it does not dismiss them all.

Therefore, the court will not dismiss the

Pennsylvania state law claims.
2.

Claims Against Lehigh County

Fitzgerald alleges section 1983 claims against Lehigh County for malicious prosecution,
false arrest and false imprisonment, deliberately indifferent and/or illegal policies, practices,
customs, training, and supervision, and conspiracy to commit racial discrimination. SAC at ¶¶
79-102, 113-158. Fitzgerald also alleges Pennsylvania common law claims against Lehigh
County for malicious prosecution, false imprisonment, and false arrest. Id. at ¶¶ 159-196.
Lehigh County seeks dismissal of Fitzgerald’s section 1983 claims for failure to state a claim
pursuant to Rule 12(b)(6), and seeks dismissal of the state law claims, arguing that after
dismissing the section 1983 claims, the court’s exercise of supplemental jurisdiction over them
would not serve judicial economy, convenience, or fairness. Brief in Supp. of Def. Lehigh Cty.’s
Rule 12(b)(6) Mot. to Dismiss the SAC (“Lehigh Cty. MTD”) at 4, 12, Doc. No. 36-1.
Because Lehigh County is a municipality, the framework for establishing liability under
section 1983 involves two steps: (1) first, Fitzgerald “must show that [he] [was] deprived of
‘rights, privileges, or immunities secured by the Constitution and laws,’” (2) second, he must
show “that the deprivation of those rights was the result of an official government policy or
30

custom.” Mulholland v. Government Cty. of Berks, Pa., 706 F.3d 227, 238 (3d Cir. 2013).
“[L]iability simply cannot be predicated upon a showing of respondeat superior.” Reitz v.
County of Bucks, 125 F.3d 139, 146 (3d Cir. 1997). Satisfying the first step requires the same
analysis that the court used in evaluating Fitzgerald’s claims against the D.A.’s Office
Defendants—the court must identify the elements of the constitutional tort alleged, and then
determine whether Fitzgerald has alleged sufficient facts to satisfy the Iqbal/Twombly standard.
As to the second step, Fitzgerald must allege an unlawful policy or custom, as well as a
causal link between the unlawful policy or custom and the constitutional deprivation. With
respect to the unlawful policy or custom,
[p]olicy is made when a decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action issues an official proclamation, policy,
or edict. Custom, on the other hand, can be proven by showing that a given
course of conduct, although not specifically endorsed or authorized by law, is so
well-settled and permanent as virtually to constitute law.
In either instance, a plaintiff must show that an official who has the power to
make policy is responsible for either the affirmative proclamation of a policy or
acquiescence in a well-settled custom. . . . In order to identify who has
policymaking responsibility, a court must determine which official has final,
unreviewable discretion to make a decision or take an action. Under § 1983, only
the conduct of those officials whose decisions constrain the discretion of
subordinates constitutes the acts of the municipality. This does not mean,
however, that the responsible decisionmaker must be specifically identified by the
plaintiff’s evidence. Practices so permanent and well settled as to have the force
of law [are] ascribable to municipal decisionmakers.
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (internal quotation marks and citations
omitted).
Incidents involving constitutional violations can also establish a policy or custom
provided that certain conditions are met:
A single incident violating a constitutional right done by a governmental agency’s
highest policymaker for the activity in question may suffice to establish an official
policy. A single incident by a lower level employee acting under color of law,
however, does not suffice to establish either an official policy or a custom.
31

However, if custom can be established by other means, a single application of the
custom suffices to establish that it was done pursuant to official policy and thus to
establish the agency’s liability.
Fletcher v. O’Donnell, 867 F.2d 791, 793 (3d Cir. 1989) (internal citations omitted).
With respect to the causal link to the constitutional deprivation, “a plaintiff must
demonstrate a ‘plausible nexus’ or ‘affirmative link’ between the municipality’s custom and the
specific deprivation of constitutional rights at issue.” Bielevicz, 915 F.2d at 850 (citations
omitted). Furthermore, a plaintiff “need not demonstrate that [his] injuries were the direct result
of formal departmental procedures or encouragement in order to satisfy the nexus requirement.”
Id. at 851. Instead, a plaintiff must establish “that policymakers were aware of similar unlawful
conduct in the past, but failed to take precautions against future violations, and that this failure,
at least in part, led to their injury.” Id. With this framework in mind, the court considers the
claims against Lehigh County.
a.

Section 1983 Claim for Malicious Prosecution

Through Count I of the SAC, Fitzgerald brings a section 1983 malicious prosecution
claim against Lehigh County under the Fourth and Fourteenth Amendments. SAC at ¶¶ 79-90.
Lehigh County seeks dismissal based on the SAC’s failure to plead facts that Fitzgerald’s alleged
malicious prosecution was the result of a county policy or custom. Lehigh Cty. MTD at 5-7. As
a preliminary matter, and as the court detailed with respect to the malicious prosecution claim
against the D.A.’s Office Defendants, the court will dismiss the malicious prosecution claim
against Lehigh County insofar as it is brought pursuant the Fourteenth Amendment, because it
must properly be brought under the Fourth Amendment. See Berg v. County of Allegheny, 219
F.3d 261, 268 (3d Cir. 2000) (citation omitted); Fields v. City of Philadelphia, 166 F. Supp. 3d
528, 540 (E.D. Pa. 2016) (citation omitted). Nonetheless, the court still must consider the merits
of Fitzgerald’s claim against Lehigh County under the Fourth Amendment.
32

The court has already determined that Fitzgerald failed to adequately plead the elements
of a section 1983 malicious prosecution claim because he failed to allege that he suffered a
seizure as a consequence of a legal proceeding—one of the elements required to state a claim for
malicious prosecution. Because Fitzgerald fails to plead the elements for malicious prosecution,
he fails to establish that he was deprived of a right, privilege, or immunity secured by the
Constitution and laws. See Mulholland, 706 F.3d at 238. Without an underlying deprivation of a
constitutional right, Lehigh County cannot be liable under section 1983, and the claim fails.
Therefore, the court will dismiss the malicious prosecution claim against Lehigh County, and the
court need not consider the second step in the municipal liability framework—whether Fitzgerald
adequately pleads that his alleged constitutional deprivation was the result of a Lehigh County
policy or custom.
b.

Section 1983 Claims for False Arrest and False Imprisonment

Through Count II of the SAC, Fitzgerald brings section 1983 claims for false arrest and
false imprisonment against Lehigh County under the Fourth Amendment. SAC at ¶¶ 91-102.
Lehigh County seeks dismissal based on Fitzgerald’s failure to establish that his alleged
malicious prosecution was the result of a county policy or custom. Lehigh County MTD at 7-8.
The court detailed the elements required to bring section 1983 false arrest and false
imprisonment claims under the Fourth Amendment when the court analyzed Fitzgerald’s false
arrest and false imprisonment claims against the D.A.’s Office Defendants. In analyzing these
claims against the D.A.’s Office Defendants, the court determined that Fitzgerald adequately
pleads the elements with respect to Detectives Cruz and Frey, but not with respect to District
Attorney Martin and A.D.A. Luksa. Therefore, since Fitzgerald has pleaded that he suffered a
constitutional deprivation, the court must next consider whether he has plausibly pleaded facts
showing that Detectives Cruz and Frey acted pursuant to a Lehigh County policy or custom
33

when they allegedly falsely arrested and falsely imprisoned him. See Mulholland, 706 F.3d at
238.
With respect to whether Cruz and Frey acted pursuant to a Lehigh County policy or
custom when they allegedly falsely arrested and falsely imprisoned Fitzgerald, he alleges: (1)
“the Lehigh County District Attorney’s Office . . . [has] a history and custom of targeting
minorities for false arrest and unjust prosecutions[,]” SAC at ¶ 69; (2) “[Detectives] Cruz and
Frey regularly conducted themselves in the manner described herein[,]” id. at ¶ 98; (3) “Lehigh
County knew, or should have known, of the behavior of Defendants Cruz and Frey; and the
County failed to take all necessary and proper corrective measures to ensure they did not violate
individuals’ well-established constitutional rights[;]” id. at ¶ 99; and (4) “[District Attorney]
Martin, as Lehigh County District Attorney, the chief policy maker for the Lehigh County
District Attorney’s office, failed to adopt, monitor and/or enforce appropriate policies and
procedures that would have prevented the constitutional violations suffered by Plaintiff and other
citizens,” id. at ¶ 75. He also alleges that his seizure and detention
by employees of Lehigh County and Whitehall Township, demonstrates that both
Lehigh County and Whitehall Township either:
a. followed a policy, custom or practice to deprive citizens of their
constitutional freedoms, especially African Americans of the equal
protection of the law; or
b. followed a policy, custom or practice that enabled subordinate employees
– without fear of discipline or consequence – to deprive citizens of their
constitutional freedoms, especially African Americans of their equal
protection rights; or
c. failed to establish or enforce any policies that would have prevented the
Defendants from depriving citizens of the equal protection of the law.
Id. at ¶ 96. However, the SAC contains no factual allegations to support that Lehigh County has
a policy or custom of targeting minorities.

The SAC also contains no factual allegations

supporting that Lehigh County has a policy of acquiescence toward Detectives Cruz and Frey
targeting minorities for false arrest. Moreover, to the extent that the Fitzgerald seeks to impose
34

liability on Lehigh County by establishing a policy or custom based on the single incident of
Detectives Cruz and Frey arresting him, he cannot do so, because Detectives Cruz and Frey are
not policymakers for Lehigh County. See Fletcher, 867 F.2d at 793. Accordingly, because
Fitzgerald fails to plausibly plead that Cruz and Frey acted pursuant to a Lehigh County policy or
custom when they allegedly falsely arrested and falsely imprisoned Fitzgerald, the court will
dismiss the claim against Lehigh County.
c.

Section 1983 Claim for Failure to Train and Supervise

Through Count IV of the SAC, Fitzgerald brings a section 1983 claim under the Fourth
and Fourteenth Amendments against Lehigh County for failure to train and supervise Detectives
Cruz and Frey—alleging that Lehigh County’s failure to adequately train and supervise them
caused his false arrest, false imprisonment, malicious prosecution, and denial of equal protection
under the laws. 3 SAC at ¶¶ 113-123. Lehigh County seeks dismissal of the failure to train and
supervise claim, arguing that the SAC lacks factual allegations that the county was on notice of
the need for a new training program. Lehigh County MTD at 8-10.
As with other section 1983 municipal liability claims, to bring a section 1983 claim
against a municipality for failure to train and supervise its employees, a plaintiff must show that:
(1) “‘[he] [was] deprived of rights, privileges, or immunities secured by the Constitution and
laws,’” and (2) “that the deprivation of those rights was the result of an official government
policy or custom.” Mulholland, 706 F.3d at 238. However, because “the policy concerns a
failure to train or supervise municipal employees, liability under section 1983 [also] requires a
showing that the failure amounts to deliberate indifference to the rights of persons with whom

3

The court notes that some of the allegations pertinent to this claim indicate that Lehigh County failed to train and
supervise all “Defendants,” while others indicate that Lehigh County failed to train and supervise Detectives Cruz
and Frey. Nonetheless, taking into consideration the totality of all the allegations pertinent to the failure to train and
supervise claims, the claims appear to be based on the alleged constitutional deprivations caused by only Detectives
Cruz and Frey.

35

those employees will come into contact.” Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d
Cir. 2014) (internal quotation marks and citation omitted).
“Deliberate indifference is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action.” Connick v. Thompson, 563
U.S. 51, 61 (2011) (internal quotation marks and citation omitted). Additionally,
[a] pattern of similar constitutional violations by untrained employees is
ordinarily necessary to demonstrate deliberate indifference for purposes of failure
to train. Policymakers’ continued adherence to an approach that they know or
should know has failed to prevent tortious conduct by employees may establish
the conscious disregard for the consequences of their action—the deliberate
indifference—necessary to trigger municipal liability.
Id. (internal quotation marks and citation omitted). However, in certain narrow circumstances,
even in the absence of a pattern of similar violations, a “failure to train may amount to deliberate
indifference where the need for more or different training is obvious, and inadequacy very likely
to result in violation of constitutional rights.” Carter v. City of Philadelphia, 181 F.3d 339, 357
(3d Cir. 1999) (citation omitted); see also City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n.10
(1989) (hypothesizing that a city that arms its police officers and deploys them into the public to
capture fleeing felons without training them on the use of deadly force could reflect deliberate
indifference to the consequence based on the predictability that an officer lacking specific tools
to handle that situation would violate citizen’s rights). Under these narrow circumstances, a
plaintiff may establish deliberate indifference based on a single incident. See Thomas, 749 F.3d
at 223-27 (vacating the district court’s grant of summary judgment in a suit based on singleincident liability filed by an inmate who was attacked by other inmates, and noting that there
were genuine issues of material fact as to whether the county exhibited deliberate indifference to
the need for pre-service training in conflict de-escalation and intervention); see also Berg, 219
F.3d at 277 (reversing a district court’s grant of summary judgment in a suit based on single-

36

incident liability filed by a plaintiff who was wrongly arrested pursuant to a warrant that was
erroneously issued when a clerk transposed two numbers because “[h]aving employed a design
where the slip of a finger could result in wrongful arrest and imprisonment, there remain[ed] an
issue of fact whether the County was deliberately indifferent to an obvious risk.”).
In addition to deliberate indifference, “[t]he failure to train must have a causal nexus with
[the plaintiff’s] injury.”

Thomas, 749 F.3d at 226 (citation and internal quotation marks

omitted). “Liability cannot rest only on a showing that the employees could have been better
trained or that additional training was available that would have reduced the overall risk of
constitutional injury.” Id. (citation and internal quotation marks omitted). “Rather, the causation
inquiry focuses on whether the injury [could] have been avoided had the employee been trained
under a program that was not deficient in the identified respect.” Id. (citation and internal
quotation marks omitted).

With these required elements in mind, the court turns to the

allegations contained in the SAC.
Here, the court has already determined (through analyzing the claims against the D.A.’s
Office Defendants) that Fitzgerald failed to plead claims for malicious prosecution under the
Fourth Amendment and for denial of equal protection under the laws, pursuant to the Fourteenth
Amendment. Therefore, Fitzgerald’s failure to train claim cannot arise from those alleged acts.
Furthermore, because Fitzgerald’s alleged denial of equal protection under the laws is the only
basis for the failure to train claim being brought under the Fourteenth Amendment, the court
must dismiss the failure to train claim to the extent that Fitzgerald brings it under the Fourteenth
Amendment. Nonetheless, because the court has already determined that Fitzgerald adequately
pleads a false arrest claim against Detectives Cruz and Frey, the court must consider the failure
to train claim arising from Fitzgerald’s alleged false arrest by Detectives Cruz and Frey.

37

With respect to Lehigh County’s failure to train Detectives Cruz and Frey, the SAC
contains the following allegations: (1) “Subordinate employees of Lehigh County acted under the
color of state law – clothed in their authority as law enforcement officers and members of the
District Attorney’s office – to intentionally deprive Mr. Fitzgerald of his right to be free from
unlawful searches, seizures, detention and malicious prosecution[,]” SAC at ¶ 117; (2)
“Furthermore, upon information and belief, Defendants Cruz and Frey regularly conducted
themselves in the manner described herein[,]” id. at ¶ 118; (3) “Lehigh County knew, or should
have known, of the behavior of Defendants Cruz and Frey; and the County failed to take all
necessary and proper corrective measures to ensure they did not violate individuals’ wellestablished constitutional rights,” id. at ¶ 119; and (4) “Lehigh County’s failures, as described
herein, evidence that it was deliberately indifferent to the Plaintiff’s constitutional rights,” id. at ¶
120.

Through these allegations, Fitzgerald has failed to allege any facts to support that

Detectives Cruz and Frey had a pattern or history of making similar false arrests. He has also
failed to allege any facts showing that a Lehigh County policymaker knew or should have known
that the county’s current training policies would fail to prevent his alleged false arrest. Finally,
while the court recognizes that under certain narrow circumstances, a plaintiff may establish
deliberate indifference based on a single incident, the SAC contains no factual allegations
suggesting that Fitzgerald’s arrest represents one of those narrow circumstances. Therefore,
because Fitzgerald fails to include sufficient factual allegations demonstrating that Lehigh
County was deliberately indifferent to his constitutional rights, the court will dismiss the failure
to train and supervise claim.
d.

Section 1983 Claims for Civil Rights Conspiracy

Through Counts V and VI of the SAC, Fitzgerald brings section 1983 claims under the
Fourth and Fifth Amendment for conspiracy to commit racial discrimination against Lehigh
38

County—alleging that it conspired to falsely arrest, falsely imprison, and maliciously prosecute
him based on his race. SAC at ¶¶ 124-158. Lehigh County seeks dismissal of the claims
because (1) the SAC does not contain factual allegations supporting a conspiracy, and (2)
Fitzgerald fails to allege that his alleged constitutional deprivation was the result of a Lehigh
County policy or custom. Lehigh County MTD at 10-11. As a preliminary matter, to the extent
that Fitzgerald brings these claims under the Fourth and Fifth Amendments, they must be
dismissed because as to the Fifth Amendment claim, he names no federal defendants, and as to
the Fourth Amendment claim, racial discrimination claims must be brought under the Fourteenth
Amendment. See Watson v. Witmer, 183 F. Supp. 3d 607, 613 (M.D. Pa. 2016); Thompson v.
Wagner, 631 F. Supp. 2d 664, 671 (W.D. Pa. 2008) (citation omitted). Nevertheless, even if
Fitzgerald had properly brought the civil rights conspiracy claims under the Fourteenth
Amendment, the court must still dismiss them due to his failure to plead plausible facts to satisfy
the elements of a civil rights conspiracy.
The court has already explained, with respect to his civil rights conspiracy claim against
the D.A.’s Office Defendants, that Fitzgerald failed to state a claim upon which relief could be
granted because he failed to include factual allegations supporting (1) a conspiracy between
District Attorney Martin, A.D.A. Luksa, and Detectives Cruz and Frey, and (2) that their actions
had a discriminatory effect on Fitzgerald.

Because Fitzgerald fails to plead the elements

necessary to state a section 1983 claim for conspiracy to commit racial discrimination, he fails to
establish that he was deprived of a right, privilege, or immunity secured by the Constitution and
any applicable laws. See Mulholland, 706 F.3d at 238. Without this underlying deprivation of a
constitutional right, Lehigh County cannot be liable under section 1983, and the claim must fail.
Therefore, the court will dismiss the section 1983 claims for conspiracy to commit racial

39

discrimination against Lehigh County, and the court need not consider the second step of the
framework for municipal liability.
e.

Pennsylvania State Law Claims

Through Counts VII, VIII, and IX of the SAC, Fitzgerald brings claims under
Pennsylvania state law against Lehigh County for malicious prosecution, false arrest, and false
imprisonment. SAC at ¶¶ 159-196. Like the D.A.’s Office Defendants, Lehigh County seeks
dismissal because retaining jurisdiction over them would not serve judicial economy,
convenience, or fairness, if the court dismisses the section 1983 claims. See Lehigh County
MTD at 12. The court’s supplemental jurisdiction analysis over these claims with respect to
Lehigh County is the same as the analysis as to the D.A.’s Office Defendants. Therefore,
because the court dismisses some (but not all) of the section 1983 claims over which the court
has original jurisdiction, the court will not dismiss the Pennsylvania state law claims. 4
3.

Leave to File a Third Amended Complaint

The decision to grant or deny leave to file an amended complaint is at the court’s
discretion. Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000) (noting, “[w]e review the District
Court’s decision to deny the [plaintiff’s] request to amend for abuse of discretion.”) (citation
omitted). With respect to the grant or denial of leave to file an amended complaint, the Third
Circuit has set forth the following guidance:
Under the Federal Rules of Civil Procedure, a plaintiff is entitled to amend her
claim once; courts may grant subsequent amendments “when justice so requires.”
Fed.R.Civ.P. 15(a). While this Rule also requires that leave to amend should be
“freely given,” a district court has the discretion to deny this request if it is
apparent from the record that (1) the moving party has demonstrated undue delay,
bad faith or dilatory motives, (2) the amendment would be futile, or (3) the
4

While Lehigh County does not seek dismissal of the Pennsylvania state law claims based on the Political
Subdivision Tort Claims Act (“PTSA”), the PTSA likely immunizes Lehigh County from such claims. The PTSA
limits municipal liability in tort to claims arising out of enumerated categories. See 42 Pa.C. S. § 8542; Travis v.
Deshiel, 832 F. Supp. 2d 449, 455 (E.D. Pa. 2011). False arrest, false imprisonment, and malicious prosecution do
not fall within these categories. Id.

40

amendment would prejudice the other party. See Foman v. Davis, 371 U.S. 178,
182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). While a District Court has substantial
leeway in deciding whether to grant leave to amend, when it refuses this type of
request without justifying its decision, this action is “not an exercise of its
discretion but an abuse of its discretion.” Id.
Id. However, where a plaintiff does not request leave to file an amended complaint, the court
need not permit him to do so. Ruddy v. U.S. Postal Serv., 455 F. App’x 279, 283 (3d Cir. 2011)
(holding that “the District Court did not abuse its discretion by denying [the plaintiff’s] request
to file an amended complaint, because, even though the R&R recommended the claims be
dismissed without prejudice, [the plaintiff’s] failure to file a motion for leave to amend or an
amended complaint meant the District Court ‘had nothing upon which to exercise its discretion’”
(quoting Ramsgate Ct. Townhome Ass’n v. West Chester Borough, 313 F.3d 157, 161 (3d Cir.
2002).
Here, Fitzgerald does not seek leave to file a third amended complaint in his oppositions
to the motions, and also did not seek leave to amend during oral argument before the court on
May 26, 2017. Rather, he requested that to the extent appropriate, the court dismiss his claims
without prejudice so that he may request leave to amend the complaint in the event that
discovery develops facts not presently known to him. Accordingly, the court will not grant
Fitzgerald leave to file a third amended complaint at this time. However, should Fitzgerald
identify a basis to file a third amended complaint, he may file a motion for leave to do so as to
any claim that that the court does not dismiss with prejudice, and the court will consider it in
accordance with the aforementioned guidance.
III.

CONCLUSION

As explained above, the court will grant in part and deny in part the D.A.’s Office
Defendants’ and Lehigh County’s motions to dismiss. The court will grant the motions insofar
as they sought to (1) dismiss the malicious prosecution claim as to District Attorney Martin and
41

A.D.A. Luksa as barred by absolute immunity, and will dismiss it as to Detectives Cruz and Frey
and Lehigh County for failing to sufficiently plead a seizure; (2) dismiss the false arrest and false
imprisonment claims as to District Attorney Martin for failing to plead supervisory liability, and
will dismiss them as to Lehigh County for failing to plead that Detectives Cruz and Frey were
acting pursuant to a Lehigh County policy; (3) dismiss the civil rights conspiracy claims against
District Attorney Martin, A.D.A. Luksa, Detectives Cruz and Frey, and Lehigh County, for
failing to plead racial discrimination and for failing to plead a conspiracy; and (4) dismiss the
failure to train and supervise claim as to Lehigh County for failing to plead that Detectives Cruz
and Frey have a pattern or history of making false arrests, and for failing to plead that a Lehigh
County policymaker knew or should have known that the county’s current training policies
would fail to prevent Fitzgerald’s false arrest. The court will deny the motions to dismiss insofar
as they sought to (1) dismiss the false arrest and false imprisonment claims against Detectives
Cruz and Frey, and (2) dismiss the state law claims because the court lacked supplemental
jurisdiction. Because Fitzgerald has not sought leave to file a third amended complaint, the court
will not grant him leave to do so at this time.
A separate order follows.
BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.

42