Merrick v. Kahley et al
MEMORANDUM (Attachments: # 1 R&R)(eo)
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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LYNNETTE J. MERRICK,
POLICE CHIEF WESELY A.
KAHLEY, et al.,
CIVIL NO: 1:12-CV-01878
(Magistrate Judge Schwab)
REPORT AND RECOMMENDATION
In July of 2011, pro se plaintiff, Lynnette J. Merrick, was arrested and
charged with various crimes relating to thefts from residents at an assisted-living
facility where she worked part time. She alleges that the arresting officers
disclosed her arrest and the charges against her to her full-time employer, the
Social Security Administration, and as result of that disclosure she was suspended
without pay for more than five months. She claims that by disclosing the details of
her arrest, the defendants violated the Privacy Act and her right to privacy under
the United States Constitution. She also claims that some of the defendants
maliciously prosecuted her and that other of the defendants conducted an
inadequate internal investigation of the officers’ actions. She further claims that
the defendants violated state law by defaming her and by interfering with her
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business relationship with her employer. The defendants have filed a motion to
dismiss the complaint, and, for the reasons set forth below, we recommend that the
motion to dismiss be granted.
II. Background and Procedural History.
Merrick, who is proceeding pro se, began this action in the Court of
Common Pleas of York County, Pennsylvania. The defendants, Police Chief
Wesley A. Kahley (“Kahley”), Police Captain Ron Camacho (“Camacho”), Police
Officers Chad R. Howell (“Howell”) and Jonathan Hatterer (“Hatterer”), and the
City of York, removed the case to this court pursuant to 28 U.S.C. §§ 1441 on the
basis that this court has federal question jurisdiction under 28 U.S.C. § 1331.
Merrick alleges the following facts in her complaint. Merrick works as a
legal assistant for the Social Security Administration (SSA), Office of Disability
Adjudication and Review. Merrick also worked part time at Kelly Manor, an
assisted-living facility. On July 12, 2011, defendants Howell and Hatterer arrested
her. These arresting officers provided a copy of the police report and other
documents, including the criminal complaint against Merrick and supporting
affidavits describing her arrest and the charges against her, to the SSA.
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Merrick has attached to her complaint the documents that were provided to
the SSA. See Doc. 1-1 at 9-23. Those documents include a six-page incident
report, the initial factual narrative portion of which was written by defendant
Howell. The report states that, on June 27, 2011, defendants Howell and Hatterer
were dispatched to take a theft report concerning multiple residents of Kelly
Manor. Defendant Howell spoke with the facility manager who advised that there
had been two recent thefts concerning two of the residents. The report recites that
Howell and Hatterer met with the two residents, Jean Frederic Bressler
(“Bressler”) and Millard E. Myers (“Myers”).
According to the report, Bressler informed Howell and Hatterer that on June
22, 2001, he found that $100 was missing from his wallet, which he had left
unattended on a dresser in his bedroom, to which no one other than staff at the
facility had access. According to the report, Myers informed Howell and Hatterer
that his Discover credit card had been taken from his wallet, that a pin number was
established without his knowledge, and that two separate unauthorized cash
advances totaling $1,000 had been taken using the card. Myers further advised that
he contacted Discover and cancelled the card. According to Myers, on June 25,
2011, he left his wallet on the corner of his bed when he went to dinner, and when
he returned from dinner he could not find his wallet. He found the wallet the next
day in pocket in a robe, but he states that he did not place the wallet there.
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According to the report, account records show that the cash advances were
taken from a particular Rutters’ store on June 25, 2011 and June 27, 2011. The
report further states that, on May 6, 2011, a theft of $10,000 was reported to
Officer Blymier, that the “person of interest” as to that incident went on elective
surgery the next day, and that the schedule of the “person of interest” coincides
with the additional thefts. The report states that according to the manager of the
facility, this person was working at the times of the thefts, had been assigned to the
floors involved, had access to all of the residents’ rooms, and also works for the
Social Security Administration. The report continues that there were no reported
thefts during the time this person was on leave for the elective surgery and that it
wasn’t until she returned that the thefts began again.
In a supplemental narrative portion of the report, Officer Monte states that,
on June 29, 2011, he met with Julianne Devanay, the facility manager of Kelly
Manor, and Janette Kessel, who also apparently works at Kelly Manor, and that he
was informed that Donna Geesey, who is Myers’ caregiver, called the credit card
company and obtained the phone number that had activated the pin on the card
stolen from Myers. Kessel linked that phone number to records of employees of
Kelly Manor and found that it belonged to Merrick.
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The report contains a further supplement stating that, on July 7, 2011,
defendant Howell, after contacting the District Attorney’s Office, obtained an
arrest warrant for Merrick. The report also states that video surveillance was
obtained from Rutters. Another supplement to the report, also written by
defendant Howell, details the arrest of Merrick on July 12, 2011. According to the
report, defendants Howell and Hatterer set up surveillance at a particular spot to
look for Merrick, who they thought would be in a specific vehicle. The officers
spotted the vehicle, which was being driven by Joshua Upchurch (“Upchurch”) and
in which Merrick was a passenger. According to the report, the officers recognized
Upchurch as the “other offender seen in the video surveillance at Rutter’s.” Doc. 11 at 14. Upchurch and Merrick were arrested, and Upchurch informed the officers
that their two-year-old child was left unattended at home while he drove Merrick to
the bus stop. The report states that after Upchurch was advised of his Miranda
rights, he admitted using the Discover card stolen from Myers and he stated that he
and Merrick had been struggling financially and the money was going toward bills.
The report also states that, after Merrick was advised of her Miranda rights, she
stated that she was guilty of taking Myers’ credit card, that her house was close to
being foreclosed on, that she was desperate for money, and that both $500
withdraws from the ATM machine were put toward her mortgage.
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The documents provided to Merrick’s employer, the SSA, also included
arrest reports for Merrick and Upchurch, and a criminal complaint against Merrick,
including an affidavit of probable cause which states:
On June 15, 2011, the Defendant called Discover Credit Card
Company, provided her own name, and acquired a pin # using a phone
number registered to her, so that cash could be withdrawn from
victim[’]s account. This was done without victim’s knowledge and
approval. Assisted living records show that the Defendant signed the
log placing her in Victim’s room during time of theft, when the
Victim states he was “tucked in” for bed. The Defendant’s vehicle is
seen acquiring $58.96 of fuel on surveillance using the stolen credit
card. This same card was also used to access $500 cash from an ATM
machine on June 25, 2011 and June 26, 2011. A total of $1,056.95
was illegitimately charged to victim’s account prior to account being
Doc. 1-1 at 19.
The documents provided to the SSA also included a document titled
“Confidential Information Form Criminal Complaint,” which contains Merrick’s
name, social security number, and a list of witnesses.
Merrick alleges that her employer was not aware of her arrest prior to the
disclosure by defendants Howell and Hatterer. Merrick’s employer gave her a
copy of the arrest report, which showed that it was printed from defendant
Hatterer’s computer and faxed from a line belonging to York City Police
Department. Merrick alleges that several months after her arrest, the officers
continued to communicate with her employer through emails advising her
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employer of their opinion of the outcome of the criminal proceedings thereby
sabotaging her relationship with her employer. According to Merrick, they
provided her employer with only incriminating evidence and not all of the facts
that they possessed. For example, she alleges that the officers withheld
information about the possibility of another suspect. According to Merrick, despite
the fact that the statements in the police report could not be substantiated by an
eyewitness or any physical evidence, her employer suspended her indefinitely
without pay, causing her to suffer extreme financial hardship. Merrick alleges that
her direct supervisor and other members of management told her that based on the
police report they believed that she had committed a crime for which imprisonment
may be imposed, and, for this reason, on December 28, 2011, she was suspended
indefinitely without pay.
In early May of 2012, the United States Merit Systems Protection Board
convened a hearing to determine if the SSA had reasonable cause to suspend
Merrick. During this hearing, employees of the SSA testified that the police report
provided by the York City Police Department was pivotal to the SSA’s
determination and that the SSA was convinced by the officers that Merrick had
committed a crime for which a sentence could be imposed. In fact, Merrick alleges
that, according to the SSA, defendant Howell was instrumental in disclosing
pertinent information that was crucial in determining the status of the charges and
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appropriate disciplinary procedures. An email regarding defendant Howell’s role
was submitted into evidence at the Merit Board hearing. That email, dated August
2, 2011, from Karen Weaver to Howard Goldberg, provides among other things
that: Weaver spoke to defendant Howell, that Merrick is facing four felony charges
and a couple of misdemeanor charges for identity theft based on her using social
security numbers and stolen credit cards of residents in a nursing home where she
was working part time, that the police do not know how she obtained the social
security numbers (i.e., whether she obtained them through her employment with
the nursing home or through her employment with the SSA), that defendant
Howell and his partner were in touch with an OIG (Office of Inspector General)
agent during their investigation, that Merrick made a full confession but that she
has hired a defense attorney, that a preliminary hearing has been set but that
Howell expects it to be waived and a plea deal worked out, that Merrick will most
likely get ARD if the DA, police, and judge all agree, that Merrick can plead not
guilty and if she does and is found guilty will most likely do jail time, and that
Howell is very confident that the evidence that he has is solid and that if there is a
trial Merrick will lose. Doc. 1-1 at 31.
In November of 2011, Merrick filed a citizen complaint report with the York
City Police Department against defendants Howell and Hatterer based on their
disclosure of her arrest to her employer. See Doc. 1-1 at 36-38. Inspector Dana
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Ward investigated her complaint, and Ward forwarded his findings to defendant
Kahley, the Chief of Police for York City. Kahley, in turn, forwarded Merrick’s
complaint to defendant Camacho, who, on February 9, 2012, informed Merrick
that the Internal Affairs Division completed its investigation and exonerated the
officers. See Doc. 1-1 at 43.
Merrick alleges that, on April 19, 2012, Judge Renn of the York County
Court of Common Pleas dismissed all charges against her, and, on June 4, 2012,
the SSA administration returned her to work. She alleges that the defendants did
not have probable cause or reasonable grounds to support the charges against her
and that they initiated and continued the case with an improper purpose. She
alleges that defendants Howell and Hatterer did not have an eyewitness to the
thefts, that they did not have a complaint by the victim implicating her, and that
they had no physical evidence placing the reported stolen credit card in her
possession. She alleges that the officers made false statements in the police report
and to her employer. According to Merrick, the surveillance footage that the
officers had of a person using the stolen credit card to get gas does not show
Merrick, a tag number, a VIN number, or any identifiable evidence to indicate
ownership with any certainty. She asserts that the officers did not treat her fairly
and with respect and that they denied her the right to be presumed innocent until
proven guilty and to be judged by a jury of her peers. She alleges that the officers
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took an active role as judge and jury concerning her employer and her future
Merrick alleges that the Chief of Police is an authorized policy maker and is
therefore liable for the proper training of police officers in York City. She alleges
that defendant Camacho failed to properly supervise and discipline officers and
conducted an improper and negligent investigation that resulted in an unfair ruling
in favor of the officers. She contends that the City of York is vicariously liable for
the officer’s negligence and malicious prosecution of her because it failed to train
its officers in proper investigative techniques and procedures. Merrick seeks
compensatory and punitive damages.
The defendants have filed a motion to dismiss the complaint, which has been
fully briefed, and is addressed in this Report and Recommendation.
III. Motion to Dismiss and Pleading Standards.
In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” When reviewing a
motion to dismiss, “[w]e must accept all factual allegations in the complaint as
true, construe the complaint in the light favorable to the plaintiff, and ultimately
determine whether plaintiff may be entitled to relief under any reasonable reading
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of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In
making that determination, we “consider only the complaint, exhibits attached to
the complaint, matters of public record, as well as undisputedly authentic
documents if the [plaintiff’s] claims are based upon these documents.” Id. at 230.
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the
pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch.
Dist., 842 F. Supp. 2d 762, 769-70 (M.D. Pa. 2012). With respect to the
benchmark standard for legal sufficiency of a complaint, the United States Court of
Appeals for the Third Circuit has aptly noted the evolving standards governing
pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of
jurisprudence in recent years. Beginning with the Supreme Court's
opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007), continuing with our opinion in Phillips
[v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008)], and
culminating recently with the Supreme Court's decision in Ashcroft v.
Iqbal 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), pleading
standards have seemingly shifted from simple notice pleading to a
more heightened form of pleading, requiring a plaintiff to plead more
than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209–10 (3d Cir.2009).
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
‘short and plain statement of the claim showing that the pleader is entitled to
relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The statement required by
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Rule 8(a)(2) must give the defendant fair notice of what the plaintiff’s claim is and
of the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007).
Detailed factual allegations are not required, but more is required than labels,
conclusions, and a formulaic recitation of the elements of a cause of action. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a
complaint must do more than allege the plaintiff’s entitlement to relief.” Fowler,
supra, 578 F.3d at 211. “A complaint has to “show” such an entitlement with its
In considering whether a complaint fails to state a claim upon which relief
can be granted, the court must accept as true all well-pleaded factual allegations in
the complaint, and all reasonable inferences that can be drawn from the complaint
are to be construed in the light most favorable to the plaintiff. Jordan v. Fox
Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir.1994). A court,
however, “need not credit a complaint’s bald assertions or legal conclusions when
deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902,
906 (3d Cir.1997). Additionally, a court need not “assume that a . . . plaintiff can
prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of
Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
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In conducting a review of the adequacy of a complaint, the Supreme Court
has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more
than conclusions are not entitled to the assumption of truth. While
legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.
Iqbal, supra, 556 U.S. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain
more than mere legal labels and conclusions. Rather, it must recite factual
allegations sufficient to raise the plaintiff's claimed right to relief beyond the level
of mere speculation. In practice, consideration of the legal sufficiency of a
complaint entails a three-step analysis:
First, the court must ‘tak[e] note of the elements a plaintiff must
plead to state a claim.’ Second, the court should identify allegations
that, ‘because they are no more than conclusions, are not entitled to
the assumption of truth.’ 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
Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir.2010)(quoting Iqbal, supra,
556 U.S. at 675 & 679).
A complaint filed by a pro se litigant is to be liberally construed and
A>however inartfully pleaded, must be held to less stringent standards than formal
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pleadings drafted by lawyers.=@ Erickson, supra, 551 U.S. at 94 (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, Apro se litigants still must allege
sufficient facts in their complaints to support a claim.@ Mala v. Crown Bay Marina,
Inc., 704 F.3d 239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must
contain more than mere legal labels and conclusions. Rather, a pro se complaint
must recite factual allegations that are sufficient to raise the plaintiff=s claimed
right to relief beyond the level of mere speculation, set forth in a Ashort and plain@
statement of a cause of action.
A. Because the Defendants Are Not Federal Agencies, the Complaint
Fails to State a Claim Under the Privacy Act Upon Which Relief Can Be
First, the complaint fails to state a claim under the Privacy Act, which
provides, in pertinent part, that “[n]o agency shall disclose any record which is
contained in a system of records by any means of communication to any person, or
to another agency, except pursuant to a written request by, or with the prior written
consent of, the individual to whom the record pertains, unless disclosure of the
record” falls within certain exemptions. 5 U.S.C. § 552a(b). For purposes of that
section, an agency is defined under the Privacy Act as “each authority of the
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Government of the United States” with certain exceptions. 5 U.S.C. §§ 552a(a),
552(f), § 551(1). That section of the Privacy Act, therefore, only applies to federal
government agencies. See N'Jai v. Pittsburgh Bd. of Pub. Educ., 487 F. App'x 735,
737 (3d Cir. 2012). Accordingly, the complaint fails to state a Privacy Act claim
upon which relief can be granted against the defendants, who are not federal
B. Because Merrick Does Not Have a Constitutionally Protected Privacy
Interest in Nondisclosure of the Police Report and Related Documents,
the Complaint Fails to State a Constitutional Privacy Claim Upon
Which Relief Can Be Granted.
Additionally, the complaint fails to state a constitutional claim upon which
relief can be granted based on the disclosure of Merrick’s arrest report and related
We note that Section 7 of the Privacy Act, which is not codified but is set
forth as a note following 5 U.S.C. § 552a, provides that “[i]t shall be unlawful for
any Federal, State or local government agency to deny to any individual any right,
benefit, or privilege provided by law because of such individual’s refusal to
disclose his social security account number.” “By its express terms, § 7 applies to
federal, state, and local agencies.” Gonzalez v. Vill. of W. Milwaukee, 671 F.3d
649, 662 (7th Cir. 2012). Because this case does not deal with a denial based on
the refusal of an individual to disclose his or her social security number, Section 7
does not apply.
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Although the United States Constitution does not explicitly mention a right
to privacy, the Supreme Court has “found certain ‘zones of privacy’ in the
amendments to the Constitution.” C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159,
178 (3d Cir. 2005)(quoting Roe v. Wade, 410 U.S. 113, 152 (1973)). These zones
protect two categories of privacy interests: “[t]he first category is a right to
confidentiality, and the second category is a right to autonomy.” Malleus v.
George, 641 F.3d 560, 564 (3d Cir. 2011). The first category “protects against
disclosure of certain personal information, including: information containing
specific ‘details of one’s personal life,’ information ‘which the individual is
ordinarily entitled to retain within the private enclave where he may lead a private
life,’ and information containing ‘intimate facts of a personal nature.’” Id. (quoting
Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000) and United States v.
Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980)). The second
category “protects ‘the interest in independence in making certain kinds of
important decisions,’ and this category “has not been extended beyond ‘matters
relating to marriage, procreation, contraception, family relationships, and child
rearing and education.’” Id. (quoting C.N, supra, 430 F.3d at 178 and
Westinghouse, supra, 638 F.2d at 577).
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Only the first category of privacy interest—confidentiality in personal
information—is implicated in this case. “In determining whether information is
entitled to privacy protection, [the Third Circuit has] looked at whether it is within
an individual’s reasonable expectations of confidentiality.” Fraternal Order of
Police v. City of Philadelphia, 812 F.2d 105, 112 (3d Cir. 1987). “The more
intimate or personal the information, the more justified is the expectation that it
will not be subject to public scrutiny.” Id. at 112-13. “[T]he constitutional right of
privacy, which courts have been ‘reluctant to expand,’ shields from public scrutiny
only that information which involves ‘deeply rooted notions of fundamental
personal interests derived from the Constitution.’” Nunez v. Pachman, 578 F.3d
228, 232 (3d Cir. 2009)(quoting Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996)
and Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.1986)). “In this respect, the
federal right of privacy is significantly narrower than the right of privacy protected
by state tort law.” Id. While not necessarily exhaustive, the Third Circuit has
found the following types of information to be protected: sexual information,
medical information, and some financial information. Malleus, supra, 641 F.3d at
It is well-settled, however, “that criminal records, including police reports,
indictments, guilty verdicts, and guilty pleas, are inherently public—not private—
documents and are thus beyond the purview of the Due Process Clause.” Nunez,
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supra, 578 F.3d at 233. More than 35 years ago, the Supreme Court rejected a
claim that the fact of an arrest is protected by the constitutional right to privacy. In
Paul v. Davis, 424 U.S. 693, 695-96 (1976), Davis had been arrested for
shoplifting and the charge dismissed, but his name and photo nevertheless
appeared on a police flyer of known shoplifters. Davis claimed, among other
things, that his inclusion on the flyer was a violation of his right to privacy. Id. at
712. After setting forth its line of decisions on the right of privacy, the Court
rejected that claim reasoning as follows:
[Davis’s] claim is far afield from this line of decisions. He
claims constitutional protection against the disclosure of the fact of his
arrest on a shoplifting charge. His claim is based, not upon any
challenge to the State’s ability to restrict his freedom of action in a
sphere contended to be “private,” but instead on a claim that the State
may not publicize a record of an official act such as an arrest. None
of our substantive privacy decisions hold this or anything like this,
and we decline to enlarge them in this manner.
Id. at 713. In the years following Paul, the Supreme Court expanded its privacy
holdings. See e.g. Whalen v. Roe, 429 U.S. 589, 599 (1977)(recognizing that the
right to privacy extends to both the interest in avoiding disclosure of certain
personal matters as well as the interest in independence in making certain kinds of
important decisions). Nevertheless, the Third Circuit has repeatedly held that
arrests records and related documents are not covered by the constitutional right to
privacy. See Fraternal Order of Police, supra,, 812 F.2d at 117 (holding that arrest
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records are not entitled to privacy protection “because arrests are by definition
public, and because it is unlikely that anyone could have a reasonable expectation
that an arrest will remain private information”); Scheetz v. The Morning Call, 946
F.2d 202, 207 (3d Cir.1991) (holding that there is no privacy interest in a police
report documenting an incident of domestic violence even though the report never
led to formal charges); Paul P. v. Verniero, 170 F.3d 396, 403 (3d Cir.1999)
(stating that District Court’s opinion that disclosure of sex offender status and
other information “is in line with other cases in this court and elsewhere holding
specifically that arrest records and related information are not protected by a right
to privacy”); Nunez, supra ,578 F.3d at 233 (holding that there is no privacy
interest under the United States Constitution in an expunged criminal record even
if the state recognizes such a privacy interest under its law).
Although Merrick may have hoped and had a subjective expectation that her
arrest would not be disclosed to her employer, the type of documents that Merrick
alleges the defendants disclosed—police reports and related documents—are not
the type of documents protected by the constitutional right to privacy.
Accordingly, the complaint fails to state a constitutional privacy claim upon which
relief can be granted.
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C. The Complaint Also Fails to State a 42 U.S.C. § 1983 Malicious
Prosecution Claim Upon Which Relief Can Be Granted Because the
Criminal Proceedings Did Not Terminate in Merrick’s Favor.
In addition to claiming that the defendants improperly disclosed her arrest to
her employer, Merrick claims that the defendants maliciously prosecuted her.
“To prevail on a malicious prosecution claim under section 1983, a plaintiff
must show that: (1) the defendant initiated a criminal proceeding; (2) the criminal
proceeding ended in the plaintiff’s favor; (3) the proceeding was initiated without
probable cause; (4) the defendants 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.”
McKenna v. Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009).
The defendants contend that Merrick cannot meet the second element of a
malicious prosecution claim because the criminal proceedings against her did not
terminate in her favor. To satisfy the favorable-termination element, the criminal
case must have been disposed of in a way that indicates the innocence of Merrick.
Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009) (“[A] malicious prosecution
claim cannot be predicated on an underlying criminal proceeding which terminated
in a manner not indicative of the innocence of the accused.”).
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Merrick, on the other hand, contends that the criminal charges against her
were dismissed and that, therefore, the criminal proceedings terminated in her
favor. For support, she cites to the docket in her criminal case, which docket she
has attached as an exhibit to her complaint. That docket, however, states “Penalty
Assessed” and “Penalty Satisfied” and shows that the charges were dismissed
pursuant to Pa.R.Crim.P. 586. See Doc. 1-1at 26 & 29. That Rule, which is titled
“Court Dismissal Upon Satisfaction or Agreement,” provides:
When a defendant is charged with an offense which is not alleged to
have been committed by force or violence or threat thereof, the court
may order the case to be dismissed upon motion and a showing that:
(1) the public interest will not be adversely affected; and
(2) the attorney for the Commonwealth consents to the dismissal; and
(3) satisfaction has been made to the aggrieved person or there is an
agreement that satisfaction will be made to the aggrieved person; and
(4) there is an agreement as to who shall pay the costs.
Pa. R. Crim. P 586. The docket further shows that Merrick paid $795.00 in costs.
See Doc. 1-1 at 29 & 30.
Given that the docket shows that the criminal charges were dismissed
pursuant to Pa.R.Crim.P. 586 after a penalty was assessed against Merrick and
Merrick satisfied that penalty, the dismissal in this case is not indicative of
Merrick’s innocence, and, thus, it does not satisfy the favorable-termination
element of malicious prosecution claim. See Hilfirty v. Shipman, 91 F.3d 573, 580
(3d Cir.1996) (“[A] prosecutor’s decision to withdraw criminal charges pursuant to
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a compromise with the accused is not considered to be a termination sufficiently
favorable to support a malicious prosecution claim.”); Alianell v. Hoffman, 317 Pa.
148, 176 A. 207, 207–08 (1935) (holding that a malicious prosecution claim could
not be maintained by a defendant who settled criminal charges against him by
paying a fine and returning goods, even though the prosecutor withdrew the
charges pursuant to the compromise); Restatement (Second) of Torts § 660
(providing that a “termination of criminal proceedings in favor of the accused other
than by acquittal is not a sufficient termination to meet the requirements of a cause
of action for malicious prosecution if . . . the charge is withdrawn or the
prosecution abandoned pursuant to an agreement of compromise with the
accused.”); Restatement (Second) of Torts § 660 cmt.c. (“Although the accused by
his acceptance of a compromise does not admit his guilt, the fact of compromise
indicates that the question of his guilt or innocence is left open. Having bought
peace the accused may not thereafter assert that the proceedings have terminated in
his favor.”). Accordingly, the complaint fails to state a 42 U.S.C. § 1983 malicious
prosecution claim upon which relief can be granted.2
The defendants also contend that the complaint fails to state a malicious
prosecution claim upon which relief can be granted because they had probable
cause to charge Merrick. Given our conclusion that Merrick cannot meet the
favorable-termination requirement, we need not address the probable-cause
requirement. We note, however, that although the police reports attached to the
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D. The Complaint Fails to State a 42 U.S.C. § 1983 Claim Upon Which
Relief Can Be Granted Against Defendants Camacho, Kahley, and the
City of York.
Merrick seeks to hold defendants Camacho, Kahley, and the City of York
liable for the actions taken by defendants Howell and Hatterer.
“Liability may not be imposed under § 1983 on the principle of respondeat
superior.” Hetzel v. Swartz, 909 F.Supp. 261, 264 (M.D. Pa. 1995). “Liability
based on respondeat superior arises ‘solely on the basis of the existence of an
employer-employee relationship,’ regardless of whether the employer had any part
in causing harm.” Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.
2010)(quoting Monell v. Dep’t of Soc. Services of New York, 436 U.S. 658, 692
(1978)). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009).
There are two viable theories of supervisory liability. Santiago, supra, 129
F.3d at 129 n.5. Under the first theory, a supervisor can be liable if he or she
established and maintained a policy, practice, or custom which directly caused the
complaint suggest that there was probable cause, Merrick asserts that certain
statements in those reports are false.
Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 24 of 30
constitutional harm. Id. Under the second theory, a supervisor can be liable if he
or she participated in violating the plaintiff’s rights, directed others to violate the
plaintiff’s rights, or as the person in charge had knowledge of and acquiesced in his
or her subordinates’ violations of the plaintiff’s rights. Id. An allegation that what
happened was ordered by the supervisor is a conclusory allegation that is not
entitled to an assumption of truth. Id. at 133.
Merrick alleges that defendant Camacho failed to properly supervise and
discipline the officers and that defendant Kahley is liable based on the training of
the officers. In addition to being conclusory, these allegations fail because, as
discussed above, the disclosure of the arrest report and related documents did not
violate Merrick’s constitutional rights. Therefore, any failure to train on the part of
defendants Camacho and Kahley in this regard also fails. See Crawford v. Lappin,
446 F.App’x 413, 416 (3d Cir. 2011)(stating that “the absence of an underlying
constitutional violation precludes any supervisory liability on a “knowledge or
acquiescence” or “failure to train” theory”); Tri Thanh Nguyen v. Franklin Cnty.,
3:10-CV-1866, 2012 WL 1378679 (M.D. Pa. Apr. 20, 2012)(“Since there was no
unconstitutional conduct, supervisory liability also fails on a policy or practice
approach.”), aff’d , 12-2559, 2013 WL 323249 (3d Cir. Jan. 29, 2013).
Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 25 of 30
Merrick also claims that defendant Camacho conducted an improper and
negligent investigation that resulted in an unfair ruling in favor of the officers. As
discussed above, however, the disclosure of the arrest report and related
documents, which was the subject of Merrick’s complaint, did not violate
Merrick’s constitutional rights, and so the claims against Camacho based on his
investigation of that disclosure necessarily fail. Moreover, Merrick’s claim
regarding the investigation rests on a fatally flawed premise, i.e., that she has a
constitutional right or interest in the discipline or investigation of others. A private
citizen, however, “lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
See also Town of Castle Rock v. Gonzalez, 545 U.S. 748, 768 (2005)(“[T]he
benefit that a third party may receive from having someone else arrested for a
crime generally does not trigger protections under the Due Process Clause, neither
in its procedural nor in its ‘substantive’ manifestations.”). And “[t]here is no
statutory or common law right, much less a constitutional right, to an
investigation.” Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007); See also
Fuchs v. Mercer Cnty., 260 F.App’x 472, 475 (3d Cir. 2008). Merrick, therefore,
cannot bring a claim against defendant Camacho for the alleged inadequate
investigation of her complaint. It is not clear if Merrick is also presenting a claim
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against defendant Kahley based on the investigation, but, if she is, such a claim
fails for the same reasons.
Merrick also seeks to hold the City of York liable for the actions of the
officers on a failure-to-train theory. A municipality, such as the City of York, can
be liable under 42 U.S.C. § 1983 “if the governmental body itself ‘subjects’ a
person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such
deprivation.” Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011)(quoting 42
U.S.C. § 1983). A municipality, however, cannot be held liable for the
unconstitutional acts of its employees on a theory of respondeat superior. Monell
v. Department of Social Servs., 436 U.S. 658, 691 (1978). To impose liability on a
municipality under Section 1983, a plaintiff must demonstrate that an official
municipal policy caused his injury. Connick, supra, 131 S.Ct. at 1359. “Official
municipal policy includes the decisions of a government’s lawmakers, the acts of
its policymaking officials, and practices so persistent and widespread as to
practically have the force of law.” Id.
In limited circumstances, a municipality’s failure to train its employees
about their duty to avoid violating citizens’ rights may rise to the level of a
municipal policy. Connick, supra, 131 S.Ct. at 1359. “A municipality’s culpability
for a deprivation of rights is at its most tenuous [however] where a claim turns on a
Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 27 of 30
failure to train.” Id. A municipality’s failure to train must amount to deliberate
indifference to the rights of persons with whom the municipal employees come
into contact. Id. “‘Deliberate indifference’ is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious
consequence of his action.’” Id. at 1360 (quoting Board of Comm’rs of Bryan Cnty.
v. Brown, 520 U.S. 397, 410 (1997)). “A pattern of similar constitutional
violations by untrained employees is ‘ordinarily necessary’ to demonstrate
deliberate indifference for purposes of failure to train.” Id. (quoting Bryan Cnty.,
supra, 520 U.S. at 409
Merrick does not allege facts from which it can reasonably be inferred that a
policy or custom of the City of York caused a violation of her rights Moreover,
absent an underlying constitutional violation, the City of York itself may not be
held liable under § 1983. See Mills v. City of Harrisburg, 350 F. App'x 770, 773
(3d Cir. 2009); Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 (3d
Cir.2003). As we have determined above that the complaint fails to state a claim
upon which relief can be granted against the officers allegedly responsible for
arresting Merrick and disclosing her arrest, there can be no liability for the City of
York on a theory of failing to train or supervise.
Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 28 of 30
E. The Court Should Decline to Exercise Supplemental Jurisdiction
Over Merrick’s State Law Claims.
Having determined that the complaint fails to state a federal claim upon
which relief can be granted, the remaining claims are Merrick’s state law claims
over which this court has supplemental jurisdiction.
Whether to exercise supplemental jurisdiction is within the discretion of the
court. 28 U.S.C. § 1367(c)(3) provides that district courts may decline to exercise
supplemental jurisdiction over a state law claim if the district court has dismissed
all claims over which it has original jurisdiction. When deciding whether to
exercise supplemental jurisdiction, “a federal court should consider and weigh in
each case, and at every stage of the litigation, the values of judicial economy,
convenience, fairness, and comity.” City of Chicago v. Int’l Coll. of Surgeons, 522
U.S. 156, 173 (1997)(quoting Carnegie-Mellon Univ. v. Cahill, 484 U.S. 343, 350
(1988)). The Third Circuit has held that “where the claim over which the district
court has original jurisdiction is 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.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir.
2000)(quoting Borough of West Miflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.
Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 29 of 30
There is nothing unique about this case such that considerations of judicial
economy, convenience, and fairness provide an affirmative justification for
exercising supplemental jurisdiction after the court disposes of the federal claims.
Accordingly, we recommend that the court decline to exercise supplemental
jurisdiction over the state law claims.
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the
defendants’ motion (doc. 4) to dismiss the complaint be granted.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within
fourteen (14) days after being served with a copy thereof. Such party
shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the
portions of the proposed findings, recommendations or report to
which objection is made and the basis for such objections. The
briefing requirements set forth in Local Rule 72.2 shall apply. A
judge shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.
The judge, however, need conduct a new hearing only in his or her
discretion or where required by law, and may consider the record
developed before the magistrate judge, making his or her own
determination on the basis of that record. The judge may also receive
Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 30 of 30
further evidence, recall witnesses or recommit the matter to the
magistrate judge with instructions.
Submitted this 10th day of May, 2013.
S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge
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