Merrick v. Kahley et al

Filing 14

MEMORANDUM (Attachments: # 1 R&R)(eo)

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Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 1 of 30 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA LYNNETTE J. MERRICK, Plaintiff v. POLICE CHIEF WESELY A. KAHLEY, et al., Defendants : : : : : : : : : : CIVIL NO: 1:12-CV-01878 (Judge Jones) (Magistrate Judge Schwab) REPORT AND RECOMMENDATION I. Introduction. 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 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 2 of 30 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. 2 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 3 of 30 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. 3 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 4 of 30 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. 4 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 5 of 30 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. 5 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 6 of 30 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 de-activated. 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 6 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 7 of 30 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 7 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 8 of 30 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 8 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 9 of 30 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 9 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 10 of 30 took an active role as judge and jury concerning her employer and her future employment. 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 10 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 11 of 30 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 11 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 12 of 30 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 facts.” Id. 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). 12 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 13 of 30 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 relief.’ 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 13 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 14 of 30 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. IV. Discussion. A. Because the Defendants Are Not Federal Agencies, the Complaint Fails to State a Claim Under the Privacy Act Upon Which Relief Can Be Granted. 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 14 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 15 of 30 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 agencies. 1 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 documents. 1 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. 15 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 16 of 30 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). 16 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 17 of 30 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 565. 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, 17 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 18 of 30 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 18 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 19 of 30 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. 19 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 20 of 30 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.”). 20 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 21 of 30 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 21 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 22 of 30 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 2 22 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 23 of 30 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. 23 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). 24 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 25 Case 1:12-cv-01878-JEJ Document 13 Filed 05/10/13 Page 26 of 30 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 26 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. 27 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. 1995)). 28 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. V. Recommendations. 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 29 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 30

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