Tereo v. Smuck et al

Filing 31

MEMORANDUM (Order to follow as separate docket entry) re: 11 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM giled by Darryl L. Smuck, II, Southern Regional Police Department. (See memo for complete details.)Signed by Chief Judge Christopher C. Conner on 5/15/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ERIC D. TEREO,
Plaintiff
v.
DARRYL L. SMUCK, II and
SOUTHERN REGIONAL POLICE
DEPARTMENT,
Defendants

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CIVIL ACTION NO. 1:16-CV-1436
(Chief Judge Conner)

MEMORANDUM
Plaintiff Eric D. Tereo (“Tereo”) filed the above-captioned action asserting
malicious prosecution claims pursuant to 42 U.S.C. § 1983 and state law. Before the
court is a motion (Doc. 11) to dismiss filed by defendants Officer Darryl L. Smuck, II
(“Officer Smuck”) and the Southern Regional Police Department. The court will
grant in part and deny in part the pending motion.
I.

Factual Background & Procedural History
On November 19, 2013, Tereo visited a Sunoco gas station and convenience

store located at 62 North Main Street in Stewartstown, York County, Pennsylvania.
(Doc. 1 ¶ 7). Upon exiting the store and returning to his vehicle, Tereo witnessed a
dispute between a man and woman. (Id. ¶¶ 10-12). Tereo observed the man, later
identified as seventy-six year old Carl E. Johnson, Jr. (“Johnson”), reaching into the
woman‟s vehicle. (Id. ¶¶ 8, 12). The woman drove away from Johnson as a Sunoco
employee, Tammy Reynolds (“Reynolds”), exited the store. (Id. ¶¶ 14-15). According
to the complaint, Johnson then advanced toward Reynolds, causing Tereo to fear for

Reynolds‟ safety. (Id. ¶¶ 16-17). In response, Tereo ran to Reynolds and allegedly
placed himself in a protective position between Reynolds and Johnson. (Id. ¶¶ 1819). Tereo purportedly put his hands in the air and instructed Johnson to leave.
(Id. ¶ 20). Johnson ignored Tereo‟s request, attempted to step around Tereo, and
extended his arms towards Reynolds. (Id. ¶¶ 21-23). Tereo reacted to this threat by
pushing Johnson away. (Id. ¶ 24). The push caused Johnson to fall backwards off of
a curb. (Id.)
After his fall, Johnson allegedly yelled that he was going to summon his son
to fight Tereo. (Id. ¶ 25). Johnson then unsuccessfully sought to have an employee
of a neighboring business, Leffler Fuel, call the police. (Id. ¶¶ 26-27). According to
the allegata, immediately prior to the subject altercation, Reynolds told Johnson to
leave the store and never return. (Id. ¶ 28). Moreover, Johnson allegedly had a
history of harassing female employees and customers of Sunoco and was previously
told not to return there. (Id. ¶¶ 29-30). Johnson claimed that his fall resulted in
physical injuries. (Id. ¶ 31).
Johnson reported the confrontation to Officer James Bowser (“Officer
Bowser”) of the Stewartstown Police Department, who conducted an initial
investigation. (Id. ¶ 32). Officer Bowser reviewed surveillance footage of the
incident and interviewed several witnesses. (See id. ¶ 78). The surveillance footage
depicted Johnson as the aggressor. (See id.) Two eyewitnesses also described
Johnson as the aggressor and told Officer Bowser that Tereo acted in self-defense
and in defense of Reynolds. (See id.) A third witness informed Officer Bowser of
Johnson‟s past transgressions at Sunoco. (See id.)
2

The Stewartstown Police Department closed at the end of 2013, at which
time the borough of Stewartstown contracted with Southern Regional Police
Department for law enforcement services. (Id. ¶¶ 33-34). On January 18, 2014,
Johnson‟s wife reported the incident to Officer Smuck of the Southern Regional
Police Department. (Id. ¶ 35). Officer Smuck reviewed Officer Bowser‟s notes, an
officer‟s log, surveillance photos, Johnson‟s written statement, and Johnson‟s
medical records, but was unable to locate or obtain the surveillance footage
examined by Officer Bowser. (Id. ¶¶ 36, 38-39). Officer Smuck also interviewed
Johnson and his wife. (Id. ¶ 37).
Officer Smuck and Southern Regional Police Department released a
surveillance photo of Tereo and identified him as a person of interest. (Id. ¶¶ 41-42).
Tereo was in Delaware at the time and his friends in Pennsylvania informed him
that local television news outlets were reporting on the incident. (Id. ¶ 43). Media
releases stated that Tereo had struck and spit on an elderly man. (Id. ¶ 44). Officer
Smuck received information indicating that Tereo was the man in the photo. (Id.
¶ 45). Johnson identified Tereo in a photo lineup. (Id. ¶ 46).
Thereafter, Officer Smuck filed a criminal complaint charging Tereo with
state law crimes of simple assault, disorderly conduct, and physical harassment. (Id.
¶ 47). The affidavit of probable cause attached to the criminal complaint described
Officer Smuck‟s findings as follows:
On 11/19/2013 at 1505 hours Officer James Bowser of the
Stewartstown Police Department was dispatched to the
Sunoco Gas Station located at 62 N. Main St. in
Stewartstown Borough for an assault.
3

On 01/18/2014 I met with the victim Carl Johnson and his
wife at their residence. Carl Johnson advised the
following: He stated that he was at the Sunoco filling his
vehicle with gasoline when a female in her 20‟s pulled in
next to Johnson and had a “lit cigarette in her mouth.”
Johnson asked her to extinguish the cigarette because he
was pumping gasoline and advised of the no smoking
signs. Johnson felt that she did not hear him or ignored
him. He said that she then placed the cigarette in the ash
stand and entered the store. About 2-3 minutes later the
same female exited the store and Johnson was still
pumping gasoline. Johnson walked over to the female
and told her she should have put the cigarette out and
“reminded her that she was in a no smoking zone.”
Johnson reported that the store clerk then exited the
store and asked him not to be harassing the customers
and requested that he leave. At the same time Johnson
reported that a “young man” came from behind him and
started to threaten him, stating that he would smash
Johnson‟s face in for harassing a woman in his presence.
Johnson[ ]reported that the male subject started “sticking
his finger in Johnson‟s face” and stated “old man I‟ll push
your [f******] face in” and then pushed Johnson hard
enough to “slam him extremely into the ground” which is
concrete pavement. Johnson stated that he was stunned
and unable to get up immediately. After Johnson was
able to get back up he stated that the man charged him
again, “got right in my face saying he had something else
for me”, and he “blew spit in my face.” Johnson stated
that the man continued to threaten him so Johnson went
to the Leffler Fuel Co. 911 was called by his wife after
Leffler Oil refused to help him. Johnson stated that he
attempted to get the license plate off the car but the male
blocked his view and threatened him again. Johnson
stated that the male subject got into a small gray or green
car and left while the store clerk told him to “get out and
stay away.”
Johnson was transported by ambulance to Memorial
Hospital ED for evaluation and treatment. Medical
records from Memorial Hospital showed the following
diagnosis for Johnson: Assault, rib fracture - 1 rib closed,
cervical strain, head injury - superficial, chest wall
contusion, and hip strain.
4

On 01/27/2014 a photo of the suspect and vehicle were
released to the media and placed on the department
Facebook page for identification.
I received an anonymous call on 01/28/2014 from an
anonymous caller stating she believed the person in the
surveillance photo was Eric TEREO and that he also has
a similar vehicle. Another person also gave the same
information via tip line.
York Area Regional Police were sent to TEREO's last
known address (Crestview Dr.) and TEREO never
contacted me. I was also given several cell phone
numbers for TEREO but he never returned my phone
call. TEREO also deactivated or blocked his Facebook
account the same day I sent York Area Regional PD to the
address listed on his driver‟s license.
On 02/11/2014 victim Carl Johnson and his wife appeared
at the police station for follow up. A photo lineup was
displayed to Johnson and he identified Eric TEREO as
the one who assaulted him at the gas station.
Johnson reported that he is having ongoing medical
issues as a result of the assault which include chronic left
shoulder pain/problems and chronic protruding left rib
and pain (rib that was fractured as a result of this
incident).
TEREO currently has a warrant issued for disorderly
conduct and has not returned any of my phone calls.
Based on this information I am requesting a warrant of
arrest be issued for Eric Dennis TEREO.
(Id. ¶ 48).
A warrant for Tereo‟s arrest issued based on Officer Smuck‟s affidavit.
(See id. ¶ 49). Tereo surrendered himself to law enforcement upon learning of the
warrant. (Id.) Officers then placed Tereo under arrest and transported him to York
County Prison. (Id. ¶ 50). The criminal charges were bound over for court and the
prosecutor filed an information for the crimes charged in the criminal complaint.
5

(Id. ¶ 51). According to the complaint, Tereo spent roughly $10,000 on his bail
and defense, suffered alienation from family and friends, was expelled from the
Pennsylvania State University, and could not find employment. (Id. ¶¶ 53-56). On
March 12, 2015, Tereo was acquitted of all charges following a jury trial. (Id. ¶ 57).
Nonetheless, the charges remain on Tereo‟s record and media stories remain on the
internet. (Id. ¶¶ 59-60).
Tereo filed this civil rights action on July 11, 2016. (Doc. 1). In his threecount complaint, Tereo asserts claims for malicious prosecution under federal
(Count I) and state law (Count III), as well as a municipal liability claim under
Monell v. Department of Social Services, 436 U.S. 658, 690-94 (1978) (Count II). On
October 25, 2016, Officer Smuck and Southern Regional Police Department filed the
instant motion (Doc. 11) to dismiss all claims pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. The motion is fully briefed and ripe for
disposition.
II.

Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.
FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd.,
292 F.3d 361, 374 n.7 (3d Cir. 2002)).
6

Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts
a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir.
2010). In the first step, “the court must „tak[e] note of the elements a plaintiff must
plead to state a claim.‟” Id. at 130 (alteration in original) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a claim must be
separated; well-pleaded facts are accepted as true, while mere legal conclusions
may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578 F.3d 203,
210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual allegations, it
must determine whether they are sufficient to show a “plausible claim for relief.”
Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 556.
A claim is facially plausible when the plaintiff pleads facts “that allow[ ] the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
Courts should grant leave to amend before dismissing a curable pleading in
civil rights actions. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc.,
482 F.3d 247, 251 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002). Courts need not grant leave to amend sua sponte in dismissing noncivil rights claims pursuant to Rule 12(b)(6), Fletcher-Harlee Corp., 482 F.3d at 25253, but leave is broadly encouraged “when justice so requires.” FED. R. CIV. P.
15(a)(2).
7

III.

Discussion
Defendants contend that Officer Smuck possessed probable cause to arrest

Tereo, defeating his Section 1983 and state law claims for malicious prosecution.
Defendants also maintain that Tereo‟s factual averments are insufficient to
establish a cognizable Monell claim against the Southern Regional Police
Department. The court will address these issues seriatim.
A.

Section 1983 Claims

Section 1983 of Title 42 of the United States Code provides a cause of action
to redress violations of federal law committed by state officials. See 42 U.S.C.
§ 1983. Section 1983 is not a source of substantive rights, but merely a method for
vindicating those rights otherwise protected by federal law. Gonzaga Univ. v. Doe,
536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To
establish a claim under Section 1983, plaintiff must show a deprivation of a “right
secured by the Constitution and the laws of the United States . . . by a person acting
under color of state law.” Kneipp, 95 F.3d at 1204 (quoting Mark v. Borough of
Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)). There is no dispute that defendants are
state actors for purposes of Section 1983. We thus consider only whether
defendants deprived Tereo of his constitutional rights.
1.

Malicious Prosecution Claim Against Officer Smuck
a.

Probable Cause

The gravamen of defendants‟ challenge to the Section 1983 claims is their
asseveration that Officer Smuck had probable cause to arrest Tereo. (Doc. 11 ¶ 5;
Doc. 13 at 6-11). The elements of a malicious prosecution claim are as follows: (1)
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defendant commenced a criminal proceeding; (2) the proceeding terminated in
plaintiff‟s favor; (3) defendant “initiated the proceeding without probable cause;”
(4) defendant acted maliciously or with a purpose apart from bringing plaintiff to
justice; and (5) 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,
81-82 (3d Cir. 2007); see also Henderson v. City of Phila., 853 F. Supp. 2d 514, 518
(E.D. Pa. 2012).
Probable cause to arrest exists when facts and circumstances within a
police officer‟s knowledge would convince a reasonable person that an individual
has committed an offense. See Beck v. Ohio, 379 U.S. 89, 91 (1964); United States
v. Myers, 308 F.3d 251, 255 (3d Cir. 2002). Whether the individual actually
committed the crime or was acquitted of the charges is irrelevant to a probable
cause examination. Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005).
Tereo avers that Office Smuck deliberately withheld exculpatory information
from the affidavit of probable cause. (Doc. 1 ¶ 78). He further claims that Officer
Smuck‟s affidavit of probable cause misled a court into issuing a warrant for his
arrest. (Id. ¶¶ 79-82). To satisfy Rule 12(b)(6), Tereo must plead sufficient facts to
plausibly establish that (1) Officer Smuck “knowingly and deliberately, or with a
reckless disregard for the truth, made false statements or omissions that create a
falsehood in applying for a warrant,” and (2) “such statements or omissions are
material, or necessary, to the finding of probable cause.” Wilson v. Russo, 212 F.3d
781, 786-87 (3d Cir. 2000) (quoting Sherwood v. Mulvihill, 113 F.3d 369, 399 (3d Cir.
1997)). Omissions are made with reckless disregard when an officer excludes facts
9

within his knowledge that are the type which a reasonable person would know that
the warrant issuing judge would want to know. Andrews v. Scuilli, 593 F.3d 690, 698
(3d Cir. 2017).
Tereo has alleged that the affidavit of probable cause excluded material
exculpatory evidence, including:
a. Identification of evidence obtained by Officer Bowser
during his investigation, i.e., witness statements, and the
fact that a surveillance video of the incident existed but
had gone missing;
b. That Officer Bowser and the Sunoco employees who
viewed the missing surveillance video would say that the
video evidence undermined Johnson‟s claim that Tereo
approached Johnson from behind;
c. That Officer Bowser and the Sunoco employees who
viewed the missing surveillance video would say that the
video evidence undermined Johnson‟s claim that Tereo
stuck his finger in Johnson‟s face;
d. That Officer Bowser and the Sunoco employees who
viewed the missing surveillance video would say that the
video evidence undermined Johnson‟s claim that Tereo
“slammed” Johnson to the ground;
e. That Officer Bowser and the Sunoco employees who
viewed the missing surveillance video would say that the
video evidence undermined Johnson‟s claim that after
Johnson got up from the ground, Tereo “charged him”;
f. That Officer Bowser and the Sunoco employees who
viewed the missing surveillance video would say that the
video evidence undermined Johnson‟s claim that Tereo
spit in Johnson‟s face;
g. That the initial female target of Johnson‟s harassment
was a regular customer of Sunoco, and thus a witness
statement could be obtained;

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h. That the Leffler fuel company employee would say that
Johnson was the aggressor, and that Tereo acted in selfdefense and in defense of Tammy Reynolds;
i. That Sunoco employee, Tammy Reynolds, would say
that Johnson was the aggressor, and that Tereo acted in
self-defense and in defense of her; and
j. That Sunoco employee, Alice Crawley, would say that
she told Johnson on three separate occasions to leave
Sunoco and to not return, and that Johnson only harassed
females.
(Doc. 1 ¶ 78). According to Tereo, Officer Smuck fully reviewed the original
investigating officer‟s file and ostensibly was aware of the wealth of exculpatory
information therein. (See id. ¶¶ 36, 68, 78, 80-82).
Johnson‟s identification of Tereo as the alleged offender would usually be
sufficient to establish probable cause. See Wilson, 212 F.3d at 790. However, a
positive identification by a victim may be outweighed by independent exculpatory
evidence. Id. Third Circuit jurisprudence mandates that an officer may not exclude
exculpatory evidence from an affidavit of probable cause, “even if substantial
inculpatory evidence (standing by itself) suggests that probable cause exists.”
Andrews, 853 F.3d at 699 (quoting Dempsey v. Bucknell Univ., 834 F.3d 457, 469 (3d
Cir. 2016)). When a plaintiff establishes improper omissions, district courts must
reconstruct the challenged affidavit. Dempsey, 834 F.3d at 470.
The omissions cited by Tereo are the type which a reasonable person would
recognize that the judge would want to know because they are plainly exculpatory.
See Andrews, 853 F.3d at 699. Therefore, the court must reconstruct Officer
Smuck‟s affidavit to determine whether the omissions were material to a finding of
11

probable cause. Dempsey, 834 F.3d at 470. The reconstructed affidavit reads as
follows, with additions in italics:
On 11/19/2013 at 1505 hours Officer James Bowser of the
Stewartstown Police Department was dispatched to the
Sunoco Gas Station located at 62 N. Main St. in
Stewartstown Borough for an assault.
The Stewartstown Police Department closed at the end of
2013 and Stewartstown contracted with the Southern
Regional Police Department for police services beginning in
January 2014. I took over Officer Bowser’s investigation
concerning the Johnson assault on 01/18/14. I did not
interview Officer Bowser regarding his investigation
concerning the Johnson assault.
On 01/18/2014 I met with the victim Carl Johnson and his
wife at their residence. Carl Johnson advised the
following: He stated that he was at the Sunoco filling his
vehicle with gasoline when a female in her 20‟s pulled in
next to Johnson and had a “lit cigarette in her mouth.”
Johnson asked her to extinguish the cigarette because he
was pumping gasoline and advised of the no smoking
signs. Johnson felt that she did not hear him or ignored
him. He said that she then placed the cigarette in the ash
stand and entered the store. About 2-3 minutes later the
same female exited the store and Johnson was still
pumping gasoline. Johnson walked over to the female
and told her she should have put the cigarette out and
“reminded her that she was in a no smoking zone.”
Johnson reported that the store clerk then exited the
store and asked him not to be harassing the customers
and requested that he leave. At the same time Johnson
reported that a “young man” came from behind him and
started to threaten him, stating that he would smash
Johnson‟s face in for harassing a woman in his presence.
Johnson[ ]reported that the male subject started “sticking
his finger in Johnson‟s face” and stated “old man I‟ll push
your [f******] face in” and then pushed Johnson hard
enough to “slam him extremely into the ground” which is
concrete pavement. Johnson stated that he was stunned
and unable to get up immediately. After Johnson was
able to get back up he stated that the man charged him
again, “got right in my face saying he had something else
12

for me”, and he “blew spit in my face.” Johnson stated
that the man continued to threaten him so Johnson went
to the Leffler Fuel Co. 911 was called by his wife after
Leffler Oil refused to help him. Johnson stated that he
attempted to get the license plate off the car but the male
blocked his view and threatened him again. Johnson
stated that the male subject got into a small gray or green
car and left while the store clerk told him to “get out and
stay away.”
Johnson was transported by ambulance to Memorial
Hospital ED for evaluation and treatment. Medical
records from Memorial Hospital showed the following
diagnosis for Johnson: Assault, rib fracture - 1 rib closed,
cervical strain, head injury - superficial, chest wall
contusion, and hip strain.
Following my interview with Johnson and his wife, I located
Officer Bowser’s investigative file, which included notes, a
written statement from Johnson, pictures printed from a
surveillance system, an officer’s daily log, and Johnson’s
medical records. A clerk from the Sunoco advised me that
a copy of Sunoco’s surveillance video of the 11/19/2013
incident had been provided to Officer Bowser. I could not
locate a copy of the video, and Sunoco no longer had the
original copy of the video. According to the Sunoco
employees who had viewed the surveillance video, the video
did not support certain aspects of Johnson’s account of the
incident specifically that TEREO approached Johnson from
behind, stuck his finger in Johnson’s face, slammed Johnson
to the ground, charged Johnson after he got up from the
ground, and spit in Johnson’s face. I also interviewed
Sunoco employees Alice Crowley and Tammy Reynolds who
were present on the day of the 11/19/2013 incident.
Reynolds, who witnessed the incident, stated that Johnson
was the aggressor and that TEREO acted in self-defense
and in defense of her. Reynolds corroborated that TEREO
pushed Johnson. Crowley stated that she had told Johnson
on three separate occasions to leave the Sunoco and not to
return. According to Crowley, Johnson only harassed
females. Reynolds and Crowley confirmed that the initial
female target of Johnson’s harassment was a regular
customer of Sunoco, but they did not know her identity. I
did not identify this female witness or obtain her statement.
I interviewed Leffler Fuel employee, Dan Lyttle. Lyttle
13

stated that Johnson was the aggressor and TEREO acted in
self-defense and in defense of Reynolds.
On 01/27/2014 a photo of the suspect and vehicle were
released to the media and placed on the department
Facebook page for identification.
I received an anonymous call on 01/28/2014 from an
anonymous caller stating she believed the person in the
surveillance photo was Eric TEREO and that he also has
a similar vehicle. Another person also gave the same
information via tip line.
York Area Regional Police were sent to TEREO's last
known address (Crestview Dr.) and TEREO never
contacted me. I was also given several cell phone
numbers for TEREO but he never returned my phone
call. TEREO also deactivated or blocked his Facebook
account the same day I sent York Area Regional PD to the
address listed on his driver‟s license.
On 02/11/2014 victim Carl Johnson and his wife appeared
at the police station for follow up. A photo lineup was
displayed to Johnson and he identified Eric TEREO as
the one who assaulted him at the gas station.
Johnson reported that he is having ongoing medical
issues as a result of the assault which include chronic left
shoulder pain/problems and chronic protruding left rib
and pain (rib that was fractured as a result of this
incident).
TEREO currently has a warrant issued for disorderly
conduct and has not returned any of my phone calls.
Based on this information I am requesting a warrant of
arrest be issued for Eric Dennis TEREO.
(See Doc. 15 at 8-12).
The reconstructed affidavit reveals that Officer Smuck excluded information
which suggests that Johnson was the aggressor and Tereo acted either in selfdefense or defense of Reynolds. Some courts within this circuit have suggested
14

that perceived affirmative defenses, such as self-defense, need not be included in
affidavits of probable cause. See, e.g., Gorman v. Bail, 947 F. Supp. 2d 509, 523 (E.D.
Pa. 2013). But the Third Circuit Court of Appeals has not made such a broad
pronouncement. See Holman v. City of York, 564 F.3d 225, 231 (3d Cir. 2009). Per
contra, the Third Circuit has stressed that probable cause analysis requires
consideration of a totality of the circumstances paired with a “common sense
approach.” Goodwin v. Conway, 836 F.3d 321, 327 (3d Cir. 2016). When the court‟s
review divulges independent and reliable exculpatory evidence known by the
charging officer, such evidence may outweigh or undermine the incriminating
evidence which, standing alone, established probable cause. See Andrews, 853 F.3d
at 699 (quoting Dempsey, 834 F.3d at 469).
Based upon this legal framework, the court concludes that Officer Smuck‟s
omissions could be material to a finding of probable cause. Not only do the omitted
facts suggest that Tereo‟s actions were justified, but they also severely undermine
Johnson‟s reliability. The warrant issuing judge may have weighed the exculpatory
evidence against Johnson‟s statements and determined that the reconstructed
affidavit did not establish probable cause. A determination that probable cause
necessarily existed would be premature in the absence of a fully-developed factual
record. Cf. Watson v. Witmer, 183 F.Supp.3d 607, 613 (M.D. Pa. 2016) (citing Toribio
v. Spece, No. 3:10-CV-2441, 2011 WL 6027000, at *3 (M.D. Pa. Dec. 5, 2011); Alassani
v. Walter, No. 10-4491, 2011 WL 135018, at *5 (E.D. Pa. Jan. 14, 2011)). Accordingly,
Tereo‟s malicious prosecution claim survives Rule 12(b)(6) scrutiny.

15

b.

Qualified Immunity

Officer Smuck additionally asserts that he is entitled to qualified immunity.
(Doc. 11 ¶ 7). Qualified immunity protects a state actor who has committed
constitutional violations if the plaintiff‟s rights were not clearly established when
the individual acted. Pearson v. Callahan, 555 U.S. 223, 244-45 (2009). No liability
will attach if a reasonable state actor could have believed that the challenged
conduct was in compliance with settled law. Id.; see also Springer v. Henry, 435
F.3d 268, 280 (3d Cir. 2006). The doctrine cloaks government officials with
“immunity from suit rather than a mere defense to liability,” Mitchell v. Forsyth,
472 U.S. 511, 526 (1985) (emphasis omitted), and “ensure[s] that insubstantial claims
against government officials [will] be resolved prior to discovery.” Pearson, 555
U.S. at 231-32 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)). The
doctrine generally “protects „all but the plainly incompetent or those who
knowingly violate the law.‟” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). The burden to establish qualified
immunity rests with the defendant. Beers-Capitol v. Whetzel, 256 F.3d 120, 142
n.15 (3d Cir. 2001).
A court evaluating a claim of qualified immunity considers two distinct
inquiries: first, whether, based on the facts alleged, a constitutional right has been
violated and, second, if so, whether the right was “clearly established” at the time of
the alleged violation. Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir.
2015) (quoting Pearson, 555 U.S. at 232). The court has determined that Tereo

16

pleads sufficient facts to plausibly establish that his constitutional rights were
violated. Accordingly, we proceed to the clearly established prong.
A court must “frame the precise contours” of the right at issue before
determining whether that right is clearly established. Spady, 800 F.3d at 638. A
Section 1983 plaintiff need not produce a directly analogous case to prove that a
right is clearly established, but there must exist Supreme Court precedent or a
“robust consensus of cases of persuasive authority” at the time of the challenged
conduct to “place[] the . . . constitutional question beyond debate.” Taylor v.
Barkes, 575 U.S. ___, 135 S. Ct. 2042, 2044 (2015) (per curiam). Our ultimate inquiry
is whether the state of the law at the time of the alleged violation gave the
defendant “fair warning” that his conduct was unconstitutional. L.R. v. Sch. Dist.
of Phila., 836 F.3d 235, 248 (3d Cir. 2016).
Explicit Third Circuit precedent answers this inquiry in the affirmative. As
the Third Circuit recently pronounced, it is beyond debate that the right to be free
from arrest except upon probable cause is clearly established. Andrews, 853 F.3d at
705 (quoting Donahue v. Gavin, 280 F.3d 371, 380 (3d Cir. 2002); Orsatti v. N.J. State
Police, 71 F.3d 480, 483 (3d Cir. 1995)). In light of this authority, it would be clear to
a reasonable actor that Officer Smuck‟s conduct was unlawful. Id. (quoting Saucier
v. Katz, 533 U.S. 194, 202 (2001)). Officer Smuck is not entitled to qualified
immunity at this juncture.

17

2.

Municipal Liability Claim Against Southern Regional Police
Department

Tereo claims that Southern Regional Police Department “failed to implement
policies, practices, and training regarding how to protect an individual‟s” civil
rights. (Doc. 1 ¶ 98). In response, defendants submit that Tereo has not asserted
sufficient factual averments to support his allegations. (Doc. 11 ¶ 6).
Municipal liability arises when a governmental entity causes an employee to
violate another‟s constitutional rights by an official custom or policy. See Monell,
436 U.S. at 690-94; Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998). To
establish liability, plaintiff must identify the challenged policy or custom, attribute it
to the municipality itself, and show a causal link between the execution of the policy
or custom and the injury suffered. See Natale v. Camden Cty. Corr. Facility, 318
F.3d 575, 583-84 (3d Cir. 2003). A policy exists “when a decisionmaker possess[ing]
final authority to establish . . . [public] policy with respect to the action issues an
official proclamation, policy or edict.” Id. at 584 (quoting Kneipp, 95 F.3d at 1212).
A custom is “an act „that has not been formally approved by an appropriate
decisionmaker,‟ but that is „so widespread as to have the force of law.‟” Id. (quoting
Bd. of Cty. Comm‟rs v. Brown, 520 U.S. 397, 404 (1997)). A plaintiff proceeding on
an unofficial custom theory must allege facts tending to establish that “the
[municipality] knew of a pattern of constitutional violations or that such
consequences were so obvious the [municipality‟s] conduct can only be described as
deliberate indifference.” Pelzer v. City of Phila., 656 F. Supp. 2d 517, 533 (E.D. Pa.
2009).
18

A municipality may be held liable for constitutional violations that result
from inadequate training of its employees if the failure to train constitutes a custom
of the municipality. Connick v. Thompson, 563 U.S. 51, 61 (2011). The failure must
reflect “deliberate indifference to the [constitutional] rights of persons with whom
the police come into contact.” Colburn v. Upper Darby Twp., 946 F.2d 1017, 1028
(3d Cir. 1991) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). A showing
of deliberate indifference requires that “(1) municipal policymakers know that
employee will confront a particular situation; (2) the situation involves a difficult
choice or a history of employee[] mishandling; and (3) the wrong choice by an
employee will frequently cause deprivation of constitutional rights.” Carter v. City
of Phila., 181 F.3d 339, 357 (3d Cir. 1999). Ordinarily, plaintiffs must show a “pattern
of similar [constitutional] violations” to prove deliberate indifference in the failure
to train context. Connick, 563 U.S. at 63. However, the Supreme Court has
indicated that a single incident may evince deliberate indifference when “the need
to train officers . . . can be said to be so obvious” in itself and the lack thereof would
perforce lead to recurrent rights violations. City of Canton, 489 U.S. at 390 n.10; see
also Thomas v. Cumberland Cty., 749 F.3d 217, 223-25 (3d Cir. 2014).
The complaint lacks allegata to undergird Tereo‟s claim that Southern
Regional Police Department failed to comport with requisite training standards and
internal policies. (See Doc. 1 ¶¶ 88-105). The pleading permits no inference that
Southern Regional Police Department issued “an official proclamation, policy[,] or
edict” relieving employees or supervisors of their obligation to comply training or
internal obligations. See Natale, 318 F.3d at 584. Nor does Tereo allege that
19

noncompliance with said training and internal policies was prevalent, recurring,
and silently sanctioned by department decisionmakers. See id. Tereo‟s assertions
are mere legal conclusion which fail to evince a “pattern” of known constitutional
violations amounting to an unofficial department custom. See Pelzer, 656 F. Supp.
2d at 533. Without specific facts relating the asserted constitutional harm to an
established municipal policy or custom, the court must dismiss Tereo‟s Monell
claim against Southern Regional Police Department. Because this claim is factually
rather than legally flawed, dismissal will be without prejudice. See Fletcher-Harlee
Corp., 482 F.3d at 251; Grayson, 293 F.3d at 108.
B.

State Law Claim Against Officer Smuck

Tereo asserts a state law claim for malicious prosecution against Officer
Smuck in his individual capacity. (Doc. 1). Defendants argue that the existence of
probable cause precludes this claim. (Doc. 11 ¶ 5). Alternatively, defendants posit
that official statutory immunity bars this claim. (Id. ¶¶ 7-9).
1.

State Law Claim for Malicious Prosecution

A claim of malicious prosecution requires a plaintiff to demonstrate that:
(1) defendant initiated a criminal proceeding; (2) the proceeding terminated in the
plaintiff‟s favor; (3) defendant initiated the proceeding without probable cause; and
(4) defendant acted maliciously or with a purpose apart from bringing plaintiff to
justice. See Donahue, 280 F.3d at 379 (citing Hilfirty v. Shipman, 91 F.3d 573, 579
(3d Cir. 1996)).
Defendants argue that Officer Smuck had probable cause to arrest Tereo for
pushing Johnson, thereby precluding liability for malicious prosecution. (Doc. 23 at
20

6-11; Doc. 15 at 2-13). Courts measure the existence of probable cause against the
same standards whether the claim originates under state or federal law. DeBellis
v. Kulp, 166 F. Supp. 2d 255, 280 (E.D. Pa. 2001) (citing Renk, 641 A.2d at 293). The
court‟s probable cause assessment anent Tereo‟s Section 1983 claim applies with
equal force to the state law claim. See Part III.A.1.a. Accordingly, the court will
deny defendants‟ motion to dismiss Tereo‟s state law claim on this ground.
2.

Official Immunity

The Pennsylvania Political Subdivision Tort Claims Act, 42 PA. CONS. STAT.
§ 8541 et seq., immunizes local agencies from liability “for damage on account of any
injury to a person or property caused by any act of the local agency or any employee
thereof . . . .” Id. § 8541. This governmental immunity extends to employees of
local agencies for acts taken “within the scope of [the employee‟s] office or duties.”
Id. § 8545. The Act exempts from its scope any agency or employee whose injurious
act “constituted a crime, actual fraud, actual malice[,] or willful misconduct.” Id.
§ 8550. Pennsylvania courts apply a subjective standard to police officers to
determine whether the willful misconduct exception applies. Renk v. City of
Pittsburgh, 641 A.2d 289, 293-94 (Pa. 1994); see also Basile v. Twp. of Smith, 752 F.
Supp. 2d 643, 669 (W.D. Pa. 2010) (citing Brockington v. City of Phila., 354 F. Supp.
2d 563, 571 (E.D. Pa. 2005)). That is, a police officer must have understood that the
tortious action is illegal and intended to commit it nonetheless. See In re City of
Phila. Litig., 158 F.3d 723, 728 (3d Cir. 1998).

21

In the instant matter, the Pennsylvania Political Subdivision Tort Claims
Act may not shield Officer Smuck with respect to the state law claim. Malicious
prosecution constitutes an intentional tort. See Cruz ex rel. Alvarez v. City of
Phila., No. 07-493, 2008 WL 4347529, at *10 (E.D. Pa. Sept. 23, 2008) (citing Gines
v. Bailey, No. 92-4170, 1992 WL 394512, at *5 (E.D. Pa. Dec. 29, 1992)). This claim ex
proprio vigore establishes that Officer Smuck‟s alleged conduct was knowing and
intentional. Tereo‟s allegations, if proven, are sufficient to establish that Officer
Smuck engaged in willful misconduct, thereby abrogating statutory immunity. See,
e.g., Basile, 752 F. Supp. 2d at 669-70; Walker v. N. Wales Borough, 395 F. Supp. 2d
219, 231 (E.D. Pa. 2005). Officer Smuck is not entitled to official immunity at this
stage of the litigation.
IV.

Conclusion
The court will grant in part and deny in part defendants‟ motion (Doc. 11) to

dismiss.1 An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

1

May 15, 2017

Also pending before the court is defendants‟ motion (Doc. 24) for sanctions
against Tereo and his counsel, Attorney Devon M. Jacob. Defendants assert that
Tereo‟s claims are frivolous based on the perceived existence of probable cause.
(Id. ¶¶ 22-23). In light of our analysis supra, the court will deny the motion for
sanctions.