Griffin v. Keiper et al

Filing 63

MEMORANDUM Re:(Docs.51 & 53). Signed by Honorable Richard P. Conaboy on 1/17/12. (cc, )

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DANIEL S. GRIFFIN,

:
:CIVIL ACTION NO. 3:11-CV-924
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
RUSSELL WALBERT, et al.,
:
:
Defendants.
:
:
________________________________________________________________
MEMORANDUM
Here we consider the two motions to dismiss pending in this
case: Motion of Defendant Russell Walbert to Dismiss (Doc. 51), and
Defendant Berks County Assistant District Attorney Howard’s Motion
to Dismiss Plaintiff’s Amended Complaint Pursuant to Fed. R. Civ.
P. 12(b)(6) (Doc. 53).

Both motions seek dismissal of Plaintiff’s

Amended Complaint (Doc. 49).

For the reasons discussed below, the

motions are granted.
I. Background
The background of this case was set out in the Court’s
Memorandum and Order issued on October 7, 2007.

(Doc. 42 at 1-12.)

Plaintiff’s Amended Complaint (Doc. 49) contains an “Introductory
Statement” is basically a conclsuory summation of his case.
49 at 1.)

Plaintiff also states that “all factual averments in the

original complaint are incorporated herein by reference.”1

1

(Doc.

(Id.)

This method of pleading does not conform to either the
Federal Rules of Civil Procedure or the Local Rules of Court of the
Middle District of Pennsylvania.

Plaintiff’s Amended Complaint contains two counts: Count I,
“Plaintiff against the Defendants Walbert and Howard for violating
Daniel Griffin’s 4th Amendment Rights” (Doc. 49 at 2); and Count II,
“Plaintiff against Defendant Harding for the Violation of
Plaintiff’s 4th Amendment Right to Be Free of Excessive Force While
Being Taken into Custody” (id. at 5).
Because Count I is the only count at issue in the pending
motions to dismiss, here we provide only a brief recitation of the
facts related to the claims contained in Count I of Plaintiff’s
Amended Complaint.

Plaintiff’s Amended Complaint contains minimal

factual averments.

Therefore, most background information is

derived from other documents.
According to Plaintiff’s Amended Complaint, Defendant Walbert
caused Plaintiff to be arrested on or about May 14, 2009.
¶ 10.)

(Doc. 49

Plaintiff’s Complaint establishes that the event which

triggered the events about which Plaintiff complains was a traffic
stop in which Defendant Walbert, a police officer in Fleetwood
Borough, Berks County, Pennsylvania, stopped Plaintiff in Berks
County for a “purported traffic violation” and Plaintiff told
Defendant Walbert that he was an off-duty municipal police officer.
(Doc. 1 ¶ 15.)

(Plaintiff does not state the date of the Berks

County traffic stop.)
At some point after the Berks County traffic stop, Defendant
Walbert made an inquiry to Defendant Keith Keiper, Chief of Police

2

of Kingston Borough, Pennsylvania.

(Id.)

(Kingston is the

municipality to which Plaintiff alleged law enforcement
attachment.)

Plaintiff maintains that following Defendant

Walbert’s inquiry, Defendant Keiper, Defendant Paul Keating
(Kingston’s Municipal Manager), and Defendant Donald Crane (a
police captain employed by the Wilkes-Barre, Pennsylvania, Police
Department) developed a plan to arrest him on charges of
“impersonating a police officer” and “false identification to law
enforcement.”

(Id.)

Plaintiff states at the time he was no longer

a police officer and no longer a public employee.

(Doc. 49 ¶ 11.)

Plaintiff asserts that “on or about this time, upon
information and belief” Berks County Assistant District Attorney
Howard decided to prosecute Plaintiff in response to pressure from
the Pennsylvania Attorney General’s Office.

(Doc. 49 ¶ 12.)

Plaintiff adds that Defendant Walbert was aware of this pressure,
admitting to Plaintiff the matter “was out of my hands now,” and
yielded to Defendant Howard’s advice to bring charges.

(Id.)

Asserting that Defendant Howard admitted that the Berks County
District Attorney had directed Plaintiff’s prosecution, Plaintiff
maintains this led to Defendant Howard’s advice to Defendant
Walbert “in turn because of pressure from the Atty. Gen’s office.”2

2

The Berks County District Attorney is not a defendant in
this case.

3

(Id. ¶ 14.)
Plaintiff explains that the then Attorney General, Tom
Corbett, was a personal friend and political ally of Mayor Haggerty
of Kingston, and Plaintiff “believes that Haggerty’s anger at
Griffin, for his successful support of Lisa Baker who defeated
Haggerty in a state Senate race, cause the Atty. Gen’s office,
presumably at Haggerty’s request, to become involved in the
unlawful plans to prosecute Griffin.
Griffin’s past FOP advocacy.”

An additional reason was

(Doc. 49 ¶ 15.)

Asserting that all charges were terminated in his favor,
Plaintiff states that they were dismissed in part by a judicial
response to a writ of habeas corpus and then by a judicial response
after hearing all remaining evidence against him.
18.)

(Doc. 49 ¶¶ 17-

In another filing, Plaintiff states that the false

identification charge was dismissed in a habeas corpus petition and
the impersonation charge was terminated after a trial which took
place in March 2010.

(Doc. 56 ay 2.)

Plaintiff does not specifically state in his Amended Complaint
that he was arrested pursuant to a warrant and that Defendant
Walbert was the affiant, nor did he do so in his Complaint.
However, despite the less-than-clear pleading style of the
Complaint, we concluded in our previous Memorandum and Order that
Plaintiff had been arrested pursuant to a warrant and that
Defendant Walbert had provided the affidavit of probable cause.

4

(Doc. 42 at 22.)3

With his Amended Complaint, Plaintiff does not

dispute this finding.
II. Discussion
a. Motion to Dismiss Standard
In McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009),
the Third Circuit Court of Appeals set out the standard applicable
to a motion to dismiss in light of the United States Supreme
Court’s decisions Bell Atlantic Corp. v. Twombly, 550 U.S. 433
(2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937
3

This finding was based on information contained in
Commonwealth v. Griffin, 24 A.3d 1037 (Pa. Super. 2011), a related
Pennsylvania case. In the Court’s October 7, 2011, Memorandum and
Order (Doc. 42), we included facts contained in the Superior Court
opinion primarily because the issue of collateral estoppel was
raised by some Defendants in their motion to dismiss and they
attached the Superior Court opinion to their brief. (See Docs. 26,
26-1.) Plaintiff acknowledged the relationship between the cases
but argued against estoppel. (Doc. 28 at 3, 7-8.) He did not
argue that the Superior Court’s factual findings were in error.
Beyond the collateral estoppel issues raised, the Court did
not rely upon the Superior Court’s factual findings except to
confirm that Plaintiff had been arrested pursuant to a warrant
where that appeared to be the case from Plaintiff’s Complaint and
opposition briefs but was not absolutely clear. (Doc. 42 at 22, 23
n.6.)
We again include the warrant information in the Background
section of this Memorandum as it is of central importance to the
analysis of the issues raised and because Plaintiff acknowledges in
Plaintiff’s Brief in Opposition to Defendant Walbert’s Motion to
Dismiss Plaintiff’s Amended Complaint that Defendant Walbert is the
affiant who charged him. (Doc. 57 at 2.) Given the circumstances
of this case, use of this information in reviewing this Motion to
Dismiss is consistent with Third Circuit findings regarding
documents properly considered with a Motion to Dismiss. See, e.g.,
Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group,
Ltd., 181 F.3d 410, 426-27 & n.7.
5

(2009).
“[T]o survive a motion to dismiss, a
complaint must contain sufficient factual
matter, accepted as true to ‘state a claim
that relief is plausible on its face.’”
Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550
U.S. at 570). The Court emphasized that
“only a complaint that states a plausible
claim for relief survives a motion to
dismiss.” Id. at 1950. Moreover, it
continued, “[d]etermining whether a complaint
states a plausible claim for relief will . .
. be a context-specific task that requires
the reviewing court to draw on its judicial
experience and common sense.” Id. (citation
omitted).
McTernan, 577 F.3d at 530.

The Circuit Court discussed the effects

of Twombly and Iqbal in detail and provided a road map for district
courts presented with a motion to dismiss for failure to state a
claim in a case filed just a week before McTernan, Fowler v. UPMC
Shadyside, 578 F.3d 203 (3d Cir. 2009).
[D]istrict courts should conduct a two-part
analysis. First, the factual and legal
elements of a claim should be separated. The
District Court must accept all of the
complaint’s well-pleaded facts as true, but
may disregard any legal conclusions. [Iqbal,
129 S. Ct. at 1949.] Second, a District
Court must then determine whether the facts
alleged in the complaint are sufficient to
show that the plaintiff has a “plausible
claim for relief.” Id. at 1950. In other
words, a complaint must do more than allege a
plaintiff’s entitlement to relief. A
complaint has to “show” such an entitlement
with its facts. See Philips [v. Co. of
Alleghany], 515 F.3d [224,] 234-35 [(3d
Cir.2008 )]. As the Supreme Court instructed
in Iqbal, “[w]here the well-pleaded facts do
not permit the court to infer more than the
mere possibility of misconduct, the complaint
6

has alleged--but it has not ‘show[n]’--‘that
the pleader is entitled to relief.’” Iqbal,
129 S. Ct. at 1949. This “plausibility”
determination will be “a context-specific
task that requires the reviewing court to
draw on its judicial experience and common
sense.” Id.
Fowler, 578 F.3d at 210-11.
The Circuit Court’s guidance makes clear that legal
conclusions are not entitled to the same deference as well-pled
facts.

In other words, “the court is ‘not bound to accept as true

a legal conclusion couched as a factual allegation.’” Guirguis v.
Movers Specialty Services, Inc., No. 09-1104, 2009 WL 3041992, at
*2 (3d Cir. Sept. 24, 2009) (quoting Twombly, 550 U.S. at 555) (not
precedential).
b.

Defendants’ Motions to Dismiss
Defendants Walbert and Howeard seek dismissal of all claims

against them.

(Docs. 51, 53.)

For the reasons discussed below, we

grant Defendants’ motions.
1.

Procedural Compliance
Defendant Walbert asserts that Plaintiff’s Amended Complaint

should be dismissed based on Plaintiff’s failure to follow the
Court’s Order allowing amendment and his failure to follow
applicable pleading rules.

(Doc. 52 at 3.)

Although there is some

merit to Defendant Walbert’s arguments, we will not dismiss the
Amended Complaint on procedural grounds but will proceed with a
merits analysis.
7

2.

Count I - Fourth Amendment Claim
With this Count, Plaintiff asserts Defendants Walbert and

Howard “maliciously prosecuted him for unlawful reasons in
violation of his 1st Amendment rights and without probable cause.”
(Doc. 49 at 3, ¶ 8.)

Plaintiff also asserts that “Defendant

Walbert caused the plaintiff to be falsely arrested and unlawfully
seized.”

(Id. at 3, ¶ 10.)

Plaintiff identifies the question of

the propriety of his arrest and prosecution, at this stage of the
proceedings, to be “whether plaintiff has pled facts to show that
the defendant lacked probable cause.”

(Doc. 57 at 10.)

We agree

with Plaintiff’s assessment of the question at issue--whether
probable cause existed for Plaintiff’s arrest is a central element
in both his false arrest and malicious prosecution claims.
Therefore, whether Plaintiff has sufficiently pled that there was a
lack of probable cause is our initial inquiry.
The Fourth Amendment to the United States Constitution
provides that people are “to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, .
. . and no warrants shall issue but upon probable cause, supported
by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”
amend. IV.

U.S. Const.

It is well-established that the Fourth Amendment

“prohibits a police officer from arresting a citizen except upon
probable cause.”

Orsatti v. N.J. State Police, 71 F.3d 480, 482

8

(3d Cir. 1995) (citing Papachristou v. City of Jacksonville, 405
U.S. 156, 169 (1972)).
suspicion.”

Id.

Probable cause “requires more than mere

However, it does not “require the same type of

specific evidence of each element of the offense as would be needed
to support a conviction.”
(1972).

Adams v. Williams, 407 U.S. 143, 149

Rather, “probable cause to arrest exists when the facts

and circumstances within the arresting officer’s knowledge are
sufficient in themselves to warrant a reasonable person to believe
that an offense has been or is being committed by the person to be
arrested.”

Orsatti, 71 F.3d at 483; see also Schneyder v. Smith,

653 F.3d 313, No. 10-2367, 2011 WL 3211504, at *7 (3d Cir. July 29,
2011).
The “probable cause” requirement means that
to prove false arrest, a plaintiff must establish
that probable cause was lacking during the arrest
and related detention. Groman v. Twp. of
Manalapan, 47 F.3d 628, 634 (3d Cir. 1995). The
question of probable cause is determined using an
objective standard, based on the facts available
at the time. Barna v. City of Perth Amboy, 42
F.3d 809, 819 (3d Cir. 1994) (citing Beck v. Ohio,
379 U.S. 89, 96 (1964)). “Evidence that may prove
insufficient to establish guilt at trial may still
be sufficient to find the arrest occurred within
the bounds of the law.” Id. (citing Henry v.
United States, 361 U.S. 98, 102 (1959)). In other
words, “[p]robable cause does not require the same
type of specific evidence of each element of the
offense as would be needed to support a
conviction.” Adams v. Williams, 407 U.S. 143,
149, 92 S. Ct. 2627, 61 L. Ed. 2d 343 (1979).
Therefore, the evidentiary standard for probable
cause is significantly lower that the standard
which is required for conviction.
Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005).
9

If an arrest warrant has been issued, the warrant “does not,
in itself, shelter an officer from liability for false arrest.”
Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000).

Wilson

explained
a plaintiff may succeed in a § 1983 action
for false arrest made pursuant to a warrant
if the plaintiff shows, by a preponderance of
the evidence: (1) that the police officer
“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)
that “such statements or omissions are
material, or necessary to the finding of
probable cause.”
212 F.3d at 786-87 (quoting Sherwood v. Mulvihill, 113 F.3d 396,
399 (3d Cir. 1997)).

Procedurally, “a court faced with a claim

that an arrest warrant contains false assertions and omissions must
first determine whether the officer made those false assertions or
omissions either deliberately or with reckless disregard for their
truth.”

Reedy v. Evanson, 615 F.3d 197, 213 (3d Cir. 2010).

“The Supreme Court has made clear that a mistakenly issued or
executed warrant cannot provide probable cause for an arrest.”
Berg v. County of Allegheny, 219 F.3d 261, 270 (3d Cir. 2000)
(citing Arizona v. Evans, 514 U.S. 1 (1995); United States v.
Hensley, 469 U.S. 221 (1985); Whiteley v. Warden, 401 U.S. 560
(1971)).

Thus, when an arrest is made pursuant to an erroneously

issued warrant, the facial validity of the warrant does not provide
probable cause to arrest.

Berg, 219 F.3d at 270 (citing Whiteley,

10

401 U.S. 560).

In other words, police officers executing a warrant

which has been issued without probable cause, though unaware of the
defect in the warrant, do not have probable cause to arrest.

Id.

Because the probable cause standard is an objective one, the
fact that an individual providing information in support of the
warrant or arrest may have a bias against the person arrested does
not negate probable cause, that person’s report to the police is
not rendered unreliable.

See Mikhaeil v. Santos, Civ. A. No. 2:10-

CV-03876, 2011 WL 2429313, at *3 (D.N.J. June 13, 2011).

In

Mikhaeil, the plaintiff alleged that state police officers acted
upon information from an individual (Santos) with a bias against
him and conspired with a county detective and a deputy attorney
general to pressure the plaintiff to give evidence and plead guilty
in an unrelated case.

Id.

The court noted that “[t]he possibility

that the State Defendants were seeking to pressure Plaintiff in
regard to unrelated litigation, even if proven, would not establish
that the information in the State Department’s possession, i.e.,
the information originating with Santos, amounts to less than
probable cause.

Probable cause is an objective standard; the

subjective motives of the police are irrelevant.”

Id.

The issue of whether probable cause exists is generally a
question for the jury but the issue may be decided by the court in
an appropriate case.

Groman, 47 F.3d at 635 (citing Dreary v.

Three Un-Named Police Officers, 746 F.2d 185, 191 (3d Cir. 1984)).

11

Orsatti presented such a case with the Third Circuit Court deciding
that no rational jury could find that the police officers were
objectively unreasonable in concluding, based on the information
available to them at the time, they had probable cause to believe
that the plaintiff’s conduct constituted a crime.

Orsatti, 71 F.3d

at 485; see also Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d
Cir. 2003) (“[A] district court may conclude that probable cause
did exist as a matter of law if the evidence, viewed most favorably
to plaintiff, reasonably would not support a contrary factual
finding.”)
“[Section] 1983 liability for an unlawful arrest can extend
beyond the arresting officer to other officials whose intentional
actions set the arresting officer in motion.”
272.

Berg, 219 F.3d at

As the Supreme Court explained in Malley v. Briggs, 475 U.S.

355 (1986), section 1983 anticipates that an individual will be
“responsible for the natural consequences of his actions.”

Id. at

344 n.7 (holding that a police officer who obtains an arrest
warrant without probable cause is liable under § 1983 even though
another officer made the actual arrest).

Thus, a government

official’s liability for causing an arrest is the same as for
carrying it out.

Berg, 219 F.3d at 272 (citing Gordon v.

Degelmann, 29 F.3d 295, 298 (7th Cir. 1994); Kilbourn v. Thompson,
103 U.S. 168, 200 (1880)).
Similarly, a lack of probable cause in charging Plaintiff is
12

an element of his Fourth Amendment malicious prosecution claim in
Count I of his Amended Complaint.

(Doc. 49 ¶ 8.)

To prove malicious prosecution under section
1983 when the claim is under the Fourth Amendment,
a plaintiff must show that: (1) the defendant
initiated a criminal proceeding; (2) the criminal
proceeding ended in his favor; (3) the defendant
initiated the proceeding without probable cause;
(4) the defendant acted maliciously or for a
purpose other than brining the plaintiff to
justice; and (5) the plaintiff suffered
deprivation of liberty consistent with the concept
of seizure as a consequence of a legal proceeding.
Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007).

To prevail on

a malicious prosecution claim, the plaintiff must show that the
officer lacked probable cause to arrest him.4

Id. at 82; citing

Wright, 409 F.3d at 604.
Within this legal framework, whether there was probable cause
to arrest Plaintiff is the central question for both his false
arrest and malicious prosecution claims.

Thus, the disposition of

these claims at this stage of the proceedings depends upon whether
Plaintiff has proffered “sufficient factual matter . . . to state a
claim that relief is plausible on its face,” Iqbal, 556 U.S. at ---

4

Johnson held that in the specific circumstances of the
case (which are unlike those presented here) finding that an agent
had probable cause to arrest on one charge, without finding he had
probable cause to arrest on other charges, did not defeat the
plaintiff’s malicious prosecution claim on the other charges. 477
F.3d at 83-84. Johnson noted the vitality of the Wright rule where
the circumstances of the arrest and prosecution are intertwined.
Id. at 82, n.9. Further, the Third Circuit Court of Appeals
confirmed the precedential authority of the Wright rule in Kossler
v. Crisanti, 564 F.3d 181, 194 n.8 (3d Cir. 2009).
13

, 129 S. Ct. at 1949 (internal quotation omitted), specifically,
whether Plaintiff has proffered sufficient evidence to state a
plausible claim that he was arrested without probable cause.
In his Amended Complaint, Plaintiff claims that Defendant
Walbert caused him to be arrested.

(Doc. 49 ¶ 10.)

He also

alleges “that the defendants Walbert and Howard maliciously
prosecuted him for unlawful reasons in violation of his 1st
Amendment rights and without probable cause.”

(Doc. 49 ¶ 8.)

He

adds that “[p]robable cause cannot be created from political
requests or from retaliatory misconduct based upon non-proper law
enforcement considerations.”

(Doc. 49 ¶ 9.)

Plaintiff states that

a “prosecutor requires probable cause to effectuate a prosecution
the lack thereof, as here, raising a jury question.”
12.)

(Doc. 49 ¶

The Amended Complaint also contains the following statement:
In the case of Daniel Griffin charges against
him were dismissed in part by a judicial
response to a writ of habeas corpus and then
by a judicial response after hearing all
remaining evidence against him. This is
certainly probative of a likely lack of
probable cause creating a jury question . . .
.

(Doc. 49 ¶ 17.)
In his brief in opposition to Defendant Walbert’s motion,
Plaintiff sets out the following argument.
The charge against plaintiff was
impersonating a police officer, which is within 18
Pa. C.S. § 4912. He was pulled over originally by
a police officer for an apparent traffic violation
of some sort, and , even in the Superior court
14

opinion upon which the Court relied in its October
7, 2011 memorandum, there is no mention or
suggestion that he was trying to induce anyone to
submit to any authority at that time, or to act in
reliance on his being a police officer. The fact
there was no probable cause is suggested alone by
the fact that Walbert did not make lodge [sic] any
charges against him at the time of his arrests,
and there was never any additional evidence
adduced that he ever later showed false
credentials or otherwise tried to create the
impression in anyone that would cause them to
submit to an authority he did not have, or to gain
a benefit to the prejudice of the other. There
simply was no crime based alone upon the inventory
of his automobile, and there was no other fact
that there was any culpable behavior on his part.
These facts further inferentially support
plaintiff’s factual allegation that he was told
that Walbert was carrying out an agenda over which
he had no control. This statement alone
sufficiently establishes a lack of probable cause
for pleading purposes (i.e., why tell him that if
he had a valid arrest to make), and, when coupled
with the fact that an arrest was not made earlier,
an inferential admission that there was no
probable cause on the date of the stop, it is
clear that plaintiff has alleged an arrest and
prosecution without probable [sic].
(Doc. 57 at 10-11.)
While Plaintiff is correct that the central question before us
is whether he has pled facts to show that the defendant lacked
probable cause, and that the issue of probable cause is generally a
jury question (Doc. 57 at 10), these general principles do not
relieve Plaintiff of his obligation to produce sufficient factual
matter at this stage of proceedings.

Because Plaintiff was

arrested pursuant to an affidavit, for his claim to be plausible,
he must produce sufficient factual matter to show that the affiant,
15

Defendant Walbert, “(1) knowingly and deliberately, or with a
reckless disregard for the truth, made false statements or
omissions that create[d] a falsehood in applying for [the]
warrant”; and (2) that such statements or omissions [were]
material, or necessary to the finding of probable cause.”

Wilson,

212 F.3d 781 (internal quotation omitted) (plaintiff needed to
proffer evidence that affiant recklessly disregarded the truth in
his warrant application, and that a warrant application based on
what affiant should have told the judge would have lacked probable
cause).

Although Plaintiff talks about Defendant Walbert’s

allegedly improper motive and other facts which he views as
indicative of a lack of probable cause, he does not present any
facts which go to the dispositive inquiry: Plaintiff does not aver
that Defendant Walbert “knowingly and deliberately, or with a
reckless disregard for the truth, made false statements or
omissions that create[d] a falsehood in applying for [the]
warrant.”

Id.

Plaintiff was advised of the need for such a

showing in the Court’s October 7, 2011, Memorandum and Order (Doc.
42 at 22), yet he has not pointed to any falsehood or omission in
the affidavit that led to the issuance of the warrant for his
arrest.5

5

Based on the factual background of this case and the number
of associated proceedings, we assume that Plaintiff has, or could
have, knowledge of the contents of the affidavit at issue.
Furthermore, despite being informed of the centrality of this
matter, Plaintiff has not advised the Court otherwise.
16

Here, Plaintiff’s factual assertions, taken as true, relate to
his innocence or guilt of the crimes charged and the motivation of
Defendant Walbert.

(See, e.g., Doc. 57 at 10-11.)

Because the

probable cause inquiry is objective (the subjective motives of the
police are irrelevant) and because the evidentiary standard differs
between what is necessary for a finding of probable cause and
ultimate guilt of the charged offense, the factual assertions to
which Plaintiff points do not go to the appropriate probable cause
inquiry.

Therefore, Plaintiff has not satisfied his burden of

providing some facts that probable cause was lacking in this case.
See Barna, 42 F.3d at 819; Mikhaeil, 2011 WL 2429313, at *3.
Plaintiff’s well-pleaded facts may point to unseemly behavior on
the part of some public officials and questionable motivation for
actions taken, but, within the relevant legal framework, they do
not even create an inference of misconduct which would entitle the
Plaintiff to relief.

Therefore, Plaintiff’s claims requiring a

showing of a lack of probable cause--his claims for false arrest
and malicious prosecution in Count I--are properly dismissed.6
Because Plaintiff has been granted leave to amend and has failed to
rectify the previously identified shortcoming, Count I will now be
dismissed with prejudice.

6

We emphasize that our conclusion is not that probable cause
existed for Plaintiff’s arrest; rather, it is only that, within the
relevant legal framework, Plaintiff has not proffered any evidence
that it did not.
17

3.

Prosecutorial Immunity
Defendant Howard argues that he is entitled to absolute

prosecutorial immunity because all allegations against him
contained in Plaintiff’s Amended Complaint fall within his
traditional function as a prosecutor.

(Doc. 54 at 6.)

Plaintiff

argues that Defendant would at most be entitled to qualified
immunity because he was advising Defendant Walbert to bring
charges, but, in fact, he is not entitled to such immunity because
he violated clearly established rights.

(Doc. 56 at 4-5.)

The only claim raised against Defendant Howard in Plaintiff’s
Amended Complaint is contained in Count II alleging malicious
prosecution.

(Doc. 49 ¶¶ 8, 12, 16.)

Based on our determination

that Plaintiff’s claims against Defendants Walbert and Howard in
Count I are properly dismissed because he has failed to state a
Fourth Amendment claim, we need not decide the immunity issue.

See

Wright, 409 F.3d at 600.
III. Conclusion
For the reasons discussed above, Motion of Defendant Russell
Walbert to Dismiss (Doc. 51), and Defendant Berks County Assistant
District Attorney Howard’s Motion to Dismiss Plaintiff’s Amended
Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. 53) are
granted.

With this decision, Count I of Plaintiff’s Complaint is

dismissed with prejudice.

As this is the only claim remaining

against Defendants Walbert and Howard, they are dismissed from the

18

action.

Count II of Plaintiff’s Amended Complaint against

Defendant Harding alleging a Fourth Amendment excessive force claim
goes forward.

An appropriate Order follows.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Court
DATED: January 17, 2012

19