Zabresky v. Von Schmeling et al

Filing 64

MEMORANDUM (order to follow).Signed by Honorable Malachy E Mannion on 1/28/13. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL F. ZABRESKY,

:

Plaintiff

:

CIVIL ACTION NO. 3:12-0020

:

(JUDGE MANNION)

v.
JULIANNE VON SCHMELING,
et al.,

:
:

Defendants
:
MEMORANDUM1
Presently before the court are motions to dismiss filed by Defendant
von Schmeling, (Doc. No. 42), and Defendants Quinn, Duffy, Davis, Kane,
Biscotto, Austin, Para and Tigue, (hereinafter the “Luzerne County
Defendants”). (Doc. No. 44). The plaintiff claims civil rights violations related
to his allegedly unlawful arrest. Finding that issues of fact remain as to the
validity of the warrant and circumstances surrounding the plaintiff’s arrest, but
that some claims are duplicative or barred by the doctrine of sovereign
immunity, the court will deny each motion in part and grant each motion in
part.

1

For the convenience of the reader of this document in electronic format,
hyperlinks to the court’s record and to authority cited have been inserted. No
endorsement of any provider of electronic resources is intended by the court’s
practice of using hyperlinks.

I.

FACTUAL BACKGROUND
In 1995, Defendant von Schmeling commenced child custody and

support actions against the plaintiff, the father of her child, in the Court of
Common Pleas of Luzerne County, Pennsylvania. (Doc. No. 38). In 2009,
Defendant von Schmeling sought modification of the support order and a
hearing was set for July 14, 2009. On July 6, 2009, the plaintiff filed a motion
to continue the hearing. Though the motion was accepted by the clerk of the
court, it was not immediately docketed and was therefore never granted. The
plaintiff did not appear at the July 14 hearing. At the hearing Defendant von
Schmeling presented her petition for modification and the Hearing Officer
recommended that the plaintiff’s monthly child support payment be increased
by $250.00 from $533.00 to $783.00. (Doc. No. 47 Att. 2). The plaintiff filed
exceptions to the Hearing Officer’s recommendation. On October 26, 2009,
Judge Musto of the Court of Common Pleas for Luzerne County entered an
order denying the plaintiff’s exceptions, affirming the recommendation, and
setting the plaintiff’s monthly child support payment at $738.00 per month.
(Doc. No. 47 Att. 3). On November 17, 2009, the plaintiff filed a motion for
special relief and a stay which also sought to continue a contempt hearing
scheduled for November 24, 2009. Judge Musto denied the request to
continue the November 24 hearing but did not address the merits of the
remainder of the motion. At the November 24 hearing, Judge Musto found the
2

plaintiff to be in contempt, though it is unclear from the plaintiff’s complaint the
reasons for which he was found to be in contempt, and placed him on
probation for a period of six months. (Doc. No. 38 Att. 1).
The plaintiff alleges that during the November 24, 2009 hearing he and
his attorney attempted to clarify whether he was to pay $533.00 or $738.00
in monthly support while awaiting another scheduled hearing in which the
plaintiff planned to dispute the modification. The plaintiff alleges that Judge
Musto told him to pay $533.00 and that this instruction was heard by
Defendant von Schmeling, Defendant Eugene Duffy, a probation officer, and
Defendant Michael Quinn, a support officer. The plaintiff includes a partial
transcript from the hearing which does not contain any direct statements by
Judge Musto regarding the payment of $533.00 rather than the amount of
$738.00 indicated in the court’s order. (Doc. No. 38 Att. 1 at 8-11). The
plaintiff also asserts that he contacted Defendant Quinn via telephone on
December 21, 2009 to double-check the amount to be paid and that
Defendant Quinn instructed him to pay $533.00 because that is what Judge
Musto had stated at the hearing.
On December 21, 2009, the plaintiff submitted his child support
payment in the amount of $533.00. On December 28, 2009, a bench warrant
was issued by Judge Clinton Smith. (Doc. No. 38 Att. 1). The bench warrant
is stamped “probation violation warrant” and indicates that it was issued
3

because the plaintiff “failed to appear, after notice, before the Court for a
scheduled conference and/or hearing.” The plaintiff asserts that no hearing
or conference was scheduled between the contempt hearing on November
24, 2009 and the issuance of the warrant.
On January 7, 2010, Defendants Biscotto, Austin, Para and Tigue, all
employees of the Luzerne County Domestic Relations Section, took the
plaintiff into custody. These defendants did not present the plaintiff with a
copy of the warrant, but instructed him that he was being taken into custody
because he had failed to pay child support. The plaintiff was handcuffed and
placed in the back of an unmarked car outside of a local restaurant. While in
custody, the plaintiff was afforded the opportunity to speak briefly with his
attorney and wife. The attorney spoke with Defendant Duffy and Defendant
James Davis, the Director of the Domestic Relations Section, who each
relayed that the plaintiff had failed to pay the correct amount of support and
that was why he had been arrested. The plaintiff asserted that he had been
told to pay $533.00, not $738.00 as the defendants claim. Through the
various communications between the plaintiff, his attorney, his wife and the
defendants, it was established that if the plaintiff could pay the additional
$250.00 of support he would be released.
During the plaintiff’s transportation to the courthouse, one of the
defendants – the specific defendant is not indicated in the amended complaint
4

– asked “what did you do to piss your ex off so much?” The defendant then
stated that he was referring to Defendant von Schmeling and that she had
been “hounding” Defendant Duffy to arrest him. Once at the courthouse, the
plaintiff paid $250.00 at the Domestic Relations Section and was released. He
was not taken before a judge. On January 8, 2010, the bench warrant was
vacated.

II.

PROCEDURAL HISTORY
On January 5, 2012, the plaintiff filed his original complaint. (Doc. No.

1). Pursuant to this court’s order dated April 26, 2012, (Doc. No. 26), the
plaintiff filed an amended complaint on May 2, 2012. (Doc. No. 38). The
plaintiff’s amended complaint comprises nine counts. Count I alleges civil
rights violations pursuant to 42 U.S.C. §1983 and arising under the Fourth,
Fifth and Fourteenth Amendments against the Luzerne County Defendants.
Specifically, Count I alleges: an unreasonable search and seizure; a
deprivation of his liberty without due process; a deprivation of his property
without due process; excessive force; false arrest; and, a governmental taking
without just compensation. Count II raises claims of failure to implement
appropriate policies and procedures against Defendant James Davis, Director
of the Domestic Relations Section and Kevin James, Deputy Director of the
Domestic Relations Section. Count III again raises a claim of false arrest
5

against Defendants Biscotto, Austin, Para and Tigue. Count IV alleges a
deprivation of property without due process of law in violation of the Fifth and
Fourteenth Amendments against the Luzerne County Defendant, with the
exception of Defendant Kane. Count V alleges malicious prosecution against
all defendants both under §1983 and as pendant state law claims. Count VI
again alleges false arrest against Defendants Biscotto, Austin, Para and
Tigue also under §1983 and as pendant state law claims. Count VII raises
§1983 claims and pendant state claims for false imprisonment against all
defendants. Count VIII is a pendant state law claim for intentional infliction of
emotional distress against Defendant von Schmeling. Count IX alleges a civil
conspiracy against all named defendants.
On May 11, 2012, Defendant von Schmeling filed a motion to dismiss,
(Doc. No. 42), and brief in support, (Doc. No. 43). On May 15, 2012, the
remaining defendants filed their motion to dismiss, (Doc. No. 44). On May 21,
2012, the defendants filed a brief in support, (Doc. No. 46), and an appendix
of exhibits, (Doc. No. 47). On May 28, 2012, the plaintiff filed a brief in
opposition to Defendant von Schmeling’s motion to dismiss, (Doc. No. 48). On
June 7, 2012, the plaintiff filed a brief in opposition to the motion to dismiss
filed by the remaining defendants, (Doc. No. 52). On June 21, 2012, the
defendants filed a brief in reply, (Doc. No. 55).

6

III.

STANDARD OF REVIEW
The defendant’s motion to dismiss is brought pursuant to the provisions

of Fed. R. Civ. P. 12(b)(6). This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts” language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
be sufficient to “raise a right to relief above the speculative level.” Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence” of
necessary elements of the plaintiff’s cause of action. Id. Furthermore, in order
to satisfy federal pleading requirements, the plaintiff must “provide the
grounds of his entitlement to relief,” which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544,
127 S. Ct. at 1964-65).
7

In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).

IV.

DISCUSSION
The plaintiff raises nine separate counts in his amended complaint. The

plaintiff alleges violations arising under §1983 in addition to separate and
distinct claims arising under specific constitutional provisions; however, §1983
does not provide a separate basis for civil rights claims. Rather §1983
provides a private cause of action for violations of constitutionally protected
rights by individuals acting under the color of state law. See Kopec v. Tate,
8

361 F.3d 772, 775-76 (3d Cir. 2004). As such, the court will examine each of
the plaintiff’s substantive allegations of constitutional deprivations under
§1983, but will not address each repetitive claim individually. To the extent the
plaintiff attempts to bring separate claims based solely on liability arising from
§1983, such claims will be dismissed.

A. Immunity
I. Absolute Immunity
The Luzerne County Defendants argue that their quasi-judicial roles as
members of the Domestic Relations Section entitle them to absolute immunity
from suit with regard to the plaintiff’s §1983 claims. In support of their claim
of absolute immunity, the Luzerne County Defendants offer case law in which
members of Domestic Relations Section within this district have been entitled
to absolute immunity because they perform discretionary functions that are
judicial in nature. For example, in Concert v. Luzerne County Dep’t of Children
& Youth, 2010 WL 2505685 (M.D.Pa. June 15, 2010), the court found the
members of the Domestic Relations Sections were entitled to immunity when
a plaintiff attempted to challenge their decisions regarding the custody of the
plaintiff’s child. In Slawek v. White, 1992 WL 68247 (E.D.Pa. Mar. 25, 1992),
the court held that a Domestic Relations employee who continued prosecution
of paternity and support claims despite an automatic stay in the plaintiff’s
9

bankruptcy petition was entitled to immunity. In addition, the defendants cite
Snyder v. Snyder, 2012 WL 512003 (M.D.Pa. Jan. 24, 2012), adopted by
Snyder v. Snyder, 2012 WL 511993 (M.D.Pa. Feb. 15, 2012), to support their
contention that the Domestic Relations Section is, as a whole, protected by
absolute immunity.
The court finds the case law unpersuasive in light of the allegations in
the instant case. Each case cited by the Luzerne County Defendants involves
a member of the Domestic Relations Section who was either making
decisions regarding child custody or prosecuting related proceedings. Such
actions are properly insulated against collateral attacks by unsuccessful and
disappointed litigants. In the instant case, however, allegations that members
of the Domestic Relations Sections improperly arrested the plaintiff pursuant
to a faulty warrant does not evoke the same concern over the necessary
separation of litigants and judicial officers. Moreover, at this stage it is unclear
as to what role each defendant may have played in procuring the warrant.
Therefore, none of the defendants is entitled to absolute immunity at this
stage in the proceeding.

ii. Qualified Immunity
In the alternative, the defendants argue that they are entitled to qualified
immunity with respect to the plaintiff’s §1983 claims. The doctrine of qualified
10

immunity provides that government officials performing “discretionary
functions,” are shielded from suit if their conduct did not violate a “clearly
established statutory or constitutional right[ ] of which a reasonable person
would have known.” Wilson v. Layne, 526 U.S. 603, 609 (1999); Saucier v.
Katz, 533 U.S. 194, 200-01 (2001). Qualified immunity provides not only a
defense to liability, but “immunity from suit.” Hunter v. Bryant, 502 U.S. 224,
227 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The qualified
immunity analysis requires the court to consider whether the official's acts
violated a constitutional or statutory right and, if so, whether that right was
clearly established at the time of the violation. Id. (citing Yarris v. County of
Del., 465 F.3d 129, 140-41 (3d Cir. 2006)). At this stage, the record does not
support finding that any of the defendants are entitled to qualified immunity.
The plaintiff has alleged that he was arrested pursuant to an invalid warrant
which, if true, would be a violation of a clearly established constitutional right.
As such, the defendants are not entitled to qualified immunity at this time.

iii. Sovereign Immunity for State Law Claims
Finally, the Luzerne Count Defendants argue that each is entitled to
sovereign immunity for the plaintiff’s pendant state law claims of false arrest,
false imprisonment and malicious prosecution. Generally, the doctrine of
sovereign immunity bars claims for state law torts against "the
11

Commonwealth, and its officials and employees acting within the scope of
their duties." 1 Pa.C.S. §2310. The statute further provides that such parties
"shall continue to enjoy sovereign immunity and official immunity . . . unless
the General Assembly shall specifically waive immunity". 1 Pa.C.S. §2310;
see Larsen v. State Employees' Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa.
2008). In Pennsylvania, sovereign immunity applies to Commonwealth
employees in both their official and individual capacities. See Larsen, 553
F.Supp.2d at 420.
The Pennsylvania General Assembly has only waived sovereign
immunity in certain prescribed circumstances. See 42 Pa.C.S. §8522(b). The
nine exceptions to the rule of immunity provided for in the Code all arise out
of negligent acts.2 Id. The Luzerne County Defendants correctly argue that
the plaintiff’s claims do not fall in to any of these narrow categories. Moreover,
the defendants correctly state the Pennsylvania standard for determining
whether conduct occurred within the scope of one’s employment, finding
employment is within the scope if: (1) it is the kind the employee is employed
to perform; (2) it occurs substantially within the authorized time and space
2

The nine categories for which sovereign immunity will not apply are:
(1) vehicle liability; (2) medical professional liability; (3) care custody or control
of personal property; (4) Commonwealth real estate, highways and sidewalks;
(5) potholes and other dangerous conditions; (6) care, custody, or control of
animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids
and vaccines. See 42 Pa.C.S. § 8522(b).
12

limits; and (3) it is actuated, at least in part, by a purpose to serve the master.
See Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000)(quoting
RESTATEMENT (SECOND) OF AGENCY §228). Here, the actions of the Luzerne
County Defendants all appear to be of the type for which they are employed,
occurred during the normal time of employment and, though allegedly
performed in error, were performed with the purpose of serving their
respective masters. Therefore, to the extent that the plaintiff alleges liability
against the Luzerne County Defendants for pendant state law claims, each
is entitled to sovereign immunity. As such, state law claims against each of
the Luzerne County Defendants in their official and individual capacities will
be dismissed.

B. Fifth Amendment Claims
The defendants argue that any alleged violations of Fifth Amendment
to the United States Constitution must fail because the plaintiff has not named
any federal officials as defendants. The court agrees. See Kelly v. Borough
of Sayreville, N.J., 107 F.3d 1073, 1076 (3d Cir. 1997) (due process claim
against state official is analyzed under the Fourteenth, rather than the Fifth,
Amendment); Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000). As
such, with regard to his Fifth Amendment claims, the plaintiff has failed to
properly state a claim. Therefore, any claims that the defendants violated the
13

plaintiff’s Fifth Amendment rights will be dismissed.

C. General Fourteenth Amendment Claims
The defendants argues that any duplicative Fourteenth Amendment due
process claims should be dismissed. The court agrees. The Third Circuit has
explained that “if a constitutional claim is covered by a specific constitutional
provision, such as the Fourth or Eighth Amendment, the claim must be
analyzed under the standard appropriate to that specific provision, not under
the rubric of substantive due process.” Betts v. New Castle Youth Dev. Ctr.,
621 F.3d 249, 260 (3d Cir. 2010) (citing United States v. Lanier, 520 U.S. 259,
272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). Here, the plaintiff’s
allegation arise from his allegedly improper arrest. This claim of improper
arrest and the related claims of false imprisonment and malicious prosecution
are properly analyzed under the Fourth Amendment. Consequently, the
plaintiff's substantive due process claims will be dismissed under the
"more-specific-provision rule." See Betts, 621 F.3d at 261.
In addition, Count I of the plaintiff’s amended complaint makes general
procedural due process claims, which will also be dismissed. As explained
above, the plaintiff’s claims are clearly premised on alleged Fourth
Amendment violations. “[A]s the gravamen of his lawsuit is so clearly
premised on a First and/or Fourth Amendment violation based upon his
14

alleged malicious prosecution and arrest without probable cause, the Court
will dismiss the procedural due process claim along with the substantive due
process claim.” Swedron v. Borough, 2008 WL 5051399, *6 (W.D. Pa. Nov.
21, 2008) (citing Merkle v. Upper Dublin School Dist., 211 F.3d 782, 792-93
(3d Cir. 2000)).
The plaintiff makes a specific due process claim in Count IV of his
amended complaint alleging that he was improperly forced to pay $250.00
before he was released, but was never afforded a hearing. This specific claim,
for which no more-specific-provision exists, will be discussed below.
Therefore, the plaintiff’s generalized allegations of Fourteenth
Amendment substantive and procedural due process violations related to his
alleged false arrest, false imprisonment and malicious prosecution will be
dismissed.

D. Specific Fourteenth Amendment Deprivation of Property Claim
Count IV of the plaintiff’s amended complaint alleges a violation of due
process under the Fourteenth Amendment. Specifically, the plaintiff alleges
that he was improperly forced to pay $250.00 to secure his release from
custody without due process of law. Unlike the general due process claims
which are subsumed by other constitutional claims under the more-specificprovision rule, this claim must be evaluated under the Fourteenth
15

Amendment. The Luzerne County Defendants argue the plaintiff was afforded
due process during the hearings which established the amount of child
support to be paid. (Doc. No. 46 at 33). They argue that the hearing process
was the proper forum to dispute the amount and that current action merely
seeks to challenge the settled court order. Moreover, the Luzerne County
Defendants argue that the court should not rule on what amount of support
was owed because it would violate the Rooker-Feldman doctrine.3
The court finds that the Luzerne County Defendants’ arguments are not
properly aligned with the plaintiff’s due process challenge in this case. The
plaintiff asserts that his arrest was predicated on a warrant issued for failure
to appear. During his arrest and transport he was told that he was arrested for
failure to pay child support. He was then released after paying the alleged
deficiency in his support payments. The issue is not whether he paid the
correct amount. Rather, the issue is whether a deprivation occurred when he
was arrested on a warrant for his failure to appear, not taken before a judge
3

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983). In Rooker, the United
States Supreme Court held that lower federal courts may not hear claims
actually decided by a state court, as district courts have no appellate
jurisdiction. Rooker, 263 U.S. at 416. The Supreme Court extended this
holding in Feldman, explaining that a federal district court lacks jurisdiction
over any claims that are "inextricably intertwined" with a state court judgment.
Feldman, 460 U.S. at 482.

16

and then released upon paying child support obligations. The court is
therefore not ruling on intertwined questions of law related to Pennsylvania
family law, but rather on the procedural due process afforded to the plaintiff
after his arrest for failure to appear. Therefore, with respect to the due
process claim alleged in Count IV, the Luzerne County Defendants’ motion
will be denied.

E. Supervisor Liability
Count II of the plaintiff’s amended complaint alleges that Defendant
James Davis, Director of the Domestic Relations Section, and Kevin Kane,
Deputy Director of the Domestic Relations Section are liable under §1983
because they “implicitly or explicitly adopted and implement careless and
reckless policies, customs or practices.” (Doc. No. 38 at 16). In addition, the
plaintiff alleges that these defendants’ failure to train and supervise other
members of the section led to his unlawful arrest. To state a claim under
§1983, the plaintiff must show that the supervisory defendants, acting under
color of state law, deprived him of a right secured by the Constitution or laws
of the United States. 42 U.S.C. §1983; Morse v. Lower Merion School Dist.,
132 F.3d 902 (3d Cir. 1997); see also Maine v. Thiboutot, 448 U.S. 1 (1980).
Liability under §1983 is personal in nature and can only follow personal
involvement in the alleged wrongful conduct shown through specific
17

allegations of personal direction or of actual knowledge and acquiescence in
the challenged practice. See Robinson v. City of Pittsburgh, 120 F.3d 1286
(3d Cir. 1997). “Allegations of participation or actual knowledge and
acquiescence, however, must be made with appropriate particularity.” Rode
v. Dellarciprete, 845 F. 2d 1195, 1207 (3d Cir. 1988). See also Evancho v.
Fisher, 423 F.3d 347, 353 (3d Cir. 2005). The mere assertion “that the
constitutionally cognizable injury would not have occurred if the superior had
done more than he or she did” is insufficient to establish liability. Sample v.
Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). Likewise, a supervisor's mere
failure to train, supervise or discipline subordinates does not state a basis for
a §1983 claim against the supervisor absent proof of direct participation by
the superior in some unlawful conduct. See Williams v. Bickell, 2012 WL
5379185, *5 (M.D.Pa. Oct. 31, 2012)(citing Brown v. Grabowski, 922 F.2d
1097, 1119-20 (3d Cir. 1990)). Moreover, a municipality is not liable for merely
employing someone who violates a person's civil rights; rather, a municipality
that does not directly violate a person's civil rights is liable only where it has
in place a policy or custom that led to the violation. See Park v. Veasie, 720
F.Supp.2d 658, 667 (M.D. Pa. 2010) (citing Monell v. New York City Dep't of
Soc. Servs., 436 U.S. 658, 689 (1978)). This rule ensures that a municipality
will only be liable where it is the "moving force" behind the plaintiff's injury. Id.
The plaintiff bears the burden of identifying the policy or custom. Id.
18

Here, the plaintiff alleges that Defendants Davis and Kane supervisory
failures allowed the other defendants to be overcome by pressure from
Defendant von Schmeling to carry out an illegal arrest. The plaintiff does not
offer evidence of direct personal involvement of Defendants Davis or Kane
with respect to the allegedly illegal arrest. The plaintiff has also failed to
identify a policy which is a “moving force” behind his allegedly improper arrest.
As a §1983 claim cannot survive solely on the grounds of supervisor liability,
Count II of the plaintiff’s amended complaint will be dismissed.

F. Excessive Force
As part of Count I of his amended complaint, the plaintiff alleges that
defendants who arrested him used excessive force. The Fourth Amendment
prohibits a police officer from using more force than necessary to effect an
arrest. See Estate of Smith v. Marasco, 318 F.3d 497, 515 (3d Cir. 2003)
(citing Abraham v. Raso, 183 F.3d 279, 288 (3d Cir.1999)). The test of
whether an officer’s use of force was excessive force is the reasonableness
of the officer’s actions under the totality of the circumstances at the time of
the arrest and irrespective of the officer’s good or bad motives. See Graham
v. Connor, 490 U.S. 386, 397 (1989); Kopec v. Tate, 361 F.3d 772, 776 (3d
Cir. 2004). The Fourth Amendment protects against the use of excessive
force in making an arrest; however, an officer does have "the right to use
19

some degree of physical coercion or threat thereof to effect [an arrest]."
Fisher v. Matthews, 792 F. Supp. 2d 745, 775 (M.D. Pa. 2011)(citing Graham,
490 U.S. at 396; see also Mierzwa v. United States, 282 Fed.Appx. 973, 979
(3d Cir.2008).
Here, the plaintiff argues that his arrest was improper, but fails to give
color to any claim that any defendant used excessive force in effecting the
arrest. The plaintiff asserts that he cooperated with the defendants and his
sole allegation of physical contact was the placement of handcuffs on his
wrists. The plaintiff does not allege that the handcuffs were too tight or caused
him pain or physical injury. See, e.g., Kopec, 361 F.3d at 777 (arrestee
repeatedly requested to have handcuffs loosened and suffered permanent
nerve damage to wrist). The minimal physical coercion of placing the plaintiff
in handcuffs for transport is insufficient to support a claim of excessive force
under the Fourth Amendment. As such, the plaintiff's excessive force claim
will be dismissed.

G. Claims Against Defendant von Schmeling
I. Intentional Infliction of Emotional Distress
The Pennsylvania Supreme Court has not yet recognized the tort of
intentional infliction of emotional distress (“IIED”), but the Superior Court has
and the Third Circuit has predicted that the Supreme Court would adopt the
20

RESTATEMENT (SECOND)

OF

TORTS § 46, which provides, “[o]ne who by

extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress.”
Clark v. Township of Falls, 890 F.2d 611, 622-23 (3d Cir. 1989) (citing
Kazatsky v. King David Mem’l Park, Inc., 515 Pa. 183 (1987)). Outrageous or
extreme conduct is behavior so outrageous or so extreme as to go “beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in civilized society.” Cox v. Keystone Carbon Co., 861 F.2d 390,
395 (3d Cir. 1988); Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa.Super. 2005)
(internal citation omitted).
In Count VIII of his amended complaint the plaintiff alleges that
Defendant von Schmeling manipulated the Domestic Relations Section and
procured his public arrest with the clear intent of causing emotional distress
to the plaintiff. (Doc. No. 38 at 26). In her motion to dismiss and supporting
brief, Defendant von Schmeling denies the allegations and asserts that the
plaintiff has failed to state a claim. Defendant von Schmeling, however, offers
no case law to support her contention that the factual basis for the plaintiff’s
claim necessarily fails to meet the Pennsylvania standard for IIED. Therefore,
at this stage of the proceeding the court will not dismiss the claim.

21

ii. Malicious Prosecution
Count V of the plaintiff’s amended complaint alleges a §1983 and state
law claims for malicious prosecution claim against all of the defendants.
Defendant von Schmeling asserts that the plaintiff’s claim must fail with
respect to her because she is a private individual. A private citizen can be
liable for malicious prosecution, however, if she “procured the prosecution ...
by giving knowingly false information to a public official that leads to the
initiation of proceedings.” Pellegrino v. U.S. Transp. Sec. Admin., 855 F.
Supp. 2d 343, 358 (E.D. Pa. 2012); see also Wiltz v. Middlesex County Office
of Prosecutor, 249 F. App'x 944, 950 (3d Cir. 2007)(evaluating malicious
prosecution claim against private defendants). Therefore, Defendant von
Schmeling’s contention that the plaintiff’s claim is flawed because she is a
private individual will not sustain her motion to dismiss with respect to this
claim, at this stage of the proceedings.

iii. False Imprisonment
Count VII of the plaintiff’s amended complaint alleges false
imprisonment under §1983 and Pennsylvania state law against all defendants.
Defendant von Schmeling argues that the plaintiff has failed to allege a
sufficient factual basis for a claim of false imprisonment against her. The court
agrees. Under Pennsylvania law, there are two elements to a claim of false
22

imprisonment: (1) the detention of another person; where (2) such detention
is unlawful. See Sershen v. Cholish, 2007 U.S. Dist. LEXIS 79627, at *28
(M.D. Pa. Oct. 26, 2007). Here, the plaintiff has not alleged that Defendant
von Schmeling was present at the time of his arrest or that she was physically
involved in his detention in anyway. Therefore, he will be unable to prove an
essential element of his claim and any claim, for false imprisonment, against
Defendant von Schmeling must be dismissed.

V.

CONCLUSION
The plaintiff’s amended complaint asserts multiple causes of action

spread and repeated over nine counts. In turn, the two motions to dismiss
seek dismissal of some, but not all, of the plaintiff’s claims. Therefore, the
court will dismiss the claims as follows.
Each of the following claims will dismissed in its entirety. The plaintiff’s
Fifth Amendment claims will be dismissed against all defendants. Count II of
the plaintiff’s amended complaint will be dismissed. The plaintiff’s claim of
excessive force against the arresting officers will be dismissed. The plaintiff’s
claims of false arrest, false imprisonment and malicious prosecution arising
under Pennsylvania law are dismissed with respect to all of the Luzerne
County Defendants on the basis of sovereign immunity. With respect to
Defendant von Schmeling, the claims of false imprisonment under §1983 and
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state law will be dismissed.
Dismissal is also appropriate for the plaintiff’s repetitive and duplicative
claims. As such, to the extent the plaintiff raises separate and independent
claims arising solely under §1983, such claims will be dismissed. In addition,
to the extent that the plaintiff alleges violations under the Fourteenth
Amendment where a more specific constitutional provision controls, the
Fourteenth Amendment claims will be dismissed. Surviving at this stage of the
proceedings are the plaintiff’s substantive claims for deprivations of his
constitutionally and federally protected rights, as brought via the private cause
of action provided for by 42 U.S.C. §1983, which have not been otherwise
dismissed by this memorandum and subsequent order.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: January 28, 2013
O:\Mannion\shared\MEMORANDA - DJ\2012 MEMORANDA\12-0020-01.wpd

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