Mawson v. Pittston City Police Department et al

Filing 33

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 7/28/14. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT WILLIAM MAWSON, SR., :
:
Plaintiff

CIVIL ACTION NO. 3:13-1714
:

v
:
THE PITTSTON POLICE DEPT.,
et al.,
Defendants

(MANNION, D.J.)
(SCHWAB, M.J.)

:
:

MEMORANDUM
This case arises out of two separate incidents between Mr. Robert
Mawson, Sr., the plaintiff, and two Pittston City police officers. The first
occurred on June 15, 2013, when Pittston Police Officer Kyle Shumosic
received complaints about Mr. Mawson threatening to beat-up his daughter.
Officer Shumosic sought a warrant for his arrest and put out a “be on the
lookout” radio call to other officers, claiming that Mr. Mawson was armed and
dangerous. He was later charged based on those threats and found guilty of
disorderly conduct after a summary trial.1 After the June 15 incident, but prior

1

The court takes judicial notice of the plaintiff’s conviction as it is part of
a public record and the plaintiff filed a transcript from the summary trial where
he was found guilty in conjunction with this complaint. (Doc. 11). Southern
Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Groups Ltd., 181
F.3d 410, 426-27 (3d Cir. 1999). The plaintiff was found guilty of disorderly
conduct and ordered to pay a fine of $300.00. (Doc. 11); Commonwealth of
Pennsylvania v. Robert Mawson, MJ-11104-NT-0000546-2013, Luzerne
County Magistrial District Court (July 17, 2013)(Kravitz, M.D.J.). The docket

to his trial and conviction, Mr. Mawson had an encounter with Pittston Police
Officer Sam DeSimone when he was leaving a bar. Mr. Mawson claims the
officer quickly drove up to his car, blocked his vehicle, ordered him to empty
his pockets, and demanded he provide identification so he could run a warrant
check. After the warrant check came back negative, Mr. Mawson was allowed
to leave. He claims this stop occurred because he had a pending civil suit
against Pittston City.
Mr. Mawson alleges a variety of claims against the Pittston Police
Department and several officers, including violations of his fourth amendment
rights and reputational harm stemming from the broadcast that he was “armed
and dangerous” pursuant to 42 U.S.C. §1983, along with a state-law
defamation claim for that same broadcast and other statements of Officer
Shumosic. Judge Schwab issued a report recommending only Mr. Mawson’s
fourth amendment claim against Officer DeSimone be allowed to proceed.
The report further recommends that all of the other defendants and claims be
dismissed. The court agrees that Mr. Mawson has failed to allege any
personal involvement on behalf of the other defendants in the fourth

from the plaintiff’s case is available for public access via the Unified Judicial
S y s t e m
P e n n s y l v a n i a
W e b
P o r t a l
a t
http://ujsportal.pacourts.us/DocketSheets/MDJ.aspx.
2

amendment claim and also failed to state a harm to reputation claim. Those
claims will be DISMISSED WITH PREJUDICE. The court further declines to
exercise supplemental jurisdiction over his state law defamation claim. In
sum, Judge Schwab’s report and recommendation will be ADOPTED IN
FULL.

I.

FACTUAL BACKGROUND
The plaintiff alleges that his relationship with his ex-wife has been

acrimonious. They have fought over custody of their daughter for over 14
years and his ex-wife has filed protection from abuse orders (PFAs) against
him. (Doc. 1). The first encounter between the plaintiff and officers from the
Pittston Police Department started sometime on June 15, 2013 when the
plaintiff’s ex-wife reached out to Officer Shumosic, a defendant in this suit.
(Doc. 9, 12). She allegedly told him that she received a call at around 4:00 PM
informing her that the plaintiff was driving around the area of Drummond
Street and Parsonage Street, looking for their daughter. The caller also
reported that the plaintiff claimed he was going to “beat the shit out of” their
daughter. (Doc. 12). Further, two other friends reported they heard the plaintiff
make threats against her in that same area. Their daughter was not in the
3

area of Drummond or Parsonage Streets while the plaintiff was making these
threats. (Id.).Their daughter also had an active PFA against her father, the
plaintiff at that time. (Doc. 11).
Officer Shumosic contacted one of the daughter’s friends (“Friend 1”)
so he could hear her version of the events. According to her, the plaintiff
stopped on Drummond Street and asked where his daughter was. The friend
said she did not know and the plaintiff continued driving down the street and
spoke to other neighbors. Officer Shumosic reached out to another friend
(“Friend 2") who also came to the police station. She reported that the plaintiff
was driving a white pick-up truck erratically down Parsonage Street
approximately 14 or 15 times. He then stopped and spoke with Friend 2 and
asked if she knew where his daughter was. She responded that she did not
know who he was talking about and he replied, “If I see her up the manor2
again, I’m going to beat the shit out of her.” Before coming to the police
station, Friend 2 learned that the man in the white pick-up was the plaintiff.3
Officer Shumosic then attempted to get in touch with the plaintiff by
2

Although it is unclear from the complaint, it appears the plaintiff was
referring to the area around “The Pittston Manor,” a retirement home in
Pittston.
3

These facts come from the plaintiff’s own exhibits, including an affidavit
of probable cause filled out by Officer Shumosic. (Doc. 12).
4

going to his mother’s house. The police did seek an arrest warrant, but it is
unclear from the complaint whether one was issued. When they arrived at his
mother’s home, they claimed to have a warrant. (Doc. 10). The plaintiff’s
mother alleges the police informed her that the plaintiff went into a woman’s
house with a gun looking for his daughter.
The plaintiff claims that after collecting the reports from his ex-wife and
other alleged witnesses, Pittston police officers and Pennsylvania State Police
Troopers went on a desperate search for him. The plaintiff has attached an
affidavit from a witness who states she heard the Pittston police broadcast a
warning that he was armed and dangerous while this search was ongoing.
(Doc. 10). This witness called the plaintiff and informed him of the broadcast.
(Doc. 10). The plaintiff also avers that State Police Troopers and Officer
Shumosic drove to the plaintiff’s home in Wayne County looking for him.
While there, he claims they spoke to several of his neighbors. He alleges that
these officers asked the neighbor if he had ever observed the plaintiff
shooting a gun and asked how he was as a neighbor. The plaintiff asserts that
this neighbor called him and warned him that the police were acting strange.
After speaking with this neighbor and hearing about the “armed and
dangerous” broadcast, the plaintiff alleges that he was in fear of being shot

5

by the police. (Doc. 1).
At some point, the plaintiff’s mother went to the police station and spoke
with Officer Moyer, also a defendant in this case. In sum, the plaintiff’s mother
told police her son was not armed and that he should be given a chance to tell
his side of the story. The plaintiff’s mother alleges that the police ignored her
request, even when she had an individual named “Eddie” on her cell phone,
who was with the plaintiff at the time. According to his mother, Officer Moyer
asked to speak with the plaintiff, but it is unclear whether they spoke. When
she left the police station, the plaintiff’s mother received a call from a friend
warning her that the police had just broadcast that the plaintiff was “armed
and dangerous” over the radio. She then called her son and told him about
the police broadcast. He was shocked and said that the witnesses against
him were lying. (Doc. 10).
It is unclear whether the plaintiff was ever arrested or how the
“desperate search” for him concluded, but a criminal complaint was issued on
June 17, 2013 charging the plaintiff with terroristic threats in violation of 18
Pa.C.S.A. §2706. A summary trial was held on July 17, 2013 before the

6

Honorable Alexandra Kokura Kravitz, Pennsylvania Magistrial District Judge.4
During the trial, Friend 1 testified and said she was with Friend 2 at the time
they encountered the plaintiff driving around Drummond Street. She
specifically said she heard the plaintiff threaten to “beat the shit out” of his
daughter if she was at “the manor” again. (Doc. 11). During this trial, Friend
2 was unavailable, but Officer Shumosic said she would be available if the
case was to go to trial on another date. The plaintiff claims that Officer
Shumosic made-up this person. The plaintiff’s ex-wife and Officer Shumosic
also testified during this trial. At the conclusion, the judge dismissed the
charge of terroristic threats, but found the plaintiff guilty of disorderly conduct.
(Doc. 10); fn. 3, supra.
The second encounter between the plaintiff and Pittston police officers
occurred approximately two weeks after the incident described above. On
June 28, 2013, the plaintiff was at a bar on Main Street in Pittston. As he was
leaving the bar, he saw a friend who allegedly asked him for $2.00. The
plaintiff claims he reached into his pocket, took out $2.00, and gave it to his
friend. After this exchange, he avers that he then continued walking toward

4

Commonwealth of Pennsylvania v. Robert Mawson, MJ-11104-NT0000546-2013, Luzerne County Magistrial District Court (July 17,
2013)(Kravitz, M.D.J.).
7

his car that was parked just in front of the bar. The plaintiff alleges that an
unmarked car with its lights on then stopped directly behind his car, plaincloths Officer DeSimone exited, approached the plaintiff, and ordered him to
empty his pockets. The plaintiff refused and said that the officer was only
bothering him because of his civil lawsuit against Pittston. The plaintiff further
claims that his car was blocked by Officer DeSimone’s unmarked police
cruiser. (Doc. 9).
After this initial refusal, the officer again ordered the plaintiff to empty
his pockets. The plaintiff objected and did not comply with the officer’s second
order. Officer DeSimone then called for back-up. The plaintiff claims he was
afraid what would happen when back-up arrived, so he removed his wallet
from his pocket and showed the contents to Officer DeSimone. The plaintiff
alleges the officer then ordered him to produce his identification so could “run
a warrant check on [him].” While Officer DeSimone was completing the
warrant check, back-up arrived and the police ordered various bystanders
back into the bar. After finding the plaintiff had no active warrants, he was
allowed to go back into the bar. He remained in the bar for fifteen minutes
before leaving. (Doc. 1).

8

II.

PROCEDURAL BACKGROUND
The plaintiff filed his initial complaint against the Pittston Police

Department, Officers DeSimone, Shumosic, and Moyer, Sargent Murphy, and
Police Chief Powers on June 24, 2013. (Doc. 1). Judge Schwab granted the
plaintiff’s motion to file an amended complaint, (Doc. 8), and the plaintiff filed
his first amended complaint on October 9, 2013. (Doc. 9). Along with that
complaint, the plaintiff filed three affidavits, several documents from the
Pittston Police Department, and a transcript from his summary trial in July
2013. (Doc. 10, 11, 12).
The defendants jointly filed a motion to dismiss and brief in support on
October 24 and 29, 2013, respectively. (Doc. 13, 15). The plaintiff filed his
brief in opposition on November 14, 2013, (Doc. 18), and the defendants filed
their reply brief approximately three weeks later. (Doc. 20). The plaintiff filed
a sur reply brief (titled: “Plaintiff’s Objection Response to the Defendants’
Reply Brief”) on December 9, 2013. (Doc. 21). Judge Schwab filed a report
and recommendation on June 4, 2013, (Doc. 23), to which the plaintiff, (Doc.
24), and defendants, (Doc. 27), have timely filed objections. The defendants
and the plaintiff have filed briefs in opposition to the opposing party’s
objections, respectively. (Doc. 28, 29, 30). The issues are now ripe for the
9

court’s ruling.

III.

STANDARD OF REVIEW
A. The Report and Recommendation
When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
10

recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.
B. Rule 12(b)(6) Motion to Dismiss
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

11

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).
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).

12

Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver,
213 F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is
justified only on the grounds of bad faith, undue delay, prejudice, or futility.”
Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

IV.

DISCUSSION
A. The Pittston Police Department
The plaintiff asks this court to reconsider Judge Schwab’s

recommendation that the Pittston Police Department be dismissed because
of an “inadequacy of police training.” (Doc. 24, p. 3). It is well established that
“a municipality cannot be held liable solely because it employs a tortfeasor –
or, in other words, a municipality cannot be held liable under §1983 on a
respondeat superior theory.” Monell v. Dep't of Soc. Services of City of New
York, 436 U.S. 658, 691 (1978); Grayson v. Mayview State Hosp., 293 F.3d
103 (3d Cir. 2002). Therefore, a municipal defendant “can only be liable when
the alleged constitutional violation implements or executes a policy, regulation
13

or decision officially adopted by the governing body or informally adopted by
custom,” better known as Monell liability. Para v. City of Scranton, 2008 WL
2705538, *17 (M.D. Pa. July 10, 2008) (citing Monell, 436 U.S. at 694).
Moreover, “[t]o establish that a policy is in violation of the constitution, a single
incident by a municipal employee is insufficient to establish that an official
custom or practice caused the alleged constitutional violation.” Para, 2008 WL
2705538, at *19 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822, (1985)).
“Failure to adequately screen or train municipal employees can ordinarily be
considered deliberate indifference only where the failure has caused a pattern
of violations.” Berg v. County of Allegheny, 219 F.3d, 261 (3d Cir. 2000)(citing
Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 408-09
(1997)).
As noted in Judge Schwab’s report, a police department is merely an
arm of a local municipality and cannot be sued for constitutional violations
under §1983 based on a theory of respondeat superior. Padilla v. Township
of Cherry Hill, 110 F.App’x 272, 278 (3d Cir. 2004). Therefore, the plaintiff
must demonstrated the department’s failure to train caused a pattern of
constitutional violations to establish Monell liability. No such pattern has been
alleged. Although the plaintiff argues that the two incidents demonstrate a

14

pattern of antagonism toward him, they are insufficient to show a deliberate
or conscious choice by the Pittston Police Department5 to enact an official
policy or practice that would likely result in constitutional violations. One
alleged incident involved an officer seeking a complaint that ended with the
plaintiff’s conviction, while the other was a brief seizure by a different officer.
The plaintiff’s involvement in both is the only common thread. He has failed
to establish a §1983 Monell failure-to-train claim against the Pittston Police
Department and it is DISMISSED WITH PREJUDICE from this action.
B. The Fourth Amendment Claim
The court will first deal with all of the remaining defendants other than
Officer DeSimone. A plaintiff must either allege an individual’s “personal
involvement” in the constitutional violations or, in the case of supervisory
liability, that the supervisor personally directed the action or had actual
knowledge and acquiesced to such activity. Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005)(citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir.1988)). The plaintiff’s fourth amendment violation stems from an
interaction with Officer DeSimone. There are no allegations or facts that could

5

The court assumes without deciding that the Pittston Police
Department is a policy making body for the City of Pittston and had the
authority to create official police policy on behalf of the city.
15

implicate the other defendants. There is nothing before the court to show they
directed Officer DeSimone to take such action or even knew about it. Further,
assuming that Sargent and Chief Powers were Officer DeSimone’s
supervisors, respondeat superior is not a proper vehicle for liability under
§1983.6 Id. Given there are no averments as to implicate Officers Shumosic
and Moyer, Sargent Murphy, or Chief Powers, the fourth amendment claims
against them will be DISMISSED WITH PREJUDICE.
Turning to Officer DeSimone, the court must determine whether a
seizure occurred and, if one did occur, when the plaintiff was seized for fourth
amendment purposes. The defendants claim that the encounter was not a
seizure and argue that asking for a license does not constitute a seizure, that
the plaintiff could have left the encounter at any time, and the interference
was a de minimis constitutional violation. The court disagrees, at this stage
of the litigation, with each of these assertions.
Generally, warrantless seizures are per se unreasonable under the
fourth amendment. Carman v. Carroll, 749 F.3d 192, 200 (3d Cir.

6

The plaintiff alleges that there is a “pattern” arising from both of these
encounters. The court finds there is no evidence to show how these two
incidents were connected or interrelated in any manner. The defendant
alleges that he was seized because he filed this lawsuit, but the filing of a civil
complaint is distinct from the events giving rise to such a complaint.
16

2014)(quoting United States v. Williams, 413 F.3d 347, 351 (3d Cir.2005)). A
seizure occurs when an officer uses physical force or an individual submits
to a show of official police authority. U.S. v. Brown, 448 F.3d 239, 245 (3d Cir.
2006)(citing California v. Hodari D., 499 U.S. 621, 626 (1991)). When an
officer conducts a brief, investigatory stop, such a limited seizure needs to be
supported by reasonable and articulable suspicion that criminal activity is
afoot and the person seized is involved. Carroll, 749 F.3d at 200. Therefore,
the question is two-fold: (1) when was the plaintiff seized and (2) what
information was available to the officer to justify that seizure.
The plaintiff alleges that Officer DeSimone pulled up in an unmarked car
with its light illuminated, blocked his car, exited, twice demanded that he
empty his pockets, called for back-up, and ordered he provide him ID. The
defendants first contend that Judge Schwab improperly characterized the
evidence when she found that the plaintiff’s car was blocked. (Doc. 27, p. 9).
This argument is without merit. Although the plaintiff’s car may have been
parallel parked, Judge Schwab accurately stated that “at this stage of the
proceedings, we must accept the well-pleaded factual allegations in the
amended complaint as true, and [the plaintiff] alleges that [Officer] DeSimone
blocked his car.” (Doc. 23, p. 13, n.2). The court must accept the plaintiff’s

17

allegation that his car was blocked and that he was unable to drive away.
The defendants further contend that the plaintiff was not prohibited from
“going on his merry way either outside or returning to the bar.” (Doc. 27, p.
10). The defendants improperly characterize the encounter. According to the
complaint, Officer DeSimone demanded the plaintiff “empty his pockets ” and
the plaintiff refused, claiming he was being targeted because of a civil lawsuit
against the Pittston Police Department. The officer again made the same
demand and when the plaintiff refused a second time, he then called for backup. (Doc. 9). First, an initial request for a license is far different from an
immediate order that a civilian empty his pockets. Compare U.S. v. Frost, 999
F.2d 737, 740(3d Cir. 1993)(no seizure where officers asked to speak to
defendant, requested that he provide his identification, and he then agreed to
empty his pockets). Second, the officer was escalating the situation by
making the same demand twice and calling more officers to the scene after
the plaintiff again refused to comply. The argument that the plaintiff was free
to leave by any means is without support given the totality of the
circumstances.
The defendants further contend that an officer can ask for identification
and run a warrant check without implicating the fourth amendment. (Doc. 27,

18

p. 7). In support of their argument, they point this court to a case out of the
Tenth Circuit, U.S. v. Separza-Mendoza, 386 F.3d 953, 960 (10th Cir. 2004).
In that case, police responded to a domestic dispute and, after speaking to
those involved, asked for identification from a person whose car was
damaged. That court held there was no seizure despite the request for the
license being made in a declaratory manner. Id. They specifically noted,
however, that “the fact that the request was made in a declaratory rather than
interrogatory sentence” is relevant in evaluating the totality of the
circumstances. Id. Here, the officer was not approaching the plaintiff as a
potential witness or victim, but immediately upon arrival blocked his car,
approached the plaintiff, and twice demanded he empty out his pockets,
despite plaintiff’s verbal objections. Further, when the plaintiff failed to comply
for a second time, he called for back-up. Once the plaintiff was in compliance,
he then said “Give me your ID. I want to run a warrant check on you.” (Doc.
9). Esparza-Mendoza represents a more casual encounter, while this was an
escalating event. The facts are distinguishable from this case in many
respects. Esparza-Mendoza and its reasoning are neither controlling, nor
persuasive.
Finally, the defendants argue that the plaintiff’s seizure was a de

19

minimis violation of his fourth amendment rights. In support of that argument,
they cite a bevy of cases outside of this circuit and also analogize malicious
prosecutions claims from within this circuit. See, e.g., Haagensen v.
Pennsylvania State Police, 490 F. App'x 447, 453 (3d Cir. 2012)(holding no
seizure in requiring a defendant to attend her trial). The court is not
persuaded by these cases or arguments given the nature of the encounter,
the actions of the officer, and the allegations as to why the officer approached
the plaintiff. For those reasons, the court does not find this was a de
minimis violation. See Kelly v. Rogers, 2012 WL 2153796, *6, n.10 (M.D.Pa.
June 13, 2012)(noting that a de minimis argument could be presented for
fourth amendment violation that lasted a few seconds).
The court agrees with Judge Schwab’s finding that this was not a casual
or consensual encounter, but demonstrates the plaintiff’s submission because
of the police officer’s sudden arrival in a police car with light illuminated, the
blocking of his car, the multiple authoritative orders that the plaintiff empty his
pockets despite his protests, and the call for back-up. In a light most favorable
to the plaintiff, he was seized when he complied with the officer’s order,
emptied his pockets, and showed the contents of his wallet to the officer.
Further, the plaintiff alleges that he exited the bar and gave $2.00 to a

20

friend prior to being approached by the officer. The complaint alleges facts,
accepted as true, that show the officer did not have reasonable suspicion of
criminal activity when the stop occurred. As such, the defendants’ motion is
DENIED insofar as it argues the fourth amendment claims against Officer
DeSimone must be dismissed at this stage.
C. The Harm to Reputation Claim (“Stigma-Plus”)
Although Judge Schwab concluded that the plaintiff failed to state a
constitutional claim for harm to reputation, the court will also dismiss this
claim against Officers DeSimone and Moyer, Sargent Murphy, and Chief
Powers for the same lack of personal involvement discussed in section III(B)
above. There is no allegation that they were in any way involved in
broadcasting the “armed and dangerous” warning over the radio. Further,
there is nothing to demonstrate any of these officers participated in the
procurement of any warrant, the alleged search for the plaintiff, the filing of
the criminal complaint, or final prosecution against the plaintiff. For those
reasons, the harm to reputation claims against Officers DeSimone and
Moyer7, Sargent Murphy, and Chief Powers are DISMISSED WITH

7

Although the plaintiff’s mother claims she had a conversation with
Officer Moyer about the warrant and pursuit of the plaintiff, it appears he was
at the police station while all of these other alleged events were occurring.
21

PREJUDICE.
The only officer who was involved with the alleged broadcast and
prosecution was Officer Shumosic. The plaintiff claims that he has alleged a
proper slander/defamation claim. (Doc. 24, p. 3). The court will construe this
objection broadly to include the §1983 count for harm to reputation.
In order to have a cognizable claim under §1983, a plaintiff must show
some injury beyond a damaged reputation caused by false statements made
publically, better known as the “stigma-plus” test. Machon v. Pennsylvania
Dept. of Public Welfare, 847 F.Supp.2d 734, 747 (E.D.Pa. 2012); Garner v.
Township of Wrightstown, 819 F.Supp. 435, 441 (E.D.Pa. 1993). Assuming
the “stigma” is satisfied through the alleged false statements broadcast
publically by Officer Shumosic, the court must determine whether there is a
“plus,” or other constitutional violation, flowing from those statements. The
additional deprivation must be a loss of some tangible right or interest, such
as termination of public employment. Hill v. Borough of Kutztown, 455 F.3d
225, 237 (3d Cir. 2006). If the false information disseminated by a police
officer leads to a loss of fourth amendment rights, such as an unlawful seizure

Beyond this discussion, there are no allegations that either involve Officer
Moyer directly or could circumstantially imply his involvement.
22

or prosecution, it would satisfy the “plus” necessary to state a claim. See
Rehberg v. Paulk, 611 F.3d 828, 853 (11th Cir. 2010)(noting that “free from
malicious prosecution and unreasonable detention under the Fourth
Amendment” may be sufficient for the “plus” requirement). However, there
must be a causal connection between the stigma and the loss of rights to
satisfy this requirement. See MFS, Inc. v. DiLazaro, 771 F.Supp.2d 382, 436
(E.D.Pa. 2011)(“Some other interest or right must be adversely affected,
along with stigma to reputation before a liberty interest is shown to exist.”)
Here, the plaintiff merely claims that Officer Shumosic falsely
broadcasted that he was “armed and dangerous,” and that he also said the
defendant went to someone’s home with a gun looking for his daughter. The
affidavit in support of the criminal complaint makes no mention of the plaintiff
being “armed and dangerous” or having a gun. As such, those statements did
not contribute to his prosecution. Further, the plaintiff does not make any
mention of whether he was arrested or if he was even taken into custody
based on these statements. Without a seizure or other constitutional violation
flowing from those allegedly false communications, there is no deprivation of
a protected liberty interest. As there is no connection between the allegedly
stigmatizing communications and a subsequent deprivation, this claim fails.

23

The plaintiff’s §1983 harm to reputation claim is DISMISSED WITH
PREJUDICE.
D. The Abuse of Process Claim
Judge Schwab concluded that the plaintiff failed to state a constitutional
claim for abuse of process. The plaintiff objected to this ruling, claiming that
the false statements contributed to an abuse of process. First, the court will
dismiss this claim against Officers DeSimone and Moyer, Sargent Murphy,
and Chief Powers for the same lack of personal involvement discussed in
section III(B) and (C) above. Because they were not personally involved in the
arrest, charging, or prosecution of the plaintiff, the abuse of process claims
against Officers DeSimone and Moyer, Sargent Murphy, and Chief Powers
are DISMISSED WITH PREJUDICE.
As to the abuse of process claim against Officer Shumosic, “a section
1983 claim for malicious abuse of process lies where ‘prosecution is initiated
legitimately and thereafter is used for a purpose other than that intended by
the law.’” Rose v. Bartle, 871 F.2d 331, 350 n.17 (3d Cir. 1989)(quoting
Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir.1977)). As Judge Schwab
noted, when a criminal complaint is issued and a prosecution initiated, the
prosecuting officials are entitled to carry it out to an authorized conclusion.
24

Bristow v. Clevenger, 80 F.Supp.2d 421, 431 (citing Cameron v. Graphic
Management Assoc., Inc., 817 F.Supp. 19, 21 (E.D.Pa.1992)). It is only when
the process is used for an illegitimate purpose, such as extortion, forcing a
defendant to surrender a legal right, or blackmail, that a claim for abuse of
press lies. Id.
Here, the plaintiff alleges that Officer Shumosic engaged in an abuse
of process when he filed a false affidavit in support of a criminal prosecution.
However, the plaintiff has failed to demonstrate any facts that show how this
process was used for an illegitimate purpose to extract something from the
plaintiff. Further, if the court were to construe this as a claim for malicious
prosecution, that claim is barred because the plaintiff has failed to show the
proceedings terminated in his favor. The plaintiff was found guilty of disorderly
conduct and fined. (Doc. 10; footnote 1, supra). See Kossler v. Crisanti, 564
F.3d 181, 188 (3d Cir. 2009)(favorable termination requires the judgement to
demonstrate “the plaintiff's innocence of the alleged misconduct underlying
the offenses charged”). For those reasons, the plaintiff’s abuse of process
claim is DISMISSED WITH PREJUDICE.
E. The Defamation Claim
The plaintiff initially appears to agree with Judge Schwab’s
25

determination that his defamation claim is best suited for state court. (Doc. 24,
p. 2). However, on the next page of his objection, he argues that he has
pleaded a defamation/slander claim. The court construes this as an objection
as to whether this court should exercise supplemental jurisdiction over his
defamation claim.
In order to exercise supplemental jurisdiction over the state-law
defamation claim, “the Court must determine whether the two claims arise
from a common nucleus of operative fact.” Doherty v. Teamsters Pension
Trust Fund of Philadelphia and Vicinity, 142 F.App’x 573, 575 (3d Cir.
2005)(citing 28 U.S.C. §1367). The two claims are factually diverse and do
not share any common actors or circumstances. Although the plaintiff
generally claims these are part of a pattern of antagonism by the Pittston
Police Department, there is nothing in the complaint or attached exhibits to
connect the two. As such, the defamation claim is DISMISSED WITHOUT
PREJUDICE to refiling in the proper state court in Pennsylvania, should the
plaintiff decide to do so.
Lastly, as Judge Schwab discusses, the plaintiff has provided the court
with a bevy of factual allegations and has amended his complaint previously.
As such, further leave to amend need not be granted.
26

V.

CONCLUSION
For the reasons discussed above, Judge Schwab’s report and

recommendation is ADOPTED IN FULL and the defendants’ motion to
dismiss is GRANTED IN PART and DENIED IN PART. The plaintiff’s §1983
claims for harm to reputation and abuse of process are DISMISSED WITH
PREJUDICE. The plaintiff’s claim of defamation is DISMISSED WITHOUT
PREJUDICE to refiling in a proper state court. The Pittston Police
Department, Officers Moyer and Shumosic, Sargent Murphy, and Chief
Powers are DISMISSED with prejudice from this action entirely. In all other
respects, the defendants’ motion is DENIED. The case will be REFERRED to
Judge Schwab for further pre-trial proceedings. An appropriate order shall
issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: July 28, 2014
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2013 MEMORANDA\13-1714-01.wpd

27