Postie v. Frederick et al

Filing 28

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/17/15. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s))(bs)

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Dismiss will be granted in part and denied in part.
BACKGROUND
Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Stephanie PIAZZA, Plaintiff,
v.
Joseph LAKKIS, Defendant.
Civil Action No. 3:11–cv–2130.
June 5, 2012.
Barry H. Dyller, Law Office of Barry H. Dyller, Kelly A.
Bray, Dyller Law Firm, Wilkes-Barre, PA, for Plaintiff.
Patrick J. Boland, III, Thomas A. Specht, Marshall,
Dennehey, Warner, Coleman & Goggin, Scranton, PA,
Paul Gregory Lees, Marshall, Dennehey, Warner,
Coleman & Goggin, Bethlehem, PA, for Defendant.
MEMORANDUM
A. RICHARD CAPUTO, District Judge.
*1 Presently before the Court is Defendant Joseph
Lakkis's Motion to Dismiss of Plaintiff Stephanie Piazza's
Complaint. In her Complaint, Piazza alleges that she was
subjected to an unreasonable use of force and an unlawful
arrest and prosecution by Officer Lakkis. As such, she has
alleged violations of her rights under the Fourth and
Fourteenth Amendments to the United States Constitution,
as well as state law claims for malicious prosecution,
assault, battery, and false arrest / imprisonment. Piazza's
Fourteenth Amendment claims must fail as her claims
most properly arise under the Fourth Amendment, and her
claims for unlawful arrest must also fail as there was
probable cause for her arrest on at least one of her
charges. Piazza has also failed to allege the necessary
deprivation of liberty for a proper Fourth Amendment
claim for malicious prosecution, but will be given leave to
amend as to that element. However, Piazza has properly
pleaded a Fourth Amendment claim of excessive force as
well as claims under state law for malicious prosecution,
assault, and battery. Therefore, Officer Lakkis's Motion to

Plaintiff Stephanie Piazza alleges the following in her
Complaint. On July 11, 2010, Piazza was driving to the
Sugar Notch Bar and Grille in Sugar Notch, Pennsylvania.
Piazza came upon Defendant Lakkis, a patrolman for the
Sugar Notch Police Department who was on duty
conducting traffic for the Holy Family Church bazaar.
Officer Lakkis motioned Piazza to stop her car in order to
allow pedestrians to cross the street. After they had
completed their crossing, Piazza began to roll forward.
Officer Lakkis then stopped Piazza and “started screaming
at her that she was going to kill someone.” (Compl. at ¶
13, Doc. 1.) After directing her to pull off the roadway,
Officer Lakkis continued screaming at Piazza with his
head inside the open window of the car. When Piazza
politely inquired as to what the problem was, she was
directed not to talk back.
Officer Lakkis informed Piazza that she was going to
receive three motor vehicle citations, in particular for not
wearing her seatbelt. Piazza asked Officer Lakkis to “wait
a minute” and to “please listen” but was told to keep her
mouth shut. Piazza proceeded to inform Officer Lakkis
that, because she is on dialysis and has a catheter, she
cannot wear a seatbelt for documented medical reasons.
Officer Lakkis responded: “That's it. License, registration
and insurance. You're going in.”
At that point, Piazza started to experience
complications associated with her diabetes requiring her
to check her blood sugar. Piazza phoned a friend for
assistance. At the same time, Officer Lakkis informed
Piazza that her license was expired and that her car was
going to be towed. Once Piazza's friend finally arrived,
Officer Lakkis ordered him to “get away or you will be
next.”
Officer Lakkis left Piazza in her vehicle, at which
point she began to experience diabetic symptoms,
including dizziness and nausea. Piazza exited her car to
find Officer Lakkis and to tell him that she needed to retire
to a cool spot to check her blood sugar. Instead, Officer

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Lakkis ordered Piazza to return to her car. Piazza
protested that it was a medical emergency, but “Lakkis
continued to scream at her to get back in the car.” (Id. at
¶ 38.) Piazza tried to plead with Officer Lakkis, but
“Lakkis grabbed Ms. Piazza by her left arm, dragged her,
flipped her onto the police car, causing her dress to lift and
expose her underwear, smashed her face into the police
car and handcuffed her.” (Id. at ¶ 40.) Officer Lakkis was
crushing Piazza against the police cruiser, causing her to
become panicked that her catheter would be dislocated
and that she would bleed to death as a result. Piazza
pleaded with Officer Lakkis, trying to communicate the
seriousness of the situation, but Lakkis continued to slam
Piazza against the police cruiser.
*2 Piazza was thrown in the back of the cruiser,
landing on her catheter and again exposing her underwear.
Piazza called for help, expressing to Officer Lakkis that
she could not breath and that she believed her arm to be
broken. Officer Lakkis did not attempt to help, but instead
smiled at Piazza through the cruiser's window. Because
she still had her cell phone, Piazza again called her friend
for help. Approximately fifteen minutes later, an EMT
arrived on the scene. Piazza's hands had turned purple,
necessitating the loosening of her handcuffs. She was
transported to General Hospital. As a result of the ordeal,
Piazza sustained injuries including a wrist sprain, bruising,
and an elevated blood sugar level requiring emergency
medical treatment.
Piazza was charged with resisting arrest, 18 Pa.C.S.A.
§ 5104, obstructing administration of law, 18 Pa.C.S.A. §
5101, and disorderly conduct, 18 Pa.C.S.A. § 5503(a)(4),
as well as vehicle code summary offenses for failure to use
a restraint system, 75 Pa.C.S.A. § 4581(a)(2), driving
without a license, 75 Pa.C.S.A. § 1501(a), and failure to
obey authorized persons directing traffic, 75 Pa.C.S.A. §
3102. Officer Lakkis did not have probable cause for these
criminal charges, and they were only filed in order to
provide legitimacy to his brutal conduct. District Justice
Joseph Halesey dismissed the charges of obstructing
administration of law and failure to use a restraint system,
but everything else was held for court. The remaining two
criminal charges were withdrawn on August 29, 2011.
Piazza pleaded guilty to the charges of driving without a
license and to obedience to authorized persons directing

traffic. (Comm. Pleas Crim. Docket, Def.'s Ex. B.)
On November 14, 2011, Piazza filed the instant Complaint
bringing claims under 42 U.S.C. § 1983 FN1 for: (1)
excessive force in violation of the Fourth and Fourteenth
Amendments; (2) unlawful arrest in violation of the Fourth
and Fourteenth Amendments; and (3) malicious
prosecution in violation of the Fourth and Fourteenth
Amendments. Piazza also lodges state law claims for
malicious prosecution, assault, battery, and false arrest /
imprisonment. This motion is now ripe for the Court's
review.
FN1. Generally, a claim under § 1983 requires
“two essential elements: (1) that the conduct
complained of was committed by a person acting
under color of state law; and (2) that the conduct
deprived the plaintiff of rights, privileges, or
immunities secured by the Constitution or laws
of the United States.” Schneyder v. Smith, 653
F.3d 313, 319 (3d Cir.2011). Here, there is no
argument that Officer Lakkis was not acting
under color of state law at all relevant times.
DISCUSSION
I. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for
the dismissal of a complaint, in whole or in part, for
failure to state a claim upon which relief can be granted.
When considering a Rule 12(b)(6) motion, the Court's role
is limited to determining if a plaintiff is entitled to offer
evidence in support of their claims. See Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974). The Court does not consider whether a plaintiff
will ultimately prevail. See id. A defendant bears the
burden of establishing that a plaintiff's complaint fails to
state a claim. See Gould Elecs. v. United States, 220 F.3d
169, 178 (3d Cir.2000).
“A pleading that states a claim for relief must contain
... a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The
statement required by Rule 8(a)(2) must give the
defendant fair notice of what the ... claim is and the
grounds upon which it rests.' “ Erickson v. Pardus, 551
U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)
(per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Detailed factual allegations are not required. Twombly,
550 U.S. at 555. However, mere conclusory statements
will not do; “a complaint must do more than allege the
plaintiff's entitlement to relief.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 211 (3d Cir.2009). Instead, a
complaint must “show” this entitlement by alleging
sufficient facts. Id.
*3 As such, the inquiry at the motion to dismiss stage
is “normally broken into three parts: (1) identifying the
elements of the claim, (2) reviewing the complaint to
strike conclusory allegations, and then (3) looking at the
well-pleaded components of the complaint and evaluating
whether all of the elements identified in part one of the
inquiry are sufficiently alleged.” Malleus v. George, 641
F.3d 560, 563 (3d Cir.2011).
Dismissal is appropriate only if, accepting as true all
the facts alleged in the complaint, a plaintiff has not
pleaded “enough facts to state a claim to relief that is
plausible on its face,” Twombly, 550 U.S. at 570, meaning
enough factual allegations “ ‘to raise a reasonable
expectation that discovery will reveal evidence of’ “ each
necessary element, Phillips v. County of Allegheny, 515
F.3d 224, 234 (3d Cir.2008) (quoting Twombly, 550 U.S.
at 556). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949,
173 L.Ed.2d 868 (2009). “When there are well-pleaded
factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief.” Id. at 1950.
In deciding a motion to dismiss, the Court should consider
the allegations in the complaint, exhibits attached to the
complaint, and matters of public record. See Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir.1993). The Court may also
consider “undisputedly authentic” documents when the
plaintiff's claims are based on the documents and the
defendant has attached copies of the documents to the
motion to dismiss. Id. The Court need not assume the
plaintiff can prove facts that were not alleged in the
complaint, see City of Pittsburgh v. W. Penn Power Co.,

147 F.3d 256, 263 & n. 13 (3d Cir.1998), or credit a
complaint's “ ‘bald assertions' “ or “ ‘legal conclusions,’ “
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d
Cir.1997) (quoting In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1429–30 (3d Cir.1997)).
II. Analysis
A. Piazza's § 1983 Claim for Unreasonable Use of
Force (Count I)
Officer Lakkis argues that the facts alleged in the
Complaint are insufficient to establish “an unconstitutional
and/or an unprivileged use of force.” (Def.'s Br. at 16,
Doc. 12.) For the reasons below, Piazza has successfully
made a Fourth Amendment claim for unreasonable use of
force that survives this Motion to Dismiss. Her Fourteenth
Amendment claims, however, will be dismissed under the
more specific provision rule.
1. Merits of the Unreasonable Use of Force Claim
The Fourth Amendment specifically prohibits
unreasonable searches and seizures, and a claim for
excessive force under that Amendment must therefore
show the existence of such an unreasonable seizure.
Lamont v. New Jersey, 637 F.3d 177, 182–83 (3d
Cir.2011) (citations omitted). As the implementation of
excessive force itself constitutes a seizure, “a court must
determine the objective ‘reasonableness' of the challenged
conduct, considering ‘the severity of the crime at issue,
whether the suspect poses an immediate threat to the
safety of the officer or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.’ “
Couden v. Duffy, 446 F.3d 483, 496–97 (3d Cir.2006)
(quoting Carswell v. Borough of Homestead, 381 F.3d
235, 240 (3d Cir.2004)). This standard is one of objective
reasonableness, and looks to “ ‘the reasonableness of the
officer's belief as to the appropriate level of force[,]’
which ‘should be judged from [the officer's] on-scene
perspective,’ and not in the '20/20 vision of hindsight.' “
Curley v. Klem, 499 F.3d 199, 206 (3d Cir.2007)
(alterations in original) (quoting Saucier v. Katz, 533 U.S.
194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
Factors to consider—among other things—include the
severity of the underlying crime, the immediacy of the
threat posed by the individual, the potential that the

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individual is armed, the extent to which the suspect is
attempting to resist or escape, the length of the encounter,
and the ratio of suspects to police officers. Kopec v. Tate,
361 F.3d 772, 777 (3d Cir.2004). Finally, “[t]he absence
of physical injury or contact does not necessarily mean
that excessive force was not used.” Periera v. Lizzio, No.
3:09–CV–1024, 2012 WL 1205750, at * 2 (M.D.Pa.
Apr.11, 2012).
*4 According to the terms of the Complaint,FN2 the
amount of force alleged is sufficiently unreasonable to
allow this claim to proceed beyond the motion to dismiss
stage. In essence, the Complaint paints a situation in which
Piazza politely approached Officer Lakkis to explain a
worsening medical situation and instead was repeatedly
slammed against a police cruiser despite warnings that
such could be fatal. Thus, the thrust of Piazza's Complaint
is that she was beat up by a police officer over a series of
escalating misunderstandings. The accuracy of these
allegations is for further factual development, but the
Complaint on its face must survive on this claim.
Moreover, viewed in light of the underlying
crimes—vehicle summary offenses—a very minimal
amount of force would have been objectively reasonable.
Officer Lakkis retorts that “he was confronting a situation
wherein he was dealing with a recalcitrant, or at least
uncooperative, disobedient suspect, and possibly
contending with more than one person.” (Def.'s Br. at 16,
Doc. 12.) Yet, the Complaint suggests that this is an
overstatement. Instead, the Complaint describes one to
two individuals, neither of whom exhibiting any indication
that they were armed or presenting any threat, making
reasonable requests of the Officer. These allegations do
not warrant such a forceful intervention.
FN2. The Court declines to consider the facts
contained within Officer Lakkis's Affidavit of
Probable Cause in regard to the instant Motion to
Dismiss. Even assuming that it would be
appropriate to consider this document under
Pension Benefit Guar. Corp. v. White Consol.
Indus., 998 F.2d 1192, 1196 (3d Cir.Pa.1993)
(“a court may consider an undisputedly authentic
document that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff's claims are
based on the document”), the Affidavit merely
raises issues of fact which are not properly

considered at this stage. See Alexis v. Delaware,
No. Civ.A. 00–1018–SLR, 2001 W L 640805, at
* 4 (D.Del. May 16, 2001) (declining to consider
the police report at the motion to dismiss stage as
raising only issues of fact).
The cases cited by Officer Lakkis are inapposite to
the instant case. As an initial matter, they both concern
motions for summary judgment and therefore derive their
holdings from developed factual records. However, on
those facts, Marcavage v. City of Philadelphia involved a
plaintiff who, while approaching an ongoing seizure of
another individual, was put into a choke hold after
reaching for an unknown silver object. 778 F.Supp.2d 556,
571 (E.D.Pa.2011). That situation presented far more
objective danger than the one alleged in the instant
Complaint. Similarly, Thomas v. City of Erie affirmed a
district court's decision to grant summary judgment against
an excessive force claim where the police pulled a
suspects' hands behind his back to handcuff him, and
where his head was hit on the police van when he was put
into it. 236 Fed. Appx. 772, 776 (3d Cir.Pa.2007). Unlike
Piazza's case, were there are allegations of gratuitous
force, the two instances of force in Thomas were arguably
necessary or accidental. Therefore, Piazza's claim for
excessive force survives on the allegations of the
Complaint.
2. Qualified Immunity
Under the doctrine of qualified immunity, government
officials are immune from suit for damages where their
conduct did not violate “clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231,
129 S.Ct. 808, 172 L.Ed.2d 565 (internal quotations
omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified
immunity protects government officials whether they have
made a mistake of law, a mistake of fact, or a mistake
based on mixed questions of law and fact. Id. To
determine whether qualified immunity applies, a court
must examine “whether the facts that a plaintiff has
alleged or shown make out a violation of a constitutional
right” and “whether the right at issue was ‘clearly
established’ at the time of defendant's alleged
misconduct.” Id. at 232 (internal citations omitted). A

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court may exercise its discretion in choosing which prong
to address first, considering the circumstances of the
particular case. Id. at 236.
*5 On the allegations before the Court, qualified
immunity is not warranted. As noted above, the Complaint
sufficiently alleges that the amount of force used by
Officer Lakkis was unreasonable. Further, at the time of
the incident, it was clearly established that the use of
excessive force would violate the Fourth Amendment. In
particular, the Supreme Court held in 1989 that “the
Fourth Amendment provides an explicit textual source of
constitutional protection against this sort of physically
intrusive governmental conduct” and directing that such
force be guided by a reasonableness standard. Graham v.
Connor, 490 U.S. 386, 395–96, 109 S.Ct. 1865, 104
L.Ed.2d 443 (1989); see also Bannan v. City of
Philadelphia, Civ. Act. No. 11–cv–4680, 2012 WL
406325, at *4 (E.D.Pa. Feb.09, 2012) (holding that a
reasonable officer in 2010 would know that excessive
force was a clearly established constitutional violation,
specifically “that it would be excessive to shove a
non-resisting, non-threatening, non-armed man in the back
hard enough that he falls to the ground, merely to move
him away from a Walmart entrance and arrest him for
disorderly conduct.”). Thus, on the allegations of the
Complaint, qualified immunity is not warranted.
3. The More Specific Provision
Officer Lakkis argues that Piazza's Fourth
Amendment claims are coextensive with her Fourteenth
Amendment due process claims, and that the more specific
provision rule therefore dictates that these constitutional
claims should proceed solely as Fourth Amendment
claims.
Although the Third Circuit has previously held that a
claim of “excessive force in the course of an arrest is
properly analyzed under the Fourth Amendment, not under
substantive due process,” Abraham v. Raso, 183 F.3d 279,
288 (3d Cir.N.J.1999) (citing Graham v. Connor, 490
U.S. 386, 393–94, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989)), in 2010, it specifically endorsed the more specific
provision rule in Betts v. New Castle Youth Development
Center, 621 F.3d 249, 261 n. 10 (3d Cir.2010). Moreover,
in adopting the more specific provision rule, the Court of
Appeals cited Tesch v. County of Green Lake, 157 F.3d

465, 471–72 (7th Cir.1998), which applied the rule to
preclude a due process violation for exposure to danger in
the course of an arrest as this harm was “more
appropriately viewed as either a claim for excessive force
in an arrest or a general claim against an unreasonable
seizure.”
Following Betts, other district courts have precluded
parallel Fourth and Fourteenth Amendment claims on all
three of Piazza's § 1983 causes of action. See Scutella v.
City of Erie Bureau of Police, CA 11–198, 2012 WL
1788136, at *4, (W.D.Pa. Apr.20, 2012) (finding
allegations of excessive force predicated on the Fourth
Amendment and dismissing the due process claim);
Mitchell v. Luckenbill, 680 F.Supp.2d 672, 685
(M.D.Pa.2010) (Vanaskie, J.) (dismissing Fourteenth
Amendment excessive force claim as it was “clear that the
Fourth Amendment, as opposed to the Fourteenth
Amendment, applies to Plaintiffs' excessive force
claims”); Celestine v. Foley, CIV.A. 10–1775 NLH, 2010
WL 5186145, at *4 (D.N.J. Dec.14, 2010) (applying the
more specific provision rule to malicious prosecution,
finding it “most appropriately analyzed under Fourth
Amendment jurisprudence.”); Fennimore v. Lower Twp.,
CIV. 09–2090 RMB/KMW, 2011 WL 1705599 (D.N.J.
May 4, 2011) (dismissing Fourteenth Amendment claims
for false arrest, excessive force, and malicious prosecution
in part because they must fall “under the ‘more-specific
provision’ of the Fourth Amendment.”).
*6 Therefore, as Piazza's constitutional claims in Counts
I, II, and III are more properly cognizable as violations of
the Fourth Amendment, her Fourteenth Amendment
claims in those counts will be dismissed.FN3
FN3. That the Fourth Amendment's protections
have been applied to state actors through the
Fourteenth Amendment does nothing to alter this
analysis. In Salerno v. Galli, 3:CV–07–2100,
2009 WL 3245532, at *4 (M.D.Pa. Oct.7, 2009),
the Hon. Judge Vanaskie dismissed a plaintiff's
Fourteenth Amendment claims, noting that
although the Fourth Amendment's protections
against unreasonable searches and seizures have
been applied to state actors through the
Fourteenth Amendment, this was “irrelevant” to

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claims falling “within the purview of Fourth
Amendment Jurisprudence.” Conversely, in
Garafola v. Lackawanna County Corr. Care,
Inc., 3:07CV2305, 2009 WL 1609401, at *2 n. 1
(M.D.Pa. June 9, 2009) (Munley, J.), references
to the Fourteenth Amendment were allowed to
remain in a complaint only “to the extent that the
Fourteenth Amendment incorporates the Eighth
Amendment and makes it applicable to state
actors.” Here, however, the determination is that
Piazza may not proceed under a parallel theory
of substantive due process, not that she must
omit all passing references to the Fourteenth
Amendment. See also Ward v. Noonan,
3:11–CV–945, 2011 WL 6100851, at *6
(M.D.Pa. Dec.7, 2011) (Caputo, J.)
(acknowledging that while the Fourth
Amendment applies to the states through the
Fourteenth Amendment, that a plaintiff “need not
include a cause of action under the Fourteenth
Amendment in order to state a claim pursuant to
§ 1983 for a violation of his ... Fourth
Amendment rights.”).
B. Piazza's § 1983 Claim for Unlawful Arrest (Count
II)FN4
FN4. In Count II of her Complaint, Piazza avers
that Officer Lakkis's conduct “including his
seizure of Ms. Piazza, constituted an
unreasonable seizure under the Fourth
Amendment to the United States Constitution.”
(Compl. at ¶ 69, Doc. 1.) Since there is no
argument that the initial traffic stop was
unlawful, the Court interprets Count II of the
Complaint as a claim made solely for unlawful
arrest. This construction fully conforms with the
parties' framing of the claim in their respective
briefs.
A § 1983 claim for unlawful arrest requires
allegations that a plaintiff was “arrested by a State actor
without probable cause.” Palma v. Atl. County, 53
F.Supp.2d 743, 755 (D.N.J.1999). “To determine whether
an officer had probable cause to arrest an individual, we
examine the events leading up to the arrest, and then
decide ‘whether these historical facts, viewed from the

standpoint of an objectively reasonable police officer,
amount to’ probable cause.” Maryland v. Pringle, 540
U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003)
(quoting Ornelas v. United States, 517 U.S. 690, 696, 116
S.Ct. 1657, 134 L.Ed.2d 911 (1996)). Such “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.” Reedy v. Evanson, 615 F.3d 197, 211 (3d
Cir.2010) (quoting Orsatti v. New Jersey State Police, 71
F.3d 480, 483 (3d Cir.1995)). This analysis looks not to
the guilt or innocense of the accused, but focuses solely on
the existence of probable cause at the time of arrest.
Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d
Cir.1995) (citing Dowling v. City of Phila., 855 F.2d 136,
141 (3d Cir.1988)). Such probable cause “need only exist
as to any offense that could be charged under the
circumstances.” Barna v. City of Perth Amboy, 42 F.3d
809, 819 (3d Cir.1994).
From the face of Piazza's Complaint, it is clear that there
was probable cause for her arrest as to at least one of the
offenses she was charged with. In particular, the
Complaint establishes that Piazza was driving her vehicle
without her seatbelt and with an expired driver's license,
both of which are offenses under Pennsylvania law.
(Compl. at ¶¶ 24, 30, 55, Doc. 1.) That these are summary
offense charges does not revive Piazza's claim for
unlawful arrest. Kokinda v. Breiner, 557 F.Supp.2d 581,
593 (M.D.Pa.2008) (Caputo, J.). In Kokinda, the plaintiff
argued that the defendant police officers lacked probable
cause to arrest him for any crime, but conceded that there
was probable cause to arrest him for the summary offense
of harassment. This, the plaintiff argued, exposed him only
to a ticket but not to arrest. There, I concluded that this
argument did not have merit, and found that the plaintiff's
admission that the charge was based on probable clause
precluded an overall claim for false arrest under § 1983.
Specifically, I noted that the plaintiff's argument was
foreclosed by Virginia v. Moore, 553 U.S. 164, 176, 128
S.Ct. 1598, 170 L.Ed.2d 559 (2008), which held that an
officer may arrest an individual for the violation of any
crime committed in their presence, even if that crime is a
non-arrestable offense under state law.

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*7 Here, a similar result it warranted in light of
Piazza's guilty plea and indication that she was not in
compliance with the law. Specifically, a fair reading of
Piazza's Complaint indicates that she was driving with an
expired license and that she was charged—among other
offenses—with violating Pennsylvania law requiring
drivers to be licensed: 75 Pa.C.S.A. § 1501(a). As this
provision makes it illegal to operate a motor vehicle
without a valid driver's licence, it is clear from the
allegations of the Complaint that Officer Lakkis had
probable cause to arrest Piazza for at least that one
transgression.
Further, this particular claim for false arrest is barred
by the Supreme Court's decision in Heck v. Humphrey.
512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
That case held that a plaintiff's § 1983 damages suit may
only proceed where the conviction or sentence has been
reversed, expunged, or invalidated in some form if it
“would necessarily imply the invalidity of his conviction
or sentence.” Id. at 484. In other words, Heck held that “a
§ 1983 malicious prosecution claim was subject to the
common law requirement that the plaintiff show the prior
criminal proceeding terminated in his favor.” Gilles v.
Davis, 427 F.3d 197, 209 (3d Cir.2005) (citing Heck, 512
U.S. at 484). This rule is designed to discourage
simultaneous litigation of probable cause and guilt while
preventing a petitioner from “succeeding in a tort action
after having been convicted in the underlying criminal
prosecution, which would run counter to the judicial
policy against creating two conflicting resolutions arising
from the same transaction.” Id. Piazza's claim for unlawful
arrest is therefore Heck-barred because the state court
records clearly show that Piazza pleaded guilty to the
charge or driving without a license and there is no
indication that it has been reversed, expunged or otherwise
invalidated. (Def.'s Ex. B at 4.)
Therefore, because the Court finds allegations of probable
cause sufficient to support Piazza's arrest for at least one
of the violations she was charged with, her claim for false
arrest must fail and it is unnecessary to analyze the
sufficiency of the additional charges made against Piazza
at the time of her arrest.
C. Piazza's § 1983 Claim for Malicious Prosecution
(Count III)

Officer Lakkis argues that Piazza also cannot
maintain a § 1983 claim for malicious prosecution. Such
a claim under the Fourth Amendment requires that:
(1) the defendant initiated a criminal proceeding;
(2) the criminal proceeding ended in [her] favor;
(3) the defendant initiated the proceeding without
probable cause;
(4) the defendant acted maliciously or for a purpose
other than bringing the plaintiff to justice; and
(5) the plaintiff suffered deprivation of liberty consistent
with the concept of seizure as a consequence of a legal
proceeding.
Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir.2007).
Here, there is no argument that Piazza's Complaint does
not sufficiently allege that Officer Lakkis had initiated a
criminal proceeding against her with a purpose other than
bringing the plaintiff to justice, the first and fourth
elements of the test. Instead, the controversy lies with the
remaining three elements which will be discussed below.
In particular, while Piazza's § 1983 malicious prosecution
claim fails to plead a proper deprivation of liberty, she will
be given leave to amend on this infirmity.
1. Deprivation of Liberty
*8 While a claim for false arrest “covers damages
only for the time of detention until the issuance of process
or arraignment, and not more,” a claim for malicious
prosecution “permits damages for confinement imposed
pursuant to legal process.” Kokinda, 557 F.Supp.2d at 591
(quoting Johnson, 477 F.3d at 82). This is because a claim
for malicious prosecution seeks to remedy “the
deprivation of liberty accompanying prosecution, not
prosecution itself.” DiBella v. Borough of Beachwood,
407 F.3d 599, 603 (3d Cir.2005) (citation omitted). As
such, a plaintiff's claim for malicious prosecution begins
not with an arrest, which is not pursuant to legal process,
but with the indictment. Sershen v. Cholish, CIV.A.
3:07–CV–1011, 2007 WL 3146357, at *10 (M.D.Pa.
Oct.26, 2007) (Caputo, J.) (citing Gallo v. City of Phila.,

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161 F.3d 217, 222 (3d Cir.1998)).
In fact, malicious prosecution requires some sort of
significant seizure, including “[p]retrial custody and some
onerous types of pretrial, non-custodial restrictions.”
DiBella, 407 F.3d at 603. And, attending one's trial is not
such a seizure. Id. Specifically, in DiBella, the Court of
Appeals found there was no seizure to support a malicious
prosecution claim when the plaintiffs “were never
arrested; ... never posted bail; ... were free to travel; ... and
did not have to report to Pretrial Services.” 407 F.3d at
603.
Here, Piazza acknowledges that she has not alleged
that she suffered a deprivation of liberty consistent with
the concept of seizure as a result of legal process that
Officer Lakkis initiated against her. (Pl.'s Br. at 35, Doc.
19.) Instead, in her brief, she avers that it is “undisputed
that Ms. Piazza suffered a deprivation of liberty when
Officer Lakkis physically seized her and also when she
was lodged in the Luzerne County Correctional Facility.”
(Id.) As noted above, the initial seizure is not a sufficient
basis for a malicious prosecution claim. Moreover, the
documents before the Court do not appear to substantiate
the requisite seizure following an indictment as to support
a claim of malicious prosecution. Instead, as Officer
Lakkis argues, Piazza's bail form seems to indicate that
she was released on her own recognizance. (Def.'s Ex. C
at 2.) Therefore, it is clear that Piazza has not stated a
claim upon which relief can be granted for malicious
prosecution under § 1983.
Of course, “if a complaint is subject to a Rule
12(b)(6) dismissal, a district court must permit a curative
amendment unless such an amendment would be
inequitable or futile.” Phillips v. County of Allegheny, 515
F.3d 224, 245 (3d Cir.2008) (citation omitted).
Furthermore, Federal Rule of Civil Procedure 15(a)
directs the Court to “freely give leave when justice so
requires.” This principle applies equally in situations
where a plaintiff does not affirmatively seek a leave to
amend, though a court may ultimately dismiss if the
plaintiff does not submit such an amended pleading.
Phillips, 515 F.3d at 245. Therefore, since it is not clear
that Piazza cannot establish this element, she will be given
leave to amend.

2. Favorable Termination
*9 Contrary to Officer Lakkis's assertion, Piazza can
show that the criminal proceedings have terminated in her
favor, the second element of a § 1983 malicious
prosecution claim. Initially, Piazza was charged with
resisting arrest, 18 Pa.C.S.A. § 5104, obstructing
administration of law, 18 Pa.C.S.A. § 5101, and disorderly
conduct, 18 Pa.C.S.A. § 5503(a)(4), as well as vehicle
code summary offenses for failure to use a restraint
system, 75 Pa.C.S.A. § 4581(a)(2), driving without a
license, 75 Pa.C.S.A. § 1501(a), and failure to obey
authorized persons directing traffic, 75 Pa.C.S.A. § 3102.
In her Complaint, Piazza represents that District Justice
Joseph Halesey dismissed the charges of obstructing
administration of law and failure to use a restraint system,
while the Commonwealth later withdrew the charges for
disorderly conduct and resisting arrest. (Compl. at ¶¶
59–60, Doc. 1.) The Common Pleas Court Summary
affirms this, and also that Piazza pleaded guilty to the
charges of driving without a license and failure to obey
authorized persons directing traffic. (Def.'s Ex. “C”.)
As to the withdrawn claims, Officer Lakkis argues
that they do not constitute a favorable termination as they
were nolle prossed. This is because a nolle prosequi
disposition does not automatically indicate a favorable
outcome in the malicious prosecution context as “not all
cases where the prosecutor abandons criminal charges are
considered to have terminated favorably.” Donahue v.
Gavin, 280 F.3d 371, 383 (3d Cir.2002) (quoting Hilfirty
v. Shipman, 91 F.3d 573, 579–80 (3d Cir.1996)). In
particular, a nolle prosequi is a favorable termination
“only when their final disposition is such as to indicate the
innocence of the accused.” Id. (quoting Restatement
(Second) of Torts § 660, cmt. a).
That these two charges were withdrawn is sufficient
to establish that they were favorably terminated at the
motion to dismiss stage. Although somewhat conclusory,
Piazza represents that she “prevailed on the criminal
charges against her” (Compl. at ¶ 73, Doc. 1), and Officer
Lakkis merely retorts that these withdrawn charges were
likely nolle prossed as they “were not disposed of until
after the Criminal Information had been filed” (Def.'s Br.
at 13, Doc. 12). Even if these charges were nolle prossed,
there is no indication in the Complaint or elsewhere that

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such a disposition was unfavorable. Thus, while more
specific facts could later indicate a similarly unfavorable
outcome in Piazza's case, the allegations of the Complaint
suffice to establish a claim of malicious prosecution as to
these two withdrawn claims.
Piazza's guilty pleas, however, pose a larger threat to
her malicious prosecution claim. It is not enough that
Piazza prevailed on the criminal charges against her as a
finding of guilt on a related summary charge can thwart a
plaintiff's attempt to argue overall favorable termination.
Kossler v. Crisanti, 564 F.3d 181, 189 (3d Cir.2009).
Instead, “upon examination of the entire criminal
proceeding, the judgment must indicate the plaintiff's
innocence of the alleged misconduct underlying the
offenses charged” in order for favorable termination to
exist. Id. at 188. If the statutory offenses and the facts of
the case “indicate that the judgment as a whole does not
reflect the plaintiff's innocence, then the plaintiff fails to
establish the favorable termination element.” Id. at 188. In
particular, Kossler pertained to a bar patron had gotten
into an altercation with a police officer while trying to
break up a fight and was charged with felony aggravated
assault and summary offenses of disorderly conduct and
public intoxication. Id. at 184. The trial court judge
dismissed the aggravated assault and public intoxication
charges, but found the patron guilty of disorderly conduct,
concluding that he “was clearly guilty of some wrongdoing
in the altercation notwithstanding ... that his wrongdoing
did not amount to aggravated assault.” Id. at 185, 189.
Considering the facts underlying those particular charges,
the Court of Appeals determined that judgment as a whole
“did not reflect Kossler's innocence on the night of the
fight” and that “all three charges arose from the same
course of conduct.” Id. at 189. As such, the favorable
termination rule did not apply to that “indivisible factual
basis.” Id.
*10 Conversely, Jackson v. Nassan applied the rule
established in Kossler to a set of circumstances very
similar to the instant matter and found that the favorable
termination rule did apply. 2:08CV1054, 2009 WL
2707447, at *4 (W.D.Pa. Aug.26, 2009). There, a plaintiff
received an unfavorable outcome on a charge for
following too closely in his car, while the charges for
resisting arrest and disorderly conduct were terminated

favorably. That court, however, found that the favorable
and unfavorable charges “derived from two separate acts
of misconduct.” Id. at *4. Specifically, the charges for
resisting arrest and disorderly conduct were designed to
punish the plaintiff's alleged misconduct that occurred
after he had been stopped for the initial misconduct. Id.
Thus, notwithstanding the finding of guilt on the traffic
infraction, there could still be a favorable outcome on the
two charges for the conduct occurring after the stop.
Unlike Kossler, it was as if the plaintiff had committed
infractions on two wholly separate occasions.
Considering the facts underlying Piazza's charge, a similar
result is warranted. A person is guilty of resisting arrest
“if, with the intent of preventing a public servant from
effecting a lawful arrest or discharging any other duty, the
person creates a substantial risk of bodily injury to the
public servant or anyone else, or employs means justifying
or requiring substantial force to overcome the resistance.”
18 Pa.C.S.A. § 5104. Similarly, obstructing administration
of law requires that one “intentionally obstructs, impairs
or perverts the administration of law or other
governmental function by force, violence, physical
interference or obstacle, breach of official duty, or any
other unlawful act,” 18 Pa.C.S.A. § 5101, and disorderly
conduct requires the creation of a “hazardous or physically
offensive condition” 18 Pa.C.S.A. § 5503(a)(4). All of
these offenses look to disruptive behavior in the course of
an interaction with an officer, and are agnostic as to the
circumstances initiating that interaction.
Here, although Piazza pleaded guilty to the charges of
driving without a license and failure to obey authorized
persons directing traffic, the unlawful behavior underlying
these charges is wholly separate from the unlawful
behavior triggering the criminal charges and a claim of
malicious prosecution is therefore not precluded by the
favorable termination rule. Like following too closely in
Jackson, the guilty pleas to the two traffic infractions are
ancillary to the charges of resisting arrest, obstructing
administration of law, and disorderly conduct. In other
words, while the traffic stop or arrest may have been
originally predicated on those claims, additional, discrete
acts were required for the additional criminal charges. As
such, that Piazza pleaded guilty to the traffic infractions
does not indicate that her criminal charges were not

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favorably terminated.
3. Existence of Probable Cause
*11 Unlike false arrest, malicious prosecution
requires an independent inquiry into the existence of
probable cause for each charge made against a plaintiff.
Kokinda v. Breiner, 557 F.Supp.2d 581, 592
(M.D.Pa.2008) (Caputo, J.) (citing Johnson v. Knorr, 477
F.3d 75, 85 (3d Cir.2007)). In Wright v. City of
Philadelphia, however, the Third Circuit appeared to have
deviated from this tenet in holding—without
explanation—that a finding of probable cause on a charge
for criminal trespass also disposed of plaintiff's malicious
prosecution claim on the other charges brought against
her, including burglary. 409 F.3d 595, 604 (3d Cir.2005).
While this has been flagged as a potential deviation of the
above rule, the Court today does not necessarily read it as
such. In particular, Johnson v. Knorr noted that the result
in Wright was driven by the facts of that case, and it did
“not understand Wright to establish legal precedent of
such broad application that it would ‘insulate’ law
enforcement officers from liability for malicious
prosecution in all cases in which they had probable cause
for the arrest of the plaintiff on any one charge.” 477 F.3d
75, 83 & n. 9 (3d Cir.2007). Further, Kossler v. Crisanti,
564 F.3d 181, 193 (3d Cir.2009), noted that, while
refusing to squarely address the conflicting precedent, it
would be more appropriate to look at probable cause on a
charge-by-charge basis because it “does not have the
effect of undoing another court's judgment” and therefore
would not create conflicting resolutions arising from the
same transaction. See Heck, 512 U.S. at 484 (see Section
(I I) (B), supra ). Thus, it is proper to require that
probable cause exist as to each charge brought against
Piazza in order to defeat her claim for malicious
prosecution.FN5 See, e.g., Makboul v. Port Auth. of New
York & New Jersey, CIV.A. 09–3540 KSH, 2011 WL
4594224, at *6 (D.N.J. Sept.29, 2011) (citation omitted)
(“When evaluating the probable cause element of a
malicious prosecution claim, courts must analyze each
charge separately.”).
FN5. Further, it is sensible to analyze probable
cause differently under malicious prosecution
versus false arrest. Assuming that a plaintiff is
charged with at least one crime for which there is

probable cause, they may be appropriately
arrested regardless of whether there are
additional charges for which there is no probable
cause. Probable cause would already be satisfied
and the existence of additional charges would
add no further quantum of “arrestability.”
Conversely, in the malicious prosecution context,
additional, unrelated charges without probable
cause would incur additional criminal
proceedings which would not have existed
but-for the addition of unsubstantiated charges.
Thus, the analysis above finding that probable cause
existed for at least one of the charges against Piazza will
not preclude Piazza's claim for malicious prosecution at
the motion to dismiss stage. And, further factual
development is necessary before a determination can be
made as to whether probable cause existed on all charges.
Today, however, it suffices that Piazza's complaint
properly alleges that she was not intentionally obstructing
the administration of law as she was charged under 18
Pa.C.S.A. § 5101, a charge that was not even held over for
court by District Justice Halesey. While it is true that
Officer Lakkis obtained a summons based on an affidavit
of probable cause on all the charges, this is not inherently
indicative of probable cause, although Piazza will need to
eventually show “that the maker of the affidavit either
stated a deliberate falsehood or acted with a reckless
disregard for the truth.” Lippay v. Christos, 996 F.2d
1490, 1501 (3d Cir.1993) (citing Franks v. Delaware, 438
U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)); see also
Wilson v. Russo, 212 F.3d 781, 786 (3d Cir.2000) (finding
that “an arrest warrant issued by a magistrate or judge
does not, in itself, shelter an officer from liability for false
arrest.”).
*12 As to this affidavit, Piazza must eventually
substantiate that Officer Lakkis “ ‘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 ... that ‘such statements or
omissions are material, or necessary, to the finding of
probable cause.’ “ Wilson, 212 F.3d at 786 (quoting
Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.1997)).
In a review of the allegations contained within Piazza's
Complaint, it is possible that Officer Lakkis's affidavit was

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sufficiently skewed to lack such a basis of probable cause.
Specifically, Piazza alleges that she was attacked by
Officer Lakkis after attempting to inform him of her
worsening medical condition, and that in the process she
“repeatedly told him she had a catheter in her chest and
that he could kill her if it comes out.” (Compl. at ¶¶
36–44, Doc. 1.) While Officer Lakkis's affidavit tells a
different story, the thrust of Piazza's Complaint is that this
affidavit is false—that Officer Lakkis filed the charges
against her solely “to cover up and attempt to justify his
conduct and to protect himself from the consequences of
his act of brutalizing Ms. Piazza.” FN6 (Id. at ¶ 56.) In
short, the Complaint makes out a sufficient claim that at
least some of the charges made against Piazza were
without probable cause and the Court will not address the
underlying factual dispute at this motion to dismiss stage.
FN6. Of course, qualified immunity would not
apply to an officer found to have knowingly or
recklessly made false statements. See Section
(II)(A)(2), supra; Johnson v. Anhorn, 416
F.Supp.2d 338, 374 (E.D.Pa.2006) (“Because a
reasonable jury could find that [defendant]
knowingly or recklessly made false statements on
[the] Affidavit of Probable Cause, [defendant] is
not entitled to qualified immunity at this stage.”).
Therefore, as noted, Piazza's claim for malicious
prosecution will be allowed to proceed if Piazza submits
an amended complaint showing that she was seized
pursuant to legal process.
D. State Law Claims
1. State Law Malicious Prosecution (Count IV)
Malicious prosecution under Pennsylvania law
includes the same elements as a § 1983 malicious
prosecution claim except that it does not require the fifth
seizure element. Specifically, under Pennsylvania law, “a
plaintiff alleging common law malicious prosecution must
show (1) the defendants initiated a criminal proceeding;
(2) the criminal proceeding ended in the plaintiff's favor;
(3) the proceeding was initiated without probable cause;
and (4) the defendants acted maliciously or for a purpose
other than bringing the plaintiff to justice.” Merkle v.
Upper Dublin Sch. Dist., 211 F.3d 782, 791 (3d

Cir.2000).
As noted above in Section (II)(C), supra, Piazza has
sufficiently plead a claim for malicious prosecution under
§ 1983 excepting that she was seized pursuant to legal
process. Since this element is not required as a matter of
state law malicious prosecution, the malicious prosecution
claim under Pennsylvania law will be allowed to proceed.
2. Unlawful Arrest / False Imprisonment (Count VII)
A claim for false arrest made under Pennsylvania state
law is coextensive with one made under § 1983. Kokinda
v. Breiner, 557 F.Supp.2d 581, 593 (M.D.Pa.2008)
(Caputo, J.). The parties address the two claims as such,
deferring in their briefs to their arguments made within the
§ 1983 context. As Piazza's § 1983 claim for unlawful
arrest fails due to a finding of probable cause for arrest on
at least one of the offenses she was charged with, see Part
(II)(B), supra, this claim must fail as well. See, e.g.,
Kokinda, 557 F.Supp.2d at 592–94 (holding a warrantless
arrest for a summary offense based on probable cause
precluded federal and state claims for false arrest and false
imprisonment).
3. Assault and Battery (Counts V and VI)
*13 Piazza has successfully alleged a claim for assault
and battery under Pennsylvania law. In Pennsylvania,
“[a]ssault is an intentional attempt by force to do an injury
to the person of another, and a battery is committed
whenever the violence menaced in an assault is actually
done, though in ever so small a degree, upon the person.”
Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293
(1994) (quoting Cohen v. Lit Brothers, 166 Pa.Super. 206,
70 A.2d 419, 421 (1950)). While a police officer may
utilize force to effectuate an arrest, such force rises to the
level of assault where the force utilized becomes
unreasonable. Id.
As established above in Part (II)(A)(1), supra,
Piazza's Complaint sufficiently alleges that the amount of
force utilized by Officer Lakkis in the course of the arrest
was unreasonable. While further factual development may
establish that this was not the case, Piazza's Complaint
survives a motion to dismiss on this particular claim.
The Political Subdivision Tort Claims Act
(“PSTCA”), 42 Pa.C.S.A. § 8541 et seq., does not warrant

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dismissal of this claim. The PSTCA immunizes local
agencies from damages for liability for injury to a person
caused by an employee of that agency, and § 8545
specifically extends this immunity to agency employees
acting within the scope of their employment. This
immunity is withheld where “it is judicially determined
that the act of the employee caused the injury and that
such act constituted a crime, actual fraud, actual malice or
willful misconduct.” Id. at § 8550. In essence,
Pennsylvania law “deprives public employees of immunity
for intentional torts.” Brown v. Muhlenberg Twp., 269
F.3d 205, 214 (3d Cir.2001). However, the Supreme Court
of Pennsylvania has interpreted a police officer's use of
physical force to be sufficiently tortious where it is
unreasonable: “[a] police officer may be held liable for
assault and battery when a jury determines that the force
used in making an arrest is unnecessary or excessive.”
Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293
(1994); Kokinda v. Breiner, 557 F.Supp.2d 581, 594
(M.D.Pa.2008) (Caputo, J.) (“claims of assault and battery
against police officers performing an arrest might, but do
not necessarily, involve willful misconduct.”). Thus, in
finding above that Piazza's Complaint has sufficiently
alleged an unreasonable use of force, the Complaint
necessarily also makes a viable claim for assault and
battery under state law.

Piazza v. Lakkis
Not Reported in F.Supp.2d, 2012 WL 2007112 (M.D.Pa.)
END OF DOCUMENT

CONCLUSION
Although Piazza's Fourteenth Amendment claims are
precluded by the more specific provision rule, her
Complaint sufficiently pleads a claim under the Fourth
Amendment for unreasonable use of force (Count I). On
her Fourth Amendment malicious prosecution claim
(Count III), Piazza's Complaint fails to plead the necessary
deprivation of liberty, although she will be given leave to
amend solely on this omission. However, as an action for
malicious prosecution under state law does not require this
element, this claim will be allowed to proceed (Count IV),
as will her state-law claim for assault and battery (Counts
V and VII). Finally, Piazza's claims for unlawful arrest
under both the Fourth Amendment and under state law
(Counts II and VII) must fail as at least one of the charges
made against Piazza was founded upon probable cause.
An appropriate Order follows.
M.D.Pa.,2012.

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