Kintzel v. Orlandi et al

Filing 38

MEMORANDUM (Order to follow as separate docket entry) Signed by Honorable James M. Munley on 4/21/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FAITH KINTZEL,

:
No. 3:14cv2222
Plaintiff
:
:
(Judge Munley)
v.
:
:
DANTE ORLANDI, WILLIAM E.
:
TUCKER, CORPORAL WISE, AND
:
KATHY JO WINTERBOTTOM, PA.
:
STATE POLICE,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court is the defendants’ motion to dismiss filed pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Doc. 31). For the following
reasons, the court will grant the motion.
Background
Plaintiff Faith Kintzel (hereinafter “plaintiff”) alleges that Pennsylvania
State Police Officer Stephan Kleeman (hereinafter “Officer Kleeman”)
sexually assaulted her in June of 2010. (See Doc. 29, Am. Compl.
(hereinafter “Am. Compl.”)). Specifically, she avers that Officer Kleeman
used the threat of pending prosecution to force her to have sex with him.
(Id. ¶¶ 9-36). Plaintiff further alleges that Officer Kleeman and four other
state police officers, Dante Orlandi, William E. Tucker, Corporal Wise, and
Kathy Winterbottom (hereinafter the “state police defendants”), withheld

evidence and engaged in a cover-up that deprived her of meaningful
access to judicial remedies through a lawsuit against Officer Kleeman. (Id.
¶¶ 37-66).
Plaintiff initiated this action against Officer Kleeman and the state
police defendants pursuant to 42 U.S.C. § 1983 (hereinafter “section 1983”)
on November 20, 2014, alleging: Count I, denial of access to the courts;
and Count II, conspiracy. (See Doc. 1, Compl.). Prior to initiating this
action, plaintiff sued Officer Kleeman in the Eastern District of Pennsylvania
on May 17, 2012 (hereinafter “Kintzel I”), alleging false arrest, false
imprisonment, excessive force, due process violations, sexual assault and
battery, and loss of consortium. (See 3:13-cv-163, Doc. 1, Compl.). On
January 23, 2013, Kintzel I was transferred to this court. The parties
agreed to settle the matter for $23,000.00,1 and we dismissed the case on
August 17, 2016. (Am. Compl. ¶¶ 47, 64; 3:13-cv-163, Doc. 161).

1

In her amended complaint, plaintiff avers that she “agreed to settle her
claim against [Officer Kleeman] for $12,000 plus the deed to a parcel he
owns which is worth approximately $16,000,” or a total of $28,000.00. (Am.
Compl. ¶ 64). Plaintiff’s response to the state police defendants’ motion to
dismiss, however, indicates that Kintzel I settled for $23,000.00. (Doc. 36,
Pl.’s Br. in Opp. at 3-4). The actual settlement amount is immaterial to our
determination here, and therefore, we will use plaintiff’s more recent
iteration of the settlement amount, $23,000.00, for the remainder of this
memorandum.
2

On June 30, 2015, prior to Kintzel I’s settlement and dismissal, we
dismissed the instant action without prejudice for lack of ripeness. (Docs.
27 and 28). On November 14, 2016, after Kintzel I’s settlement and
dismissal, plaintiff filed an amended complaint in the instant action (Doc.
29), as well as an entirely new lawsuit alleging the same claims.2 (See
3:16-cv-2493, Doc. 1, Compl.). We reopened this case on January 6, 2017
(Doc. 30), and consolidated plaintiff’s new lawsuit with this one on January
27, 2017. (Doc. 33).
On January 27, 2017, the state police defendants moved to dismiss
plaintiff’s amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted. (Doc.
31). The parties have briefed their respective positions and the matter is
ripe for disposition.
Jurisdiction
Because this case is brought pursuant to section 1983, the court has
jurisdiction pursuant to 28 U.S.C. § 1331. (“The district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”).

2

Neither plaintiff’s amended complaint nor her new lawsuit name Officer
Kleeman as a defendant. (See Doc. 29; 3:16-cv-2493, Doc. 1, Compl.).
3

Legal Standard
The state police defendants filed the instant motion to dismiss
plaintiff’s amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). The court tests the sufficiency of the complaint’s allegations when
considering a Rule 12(b)(6) motion. All well-pleaded allegations of the
complaint must be viewed as true and in the light most favorable to the
non-movant to determine whether, “‘under any reasonable reading of the
pleadings, the plaintiff may be entitled to relief.’” Colburn v. Upper Darby
Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by
Oare v. Cty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must
describe “‘enough facts to raise a reasonable expectation that discovery
will reveal evidence of’ [each] necessary element” of the claims alleged in
the complaint. Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Moreover, the plaintiff must allege facts that “justify moving the case
beyond the pleadings to the next stage of litigation.” Id. at 234-35. In
evaluating the sufficiency of a complaint, the court may also consider
“matters of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations
4

omitted). The court need not accept legal conclusions or unwarranted
factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington,
Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion
Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
Discussion
The state police defendants move to dismiss plaintiff’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiff
has failed to plead facts sufficient to satisfy the elements of her section
1983 claims for denial of access to the courts and conspiracy. Section
1983 provides a civil remedy for the “deprivation of any rights, privileges, or
immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.
“To state a claim under section 1983, a plaintiff must demonstrate that
‘some person has deprived him of a federal right . . . [and] that the person
who has deprived him of that right acted under the color of state or
territorial law.’” Halsey v. Pfeiffer, 750 F.3d 273, 290 (3d Cir. 2014)
(quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)). Thus, “[t]he
threshold issue in any [section] 1983 lawsuit is whether the plaintiff has
sufficiently alleged a deprivation of a constitutional right.” L.R. v. Sch. Dist.
of Phila., 836 F.3d 235, 241 (3d Cir. 2016).

5

Here, the parties do not contest whether the state police defendants
acted under state law. Rather, they dispute whether the state police
defendants deprived plaintiff of her constitutional rights. As previously
stated, Count I of the complaint asserts a section 1983 denial of access to
the courts claim. Count II asserts a section 1983 conspiracy claim. We
address each count in turn.
I. Count I, Denial of Access to the Courts
The state police defendants first move to dismiss Count I of plaintiff’s
complaint, a section 1983 denial of access to the courts claim. The United
States Supreme Court has recognized that a constitutional right to
effectively use the courts has been found in the Article IV Privileges and
Immunities Clause, the First Amendment Petition Clause, the Fifth
Amendment Due Process Clause, and the Fourteenth Amendment Equal
Protection and Due Process Clauses. See Christopher v. Harbury, 536
U.S. 403, 415 n.12 (2002). Here, plaintiff asserts a denial of access to the
courts claim pursuant to the First and Fourteenth Amendments. (Am.
Compl. ¶ 70). Denial of access claims, wherever they are constitutionally
grounded, generally fall into two categories: “forward-looking” claims and
“backward-looking” claims. Harbury, 536 U.S.at 412-13.

6

“Forward-looking” claims allege that official action frustrates a plaintiff
in preparing and filing suit at the present time. Id. at 413. “Backwardlooking” claims, however, allege that past official acts caused “the loss or
inadequate settlement of a meritorious case, . . . the loss of an opportunity
to sue, . . . or the loss of an opportunity to seek some particular order of
relief[.]” Id. (internal citations omitted).3 Here, plaintiff’s denial of access
claim is “backward-looking,” and argues that the state police defendants’
past official acts caused an inadequate settlement in Kintzel I.
To prove a denial of access claim, plaintiff must establish two
elements: (1) she suffered an “actual injury”—that she lost a chance to
pursue “nonfrivolous” or “arguable” underlying claims; and (2) she has no
other “remedy that may be awarded as recompense” for the lost claim other
than in the present denial of access suit. Monroe v. Beard, 536 F.3d 198,
205 (3d Cir. 2008) (citing Harbury, 536 U.S. at 415). Accordingly, to
demonstrate the sufficiency of the underlying claim, “[t]he complaint must
describe the underlying arguable claim well enough to show that it is ‘more
3

As the name implies, “backward-looking” claims look backward to a time
when specific litigation “ended poorly, or could not have commenced, or
could have produced a remedy subsequently unobtainable.” Harbury, 536
U.S. at 414 (footnotes omitted). “The ultimate object of these sorts of
access claims, then, is not the judgment in a further lawsuit, but simply the
judgment in the access claim itself, in providing relief obtainable in no other
suit in the future.” Id.
7

than mere hope,’ and it must describe the ‘lost remedy.’” Id. at 205-06
(citing Harbury, 536 U.S. at 416-17).
In the instant matter, the state police defendants challenge the first
element, arguing that plaintiff has not suffered an actual injury. Specifically,
they contend that plaintiff’s initial civil lawsuit, Kintzel I, ended with a
$23,000.00 settlement in her favor, and thus, she cannot establish the “the
loss or inadequate settlement of a meritorious case.” Plaintiff avers that
$23,000.00 is an inadequate settlement, and that she would have received
a greater settlement or jury award had it not been for the state police
defendants’ actions. After a careful review, we agree with the state police
defendants.
As previously stated, a backward-looking denial of access claim
pursuant to section 1983 alleges that past official acts caused, inter alia,
“the loss or inadequate settlement of a meritorious case[.]” Harbury, 536
U.S. at 413. Consistent with this principle, this court instructed the parties
that “if plaintiff receives a judgment or settlement in her favor [in Kintzel I]
that meets or exceeds what she would have recovered without the alleged
actions of the defendants, then the denial of access claim will be rendered
moot.” (Doc. 27 at 7) (emphasis added).

8

Here, plaintiff’s $23,000.00 settlement in Kintzel I is adequate.
Plaintiff avers that this settlement “is far less than she would have received
absent the actions of the [state police defendants.]” (Am. Compl. ¶ 65). At
the same time, however, plaintiff avers that she settled Kintzel I for
$23,000.00 because Officer Kleeman would not have been able to pay a
greater settlement or jury award. (Am. Compl. ¶ 64).4 Thus, according to
the amended complaint, the state police defendants’ alleged actions had no
effect on the Kintzel I settlement. Stated differently, plaintiff settled Kintzel I
due to Officer Kleeman’s inability to pay her more than $23,000.00; she did
not settle due to her own inability to obtain evidence allegedly withheld by
the state police defendants.
Given Officer Kleeman’s inability to pay a settlement or jury award in
excess of $23,000.00, we find that $23,000.00 is the most substantial
award plaintiff could have collected in Kintzel I. Plaintiff’s claim that the
state police defendants’ alleged acts deprived her of an adequate
settlement in Kintzel I, therefore, fails as a matter of law. At the very least,
plaintiff’s settlement met what she would have recovered in Kintzel I without

4

“On or about October 18, 2016, due to the lack of ability for Stephen
Kleeman to pay a judgment and lack of assets he owned, Plaintiff agreed to
settle her claim against him for $12,000 plus the deed to a parcel he owns
which is worth approximately $16,000. She signed a release settling that
case.” (Am. Compl. ¶ 64).
9

the state police defendants’ alleged acts. Thus, plaintiff’s settlement is
adequate. Because plaintiff’s settlement is adequate, she cannot prove
that she suffered an “actual injury”—that she lost a chance to pursue a
“nonfrivolous” or “arguable” underlying claim.
At this juncture, even viewing plaintiff’s allegations as true, we find
that she has failed to allege facts sufficient to establish a section 1983
denial of access to the courts claim against the state police defendants.
Thus, we will grant the state police defendants’ motion to dismiss Count I.5

5

We note that plaintiff relies on case law from several other circuits and
district courts for the premise that, when state actors “shield from the public
[and the plaintiff] . . . key facts which would form the basis of [the plaintiff’s]
claim for redress,” that plaintiff can bring a backward-looking
claim. See Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984),
overruled on other grounds by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005).
These other circuits recognize, however, that “when a plaintiff in a
backward-looking access suit alleges that the government concealed or
manipulated relevant facts, the claim may not proceed if the plaintiff was, at
the time of the earlier lawsuit, aware of the facts giving rise to his claim.”
Sousa v. Marquez, 702 F.3d 124, 128 (2d Cir. 2012) (citations omitted);
see also Chappell v. Rich, 340 F.3d 1279 (11th Cir. 2003); Swekel v. City
of River Rouge, 119 F.3d 1259 (6th Cir. 1997); Bell, 746 F.2d 1205; Ryland
v. Shapiro, 708 F.2d 967 (5th Cir. 1983). The point of a backward-looking
access claim is to ensure that plaintiffs have an opportunity to rebut
opposing evidence—not to convert every instance of deception by a
governmental witness into a separate federal lawsuit. Sousa, 702 F.3d at
128-29. A plaintiff with such an opportunity, therefore, does have adequate
access to a judicial remedy. Id. at 128. Here, plaintiff began the instant
action on November 20, 2014, approximately twenty-one (21) months
before Kintzel I settled. Although she filed an amended complaint after
Kintzel I settled, on November 14, 2016, plaintiff’s allegations are materially
the same. Thus, plaintiff was aware of the facts giving rise to the instant
10

II. Count II, Conspiracy
The state police defendants next move to dismiss Count II of
plaintiff’s complaint, a section 1983 conspiracy claim. To establish a
conspiracy claim under section 1983, a plaintiff must establish both the
applicability of section 1983 and the Pennsylvania state law elements of a
civil conspiracy. Dice v. Johnson, 711 F. Supp. 2d 340, 357 (M.D. Pa.
2010) (citing Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir.
1974)). We previously concluded that plaintiff has failed to establish the
applicability of section 1983, as she has not demonstrated that the state
police defendants deprived her of a federal right. As such, plaintiff’s
section 1983 conspiracy claim fails as a matter of law. The state police
defendants’ motion to dismiss with respect to this claim will thus be
granted.
Conclusion
Based upon the above reasoning, the court will grant the state police
defendants’ motion to dismiss. An appropriate order follows.

Date: April 21, 2017

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

action at the time of Kintzel I. Even if bound by the case law on which
plaintiff relies, therefore, plaintiff’s claim may not proceed.
11