Yelland v. Abington Heights School District et al
Filing
18
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 2/9/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM H. YELLAND,
:
:
Plaintiff
CIVIL ACTION NO. 3:16-2080
:
v.
(JUDGE MANNION)
:
ABINGTON HEIGHTS SCHOOL
DISTRICT, et al.,
Defendants
:
:
MEMORANDUM
I.
BACKGROUND1
Plaintiff William H. Yelland was a science teacher at the Abington
Heights Middle School (“AHMS”) in the Abington Heights School District
(“AHSD”) from 2013 until May 7, 2015. On April 8, 2015, allegations of assault
were made by the parents of one of plaintiff’s eighth grade students, (“Student
A”), to AHMS Principal Michael Elia and AHMS Vice Principal Eduardo
Antonetti. After the meeting, the principal and vice principal at AHMS assured
the parents of Student A that plaintiff would not return to the classroom and
they contacted the Department of Human Services Office of Children, Youth
and Families (“CYF”) as well as the South Abington Police Department to
1
All facts are taken from plaintiff’s complaint, (Doc. 1), unless otherwise
noted. The facts alleged in plaintiff’s complaint must be accepted as true in
considering the defendants’ motion to dismiss. See Dieffenbach v. Dept. of
Revenue, 490 Fed.Appx. 433, 435 (3d Cir. 2012); Evancho v. Evans, 423
F.3d 347, 350 (3d Cir. 2005).
commence criminal proceedings against plaintiff. The next day, AHSD
officials, including defendants AHSD Superintendent Michael Mahon, Elia and
Antonetti, initiated an investigation into the assault allegations and discussed
the allegations with plaintiff during a meeting. The teacher’s union counsel
was also present. Plaintiff was asked to describe the April 8th incident with
Student A and he was asked questions about some other alleged incidents.
After the meeting, plaintiff was suspended indefinitely without pay. AHSD
officials then interviewed several students and eventually forwarded the
results of their investigation to the Lackawanna County District Attorney’s
(“DA”) Office. Plaintiff alleges that defendants intentionally withheld
exculpatory information when they provided information to the county
prosecutor and that they failed to disclose the accounts of several
eyewitnesses.
On June 11, 2015, the DA filed criminal charges of simple assault and
endangering the welfare of children against plaintiff based solely on the
allegations of assault made by Student A arising out of the April 8, 2015
incident. A jury trial was subsequently commenced in November 2015 against
plaintiff regarding the criminal charges. Plaintiff was found not guilty by a jury
on all of the charges. See Lackawanna County Court criminal docket in Com.
of PA v. Yelland, Docket No. CP-35-CR-1178-2015. 2
2
The court notes that the Lackawanna County Criminal Docket for
Yelland’s criminal cases can be found at http://ujsportal.pacourts.us. The
2
On October 14, 2016, plaintiff filed the instant civil rights action pursuant
to 42 U.S.C. §1983 against defendants AHSD, AHSD Board of Directors,
Mahon, Elia and Antonetti. (Doc. 1). Plaintiff sues Mahon, Elia and Antonetti
in both their official and individual capacities. Plaintiff alleges that his
Fourteenth Amendment procedural due process rights were violated with
respect to his suspension and termination.
Specifically, in Count I, plaintiff alleges that he was not afforded predeprivation due process by all defendants and that the April 9, 2015, meeting
did not satisfy the requirements of Cleveland Bd. of Education v. Loudermill,
470 U.S. 532 (1985). Plaintiff alleges that after his indefinite suspension
without pay, defendants conducted a “sham investigation” culminating in his
May 7, 2015, termination based on his alleged April 8th “physical[] attack” on
Student A as well as alleged physical attacks against other students.
In Count II, plaintiff alleges that all defendants denied him posttermination process by refusing to participate in his request for arbitration
regarding his grievance claim that he was wrongfully terminated without just
court can take judicial notice of Yelland’s Lackawanna County Court Criminal
Docket for purposes of defendants’ instant motion as an official state court
record and matters of public record. See Sands v. McCormick, 502 F.3d 263,
268 (3d Cir. 2007); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d
Cir. 2006)(In considering a Rule 12 motion, the court may consider
documents “that are attached to or submitted with the complaint, and any
matters incorporated by reference or integral to the claim, items subject to
judicial notice, matters of public record, orders, [and] items appearing in the
record of the case.”)(citations omitted).
3
cause which he made pursuant to the Abington Heights Education
Association’s Collective Bargaining Agreement (“CBA”). As Exhibit A attached
to his complaint, (Doc. 1-1), plaintiff submitted a copy of the decision and
order issued by the Pennsylvania Labor Relation Board (“PLRB”) regarding
an unfair practices charge filed by the Abington Heights Education
Association (“Union”) on September 25, 2015 alleging that AHSD violated the
Public Employee Relations Act (“PERA”) by refusing to arbitrate Yelland’s
grievance. Further, plaintiff alleges that AHSD was deliberately indifferent to
his rights by failing to properly supervise and train defendants Mahon, Elia
and Antonetti.
In Count III, plaintiff asserts a state law claim of malicious prosecution
against the defendants Mahon, Elia and Antonetti.
As relief in his complaint, plaintiff seeks an injunction from the court to
order the defendants to reinstate his employment, compensatory damages,
including front pay and back pay, punitive damages, nominal damages as well
as attorneys’ fees pursuant to 42 U.S.C. §1988 and costs.
Pending is the motion to dismiss plaintiff’s complaint, (Doc. 1), for failure
to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) filed jointly by all
defendants, (Doc. 6), on November 3, 2016. Defendants filed their brief in
support on November 17, 2016. (Doc. 9). Plaintiff filed his brief in opposition
to defendants’ motion on December 7, 2016. (Doc. 14). On December 21,
2016, defendants filed a reply brief. (Doc. 16). Defendants’ Rule 12(b)(6)
4
motion is ripe for disposition.
The court has jurisdiction over this case pursuant to 28 U.S.C. §1331
and 28 U.S.C. §1343(a) because plaintiff avers violations of his due process
rights under the Fourteenth Amendment of the U.S. Constitution. The court
can exercise supplemental jurisdiction over plaintiff’s state law malicious
prosecution claim under 28 U.S.C. §1367. Venue is appropriate in this court
since the alleged constitutional violations occurred in this district and all
parties are located here. See 28 U.S.C. §1391.
II.
STANDARDS OF REVIEW
A.
Motion to Dismiss
The defendants’ 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,
5
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of”
necessary elements of the plaintiff's cause of action. Id. Furthermore, in order
to satisfy federal pleading requirements, the plaintiff must “provide the
grounds of his entitlement to relief,” which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544,
127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See 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).
6
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).
B.
Section 1983
The school district, the school board and the school officials are state
actors for purpose of §1983. See Kline ex rel. Arndt v. Mansfield, 454
F.Supp.2d 258, 262 (E.D.Pa. 2006).
To state a claim under section 1983, a plaintiff must meet two threshold
requirements. He must allege: 1) that the alleged misconduct was committed
by a person acting under color of state law; and 2) that as a result, he was
deprived of rights, privileges, or immunities secured by the Constitution or
laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v.
Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels
v. Williams, 474 U.S. 327, 330-331 (1986). If a defendant fails to act under
color of state law when engaged in the alleged misconduct, a civil rights claim
under section 1983 fails as a matter of jurisdiction, Polk Cnty. v. Dodson, 454
U.S. 312, 315 (1981), and there is no need to determine whether a federal
right has been violated. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
7
“A defendant in a civil rights action must have personal involvement in
the alleged wrongs; liability cannot be predicated solely on the operation of
respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir.
1988). See also Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)(citing
Rode). “Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207.
Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir. 1997);
Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995). As explained
in Rode:
A defendant in a civil rights action must have personal
involvement in the alleged wrongs. . . . [P]ersonal
involvement can be shown through allegations of
personal direction or of actual knowledge and
acquiescence. Allegations of participation or actual
knowledge and acquiescence, however, must be
made with appropriate particularity.
Rode, 845 F.2d at 1207.
With respect to punitive damages for a §1983 violation, this remedy is
only available “when the defendant’s conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous indifference to the
federally protected rights of others.” Smith v. Wade, 461 U.S. 30 (1983).
Regarding federal civil rights claims, “reckless indifference” refers to the
defendant’s knowledge of the illegality of his actions, not the egregiousness
of his actions. Alexander v. Riga, 208 F.3d 419, 431 (3d Cir. 2000) (citing
8
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999)).
III.
DISCUSSION
A.
Punitive Damages Claim
It is well settled that the Supreme Court has held punitive damages may
not be awarded against municipalities under §1983. See City of Newport v.
Fact Concerts, Inc., 453 US 247, 271 (1981). In fact, as defendants note,
(Doc. 16 at 2, n. 1), plaintiff concedes that punitive damages are not
permissible against AHSD and against Mahon, Elia and Antonetti in their
official capacities. (Doc. 14 at 23-24). Thus, any claim for punitive damages
against defendants AHSD and its Board of Directors as well as against
Mahon, Elia and Antonetti in their official capacities is subject to dismissal.
However, plaintiff has also sued defendants Mahon, Elia and Antonetti in their
individual capacities and his claim for punitive damages against these
defendants in this capacity can proceed.
Based on the discussion below, the court finds, at this stage, that
plaintiff has sufficiently alleged “reckless indifference” with respect to the
knowledge of Mahon, Elia and Antonetti of the illegality of their actions to seek
punitive damages with respect to his pre-termination due process claim in
Count I under §1983. See Alexander v. Riga, 208 F.3d at 430-31. As further
discussed below, plaintiff’s stated constitutional claim will be allowed to
proceed as against AHSD, Mahon, Elia and Antonetti. Thus, the plaintiff’s
9
claim for punitive damages against defendants Mahon, Elia and Antonetti in
their individual capacities shall PROCEED. Plaintiff‘s claim for punitive
damages against AHSD and its Board of Directors as well as against Mahon,
Elia and Antonetti in their official capacities is DISMISSED WITH
PREJUDICE.
B.
Claims against Board of Directors and, Mahon,
Elia and Antonetti in their official capacities
To the extent plaintiff names the AHSD Board of Directors as a
defendant in addition to AHSD and sues Mahon, Elia and Antonetti in their
official capacities, these defendants are part of the District itself. See
Kentucky v. Graham, 473 U.S. 159, 165-166 (1985) (Section 1983 suits
against individuals in their official capacity “represent only another way of
pleading an action against an entity of which an officer is an agent.”) (citation
omitted). As defendants note, (Doc. 16 at 2, n. 1), plaintiff seemingly
concedes that his claims against AHSD Board of Directors and his claims
against Mahon, Elia and Antonetti in their official capacities merge with his
claims against the District. (Doc. 14 at 24). Thus, plaintiff’s claims against
AHSD Board of Directors and against Mahon, Elia and Antonetti in their
official capacities are redundant of the claims plaintiff asserts against AHSD.
See Swedron v. Borough, 2008 WL 5051399, *4 (W.D. Pa. Nov. 21, 2008)
(Court held that official capacity claims under §1983 against defendant police
officers should be dismissed since they were redundant of the claims against
10
defendant Borough) (citing Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir.
1988)); Brice v. City of York, 528 F.Supp.2d 504, 516 n. 19 (M.D. Pa. 2007)
(“claims against state officials in their official capacities merge as a matter of
law with the municipality that employs them.”); Burton v. City of Phila., 121
F.Supp.2d 810 (E.D. Pa. 2000);Donovan v. Pittston Area School Dist., 2015
WL 3771420, *5 (M.D.Pa. June 17, 2015) (Court dismissed with prejudice
plaintiff’s claims against board members of school district in their official
capacity as redundant of claims against school district); Hill v. Bor. of
Kutztown, 455 F.3d 225, 233 n. 9 (3d Cir. 2006).
As such, plaintiff’s claims against AHSD Board of Directors and against
Mahon, Elia and Antonetti in their official capacities are DISMISSED WITH
PREJUDICE. Defendant AHSD Board of Directors is DISMISSED WITH
PREJUDICE. Defendants Mahon, Elia and Antonetti however can be sued
under §1983 in their individual capacities in addition to defendant AHSD.
Donovan v. Pittston Area School Dist., 2015 WL 3771420, *16; Kohn v.
School Dist. of City of Harrisburg, 817 F.Supp.2d 487, 510 (M.D.Pa. 2011);
Damiano v. Scranton School District, 135 F.Supp.3d 255, 268-69 (M.D.Pa.
2015).
C. Suspension without Pay--Pre-Deprivation Due Process Claim
The 14th Amendment prohibits a state from “depriv[ing] any person of
life, liberty, or property without due process of law.” U.S. Const. amend. XIV,
§1. “[A] procedural due process analysis involves a two step inquiry: (1) does
11
the complaining party have a protected liberty or property interest and, if so,
(2) does the available process comport with all constitutional requirements.”
Bowen v. Ryan, 2006 WL 3437287 (M.D. Pa. Nov. 29, 2006) aff'd, 248
F.App’x 302 (3d Cir. 2007); see also Shoats v. Horn, 213 F.3d 140, 143 (3d
Cir. 2000). To have a property interest in a job, “a person must have more
than a unilateral expectation of continued employment; rather, she must have
a legitimate entitlement to such continued employment.” Hill v. Borough of
Kutztown, 455 F.3d 225, 234 (citing Elmore v. Cleary, 399 F.3d 279, 282 (3d
Cir. 2005)). Whether a legitimate entitlement exists is a question of state law.
Hill, 455 F.3d at 234. Thus, while state law determines if an employee has a
property right in continued employment, the process that is due is a question
of federal law. McDaniels v. Flick, 59 F.3d 446, 458 (3d Cir. 1995).
Under Pennsylvania law, “[a] local government in Pennsylvania cannot
provide its employees with tenure status unless there exists some express
legislative authority for doing so.” Elmore, 399 F.3d at 282 (citing Stumpp v.
Stroudsburg Mun. Auth., 659 A.2d 333, 334 (Pa. 1995)). The Pennsylvania
legislature has granted professional employees a tenure status, and thus a
protected property interest in their jobs, specifying requirements for
termination of a contract. 24 Pa.C.S. §11–1122. Certified teachers are
professional employees. 24 Pa. C.S. §11–1101(1). Pennsylvania requires that
public school teachers hold a certificate. 24 Pa.C.S. §12-1201. A contract for
employment also confers a property right when “the contract itself includes a
12
provision that the state entity can terminate the contract only for cause.” Dee
v. Borough of Dunmore, 549 F.3d 225, 230-31 (3d Cir. 2008) (citing Unger v.
Nat’l Residents Matching Prog., 928 F.2d 1392 (3d Cir. 1991)).
“Denial of continued public employment can also constitute deprivation
of a liberty interest.” Baraka v. McGreevey, 481 F.3d 187, 209 (3d Cir. 2007)
(citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972)).”
In the public employment context, this liberty interest arises “[w]here a
person’s good name, reputation, honor, or integrity is at stake because of
what the government is doing to him.” Roth, 408 U.S. at 573 (quoting
Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)).
Plaintiff does not specifically allege if he holds a professional educator’s
certificate issued by the Pennsylvania Department of Education. However, he
alleges that he graduated from college and in 2013 he accepted a science
teacher position with AHMS which he held until May 2015. Also, in the PLRB
decision, (Doc. 1-1), it was indicated that plaintiff fell under the provisions of
the Pennsylvania School Code. Thus, it appears that at all relevant times he
was a professional educator employed by AHSD under the Pennsylvania
School Code. As such, plaintiff alleges that as a member of the Union he had
a protected property interest in his employment with AHSD.3
3
The court notes that a teacher without a certification is not a
professional employee under Pennsylvania law, and does not have a statutory
property interest in his employment. Coreia v. Schuylkill Cty. Area Vo-Tech
School Auth., 241 F.App’x 47, 50 (citing Occhipinti v. Bd. of Sch. Dirs. of Old
13
Defendants argue that plaintiff’s pre-deprivation due process claim
regarding his April 9, 2015 indefinite suspension without pay must be
dismissed since the meeting held that day provided him with all of the process
to which he was entitled, namely, he was aware that District officials were
questioning him about his contact with Student A and, he was given a chance
to respond to the charges and the evidence.
In Count I, plaintiff alleges that prior the April 9, 2015 meeting
defendants failed to give him notice of the charges against him and, that at
the meeting they merely asked him vague questions about only two of seven
alleged incidents which were later contained in his Notice of Dismissal. He
also alleges that “[a]t no time prior to his suspension without pay did the
defendants provide [him] with an explanation of any of [their] evidence against
him”, and “with a meaningful opportunity to present his side of the story.” As
such, plaintiff claims that defendants deprived him of a legitimate property
interest without due process in violation of the Fourteenth Amendment which
caused him to suffer considerable harm.
Plaintiff contends that he has asserted a cognizable pre-deprivation
procedural due process claim since his April 9, 2015 meeting was not a
Forge Sch. Dist., 464 A.2d 631, 632 (Pa.Cmwlth. 1983)(holding that teacher
ceases to be a “professional employee” when certification lapses)). Thus, if
plaintiff was not certified at the time he was terminated, he was not a
professional employee under Pennsylvania law, and may not have had a
statutory property interest in his employment at the time he was fired. See
Occhipinti, 464 A.2d at 632.
14
hearing and did not satisfy the due process requirements, i.e., he was not
given notice of all of the grounds and his suspension without pay resulted in
his permanent discharge. No doubt that this court as well as other courts have
held that suspensions of public employees without pay require pre-deprivation
process. See Moffitt v. Tunkhannock Area School Dist., 2013 WL 6909958
(M.D.Pa. Dec. 31, 2013) (plaintiff was suspended indefinitely without pay);
see also Coover v. Saucon Valley Sch. Dist., 955 F.Supp. 392, 404 (E.D.Pa.
1997) (“A public employee has a property interest in not being suspended
without pay with intent to dismiss.”) (citation omitted); Markovich v. Panther
Valley School District, 2014 WL 3735292 (M.D.Pa. July 28, 2014) (this court
denied defendants’ motion to dismiss pre-deprivation due process claim since
plaintiff ROTC instructor alleged he did not receive an adequate explanation
of the charges against him and that he did not have an opportunity to defend
himself).
As stated in Moffitt v. Tunkhannock Area School District, 160 F.Supp.3d
786, 793 (M.D.Pa. 2016):
Prior to termination, Loudermill requires “a pretermination
opportunity to respond, coupled with post-termination
administrative [or judicial] procedures.” Morton v. Beyer, 822 F.2d
364, 367 (3d Cir. 1987) (quoting Loudermill, 470 U.S. at 546, 105
S.Ct. 1487). The pretermination hearing, “though necessary, need
not be elaborate,” and it must at least entail: 1) “oral or written
notice of the charges,” 2) “an explanation of the employer’s
evidence,” and 3) “an opportunity for the employee to tell his side
of the story.” Loudermill, 470 U.S. at 545, 105 S.Ct. 1487.
Thus, since plaintiff Yelland was a public employee with a legitimate
15
interest in continued employment, he was entitled to “oral or written notice of
the charges against [him], an explanation of the employer’s evidence, and an
opportunity to present [his] side of the story” before his employment was
terminated. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct.
1487, 84 L.Ed.2d 494 (1985).
“‘[D]ue process is flexible and calls for such procedural protections as
the particular situation demands.’” Biliski v. Red Clay Consol. Sch. Dist. Bd.
Of Educ., 574 F.3d 214, 220 (3d Cir. 2009) (quoting Gilbert v. Homar, 520
U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997)). “[W]here it would be
impractical to provide pre-deprivation process, post-deprivation process
satisfies the requirements of the Due Process Clause.” Gilbert v. Homar, 520
U.S. at 930. Thus, a public employee is not absolutely entitled to a
pre-suspension hearing. Id.; see also Gilbert v. Homar, 520 U.S. at 930
(Supreme Court “rejected the proposition that due process always requires
the State to provide a hearing prior to the initial deprivation of property.”).
To determine what process is due, the court must examine three
factors: 1) plaintiff’s interest in not being suspended without pay from April 9,
2015 through May 7, 2015; 2) AHSD’s interest in expeditiously disciplining
unsatisfactory employees and “the avoidance of administrative burdens;” and
3) the risk of erroneous deprivation. Biliski, 574 F.3d at 221; see also Hertzler
v. West Shore School Dist., 2013 WL 53982, *3. Plaintiff had an interest in his
job and his pay, Hertzler, 2013 WL 53982, *3, and he did not receive his
16
salary during his entire suspension. Thus, plaintiff’s interest is great. AHSD
also had a significant interest in promptly disciplining employees that are
alleged to have committed wrongdoing and in protecting the integrity of the
district. See Jerrytone v. Musto, 167 Fed.Appx. at 301 (state had strong
interest in “maintaining public confidence in the school system”). The risk of
erroneous deprivation was also great since plaintiff alleges that he did not
receive notice of all of the charges against him, that he was not afforded an
opportunity to respond to all of the charges and that the information
supporting the charges was not reliable.
In light of the above, the court finds that plaintiff Yelland has made a
plausible claim that he was deprived due process of law prior to his indefinite
suspension without pay, i.e., plaintiff had a property interest in continued
employment with AHSD and the three-step balancing test set forth in
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976),
weighs in favor of requiring a pre-deprivation hearing. Thus defendants’
motion fails under the Gilbert exception. The parties will be permitted to
conduct discovery regarding plaintiff’s claim in Count I including an
examination of the complete facts as to what transpired during the April 9,
2015 meeting. The court will not conduct an analysis at this early stage of the
case as to the facts regarding the meeting and whether plaintiff was afforded
his due process rights. After discovery, the parties will be permitted to file a
summary judgment motion with respect to this claim if they so choose.
17
Thus, at this juncture of the case, plaintiff has sufficiently alleged that
the pre-deprivation procedures utilized by the defendants were not adequate
to meet due process requirements particularly since he was suspended
indefinitely without pay and he alleges that he suffered a serious adverse
employment action one month later. See Markovich, 2014 WL 3735292, *6;
Mariano v. Borough of Dickson City, Civil No. 13-97, M.D.Pa. (Dec. 2, 2013);
Moffit, 160 F.Supp.3d at 793-94 (“Although advance notice is not required,
Gniotek, 808 F.2d at 244, ‘for the informal discussion contemplated by
Loudermill to be meaningful, the employee must be apprised of the nature of
the charges against him or her before or at the time the hearing begins,
Morton, 822 F.2d at 371 (3d Cir.1987).”). Also, in Moffitt, 160 F.Supp.3d at
794, “[t]o the extent that the plaintiff answered questions during the meeting,
this did not clearly consist of a meaningful opportunity for the plaintiff to tell his
side of the story.” Discovery is needed in the present case to determine
whether the April 9, 2015, meeting afforded plaintiff Yelland a meaningful
opportunity to tell his side of the story, especially since he alleges that he was
only apprised of two out of the seven charges against him.
As such, plaintiff’s pre-deprivation due process claim regarding his
suspension without pay shall PROCEED as against Mahon, Elia and Antonetti
in their individual capacities.
Since AHSD is a municipal agency, the standards annunciated in Monell
apply to it. See Malles v. Lehigh County, 639 F.Supp.2d 566 (E.D.Pa. 2009).
18
Under the Supreme Court precedent of Monell v. Dep’t. of Soc. Servs., 436
U.S. 658, 694 (1978), a municipality can be held liable under §1983 only if the
plaintiff shows that the violation of his federally protected rights resulted from
the enforcement of a “policy” or “custom” of the local government. A court may
find that a municipal policy exists when a “‘decisionmaker possess[ing] final
authority to establish municipal policy with respect to the action’ issues an
official proclamation, policy, or edict.” Andrews v. City of Philadelphia, 895
F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475
U.S. 469, 481 (1986)). It is also possible for a court to find the existence of a
municipal policy in “the isolated decision of an executive municipal
policymaker.” City of St. Louis v. Praprotnik, 485 U.S. 112, 139 (1988). “A
course of conduct is considered to be a ‘custom’ when, though not authorized
by law, ‘such practices of state officials [are] so permanent and well settled’
as to virtually constitute law.” Andrews, 895 F.2d at 1480 (citations omitted).
There must be a “direct causal link” between the municipal policy or custom
and the alleged constitutional violation. City of Canton, Ohio v. Harris, 489
U.S. 378, 385 (1989).
Moreover, a municipality such as AHSD is not liable under §1983
merely for employing someone who violates a person’s civil rights; rather, a
municipality that does not directly violate a person’s civil rights is liable only
where it has in place a policy or custom that led to the violation. See Mann v.
Palmerton Area School Dist., 33 F.Supp.3d 530, 540-41 (M.D.Pa.
19
2014).(“Municipal liability only attaches when a plaintiff demonstrates that an
official policy or custom caused the asserted constitutional deprivation.”
(citation omitted). The plaintiff bears the burden of identifying the policy or
custom. Id. This rule ensures that a municipality will only be liable where it is
the “moving force” behind the plaintiff's injury. Id. “Additionally, if the policy at
issue relates to a failure to train or supervise municipal employees, “liability
under section 1983 requires a showing that the failure amounts to ‘deliberate
indifference’ to the rights of persons with whom those employees will come
into contact.” Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)
(citation omitted).
At this stage, plaintiff’s complaint, while sparse, sufficiently states a
municipal liability claim against AHSD under Monell with respect to his 14th
Amendment pre-deprivation due process claim in Count I. (Doc. 1 at ¶’s 119121). See Moeck v. Pleasant Valley School Dist., 983 F.Supp.2d 516, 524
(M.D.Pa. 2013). Plaintiff must allege that AHSD unconstitutionally
implemented or executed a policy statement, ordinance, regulation, decision
or custom leading to the stated violation of his constitutional rights. Mann v.
Palmerton Area School Dist., 33 F.Supp.3d at 540. Further, plaintiff must
show that the alleged unlawful conduct of the three individual defendants
regarding his suspension and termination constitutes a policy made by
“decisionmaker[s] possess[ing] final authority to establish municipal policy”
who “issue[] an official proclamation, policy, or edict.” Beck v. City of
20
Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Plaintiff can also show a custom
by “evidence of knowledge and acquiescence.” Id. If plaintiff establishes a
custom, he must also “demonstrate that, through its deliberate conduct,
[AHSD] was the ‘moving force’ behind [his alleged due process violation].” Bd.
of County Comm'rs of Bryan County v. Bryan, 520 U.S. 397, 404, 117 S.Ct.
1382, 137 L.Ed.2d 626 (1997).
Thus, defendants’ motion to dismiss plaintiff’s pre-deprivation due
process claim raised in Count I of his complaint is DENIED since plaintiff, at
this stage of the litigation, states a cognizable claim under Fed.R.Civ.P.
12(b)(6) against the three individual defendants and AHSD.
D. Post-Deprivation Due Process Claim, Count II
In Count II of his complaint, plaintiff alleges that his post-termination due
process rights were violated when the defendants refused to arbitrate his
wrongful termination claim as required by the CBA. Plaintiff states that he is
entitled to arbitrate the defendants’ decision to terminate him and that he
elected to arbitrate his termination in May of 2015 under the CBA. However,
he contends that the defendants have refused to arbitrate up to the present
time. Specifically, plaintiff alleges that “defendants refused to provide [him]
with the wrongful discharge arbitration to which he is undeniably entitled
under the CBA and applicable law.” (Doc. 14 at 10). He states that
“defendants’ refusal to arbitrate continues to this very day—even though the
[PLRB] ordered defendants to participate in arbitration as recently as last
21
summer.” (Id.).
No doubt that on September 25, 2015, the Union filed a charge with the
PLRB against AHSD claiming that the district violated the PERA by refusing
to arbitrate plaintiff’s grievance alleging that the District terminated him
without just cause.4 (See Doc. 1-1). On August 25, 2016, the PLRB hearing
examiner found that AHSD committed unfair practices in violation of the
PERA and ordered the District to “[i]mmediately submit to the Union in writing
an offer to arbitrate the Yelland Grievance.” (Id. at 12). Plaintiff states that
despite this order, defendants still refuse to arbitrate.
Defendants concede that plaintiff began to avail himself of his
administrative remedies under the CBA by seeking arbitration but point out
that they objected to arbitration claiming that plaintiff waived his right to
arbitrate based on timeliness. However, AHSD’s objection did not prevail and
the District was ordered to participate in arbitration by the PLRB about five
months ago. Subsequently, AHSD appealed the PLRB’s decision and its
appeal is presently pending. (Doc. 16 at 2 n. 2). Thus, defendants contend
that plaintiff’s post-termination due process claim is not yet ripe since AHSD’s
appealed the decision of the PLRB hearing examiner and no decision
regarding its appeal has been rendered. The State has thus not yet finally
4
As the court noted in Singleton v. Pitts. Bd. Of Educ., 2013 WL
3305486, *11 n. 11 (W.D.Pa. July 1, 2013), “[b]ecause the School District is
a Pennsylvania public school district, the CBA is governed by the Public
Employees Relations Act, 43 P.S. §1101.101 et seq.”
22
decided if AHSD must arbitrate plaintiff’s wrongful termination grievance.
Defendants state that arbitration may still be available to plaintiff and that their
appeal of the PLRB decision is currently pending at the State level. As such,
defendants contend that post-termination process is still available to plaintiff
in the State and it has not yet been foreclosed.
There is no question that plaintiff as a public school teacher is entitled
to a reasonably prompt, post-deprivation hearing before a neutral tribunal.
Loudermill, 470 U.S. at 547. As this court stated in Moffitt, 160 F.Supp.3d at
793, Loudermill requires “a pretermination opportunity to respond, coupled
with post-termination administrative [or judicial] procedures.” (quoting Morton,
822 F.2d at 367). “Generally, due process does not require an impartial
decisionmaker at the pretermination hearing provided the state affords ‘a
neutral tribunal at the post-termination stage.’” Heneghan v. Northhampton
Comm. College, 493 Fed.Appx. 257, 259-60 (3d Cir. 2012)(citation omitted).
A state provides constitutionally adequate procedural due process when
it provides reasonable post-deprivation remedies. DeBlasio v. Zoning Bd. of
Adjustment, 53 F.3d 592, 597 (3d Cir. 1995), overruled on other grounds sub
nom, United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392
(3d Cir. 2003). In Zinermon v. Burch, 494 U.S. 113, 125-26 (1990), the
Supreme Court stated:
a §1983 action may be brought for a violation of procedural
due process, but here the existence of state remedies is
23
relevant in a special sense. In procedural due process
claims, the deprivation by state action of a constitutionally
protected interest in “life, liberty, or property” is not in itself
unconstitutional; what is unconstitutional is the deprivation
of such an interest without due process of law. (citations
omitted). The constitutional violation actionable under
§1983 is not complete when the deprivation occurs; it is not
complete unless and until the State fails to provide due
process. Therefore, to determine whether a constitutional
violation has occurred, it is necessary to ask what process
the State provided, and whether it was constitutionally
adequate. This inquiry would examine the procedural
safeguards built into the statutory or administrative
procedure of effecting the deprivation, and any remedies for
erroneous deprivations provided by statute or tort law.
“When adequate post-deprivation procedures exist, a plaintiff must avail
him or herself of those procedures to properly state a procedural due process
claim.” Kairo-Scibek, 880 F. Supp. 2d at 561. The adequacy of a
post-deprivation hearing frequently depends on whether it is provided in a
timely manner. See Cleveland Board of Education v. Loudermill, 470 U.S. at
547 (“At some point, a delay in the post-termination hearing would become a
constitutional violation.”). However, in Loudermill, 470 U.S. at 547, the court
held that a nine month post-deprivation hearing delay “is not, of course,
unconstitutionally lengthy per se.” As stated, plaintiff availed himself of the
post-deprivation procedures available under the CBA by seeking arbitration
of his wrongful termination claim against the District as opposed to a hearing
before the board of school directors. The District objected to arbitration based
on timeliness but was ordered to arbitrate by the PLRB. The District then
24
appealed this decision and its appeal is pending.
The court recognizes that exhaustion of administrative remedies for a
due process claim under §1983 is not required. See Mariano, 40 F. Supp. 3d
at 419. Nonetheless, “a cause of action for a due process violation does not
accrue at Plaintiff’s suspension or termination, rather it accrues when Plaintiff
seeks to grieve [his] deprivation and is denied that opportunity.” Damiano, 135
F.Supp.3d at 274 (quoting Belas v. Juniata County School Dist., 2005 WL
2100666, *8 (M.D.Pa. Aug. 26, 2005)). It is not yet certain if plaintiff has been
denied his opportunity to challenge his termination at the State level despite
the delay in arbitration.
As the court stated in Singleton, 2013 WL 3305486, *11:
this [federal] Court does not have jurisdiction over appeals from
school board decisions to terminate public employees for cause.
[Plaintiff’s] only recourse, as a public school employee, was to
pursue the grievance procedure provided for under the CBA.
[Plaintiff] invoked the CBA, filed a grievance, and elected to
proceed to arbitration, where the Arbitrator upheld the School
District’s decision to terminate him for cause. “[I]n local public
employment disputes, the courts of common pleas have exclusive
jurisdiction to review an arbitrator’s award.” Scranton Sch. Dist. v.
Scranton Federation of Teachers, Local 1147, AFT, 43
Pa.Cmwlth. 102, 402 A.2d 1091, 1093 (Pa.Commw.Ct. 1979)
[citation omitted].
(Footnote omitted).
Plaintiff Yelland has not yet been denied the opportunity to challenge his
termination notwithstanding the delay in his request for arbitration since a final
decision from the State has not been made regarding the District’s recent
25
appeal of the PLRB’s August 25, 2016 decision directing it to arbitrate.
Plaintiff’s claim in Count II is premature at this point since there is still the
possibility that the District will be ordered to arbitrate his wrongful termination
claim at the State level and that this will constitute an adequate postdeprivation procedure. Simply put, plaintiff may still be able to utilize the
CBA’s grievance and arbitration procedures regarding his termination and his
post-deprivation process available in the State has not yet been foreclosed.
If an arbitration is held, either party can appeal the arbitrator’s decision to the
Lackawanna County Court of Common Pleas. Id. Then “[a]ny appeal from [an
order of the county court] should [be] taken to the Pennsylvania appellate
courts, not brought in federal court.” Id.
The Union’s grievance that AHSD did not have just cause to terminate
plaintiff’s employment has not yet been to arbitration. Nor has it been finally
determined by the State that the District must participate in arbitration. It
cannot be said that the post-deprivation procedures available to plaintiff in the
State failed to provide him with due process of law, a required showing for a
14th Amendment procedural due process claim. Biliski, 574 F.3d at 219. As
such, plaintiff does not have a cognizable post-deprivation due process claim.
See Hennehan, 493 Fed.appx. at 260-61 (Third Circuit held that since the
arbitration procedure in the CBA was available to plaintiff and plaintiff had a
pending state court action under the PERA seeking to compel arbitration of
his employment grievance, district court properly granted defendant college
26
summary judgment on plaintiff’s post-termination due process claim).
Thus, plaintiff’s
post-deprivation
procedural
due
process claim
contained in Count II of his complaint does not state a plausible claim against
the individual defendants and is DISMISSED.
Since the court finds that plaintiff has failed to state a cognizable postdeprivation due process claim against the individual defendants, plaintiff’s due
process claim in Count II based on municipal liability against AHSD, under
Monell, fails as a matter of law. See Deninno v. Municipality of Penn Hills, 269
Fed.Appx. 153, 158 (3d Cir. 2008) (“Even more fundamentally, there can be
no municipal liability here because we have determined that none of the
individual Defendants violated the Constitution.”).
Therefore, plaintiff’s post-deprivation due process claim against AHSD
in Count II is also DISMISSED. See Hertzler v. West Shore School Dist., 2013
WL 53982, *4-*5 (M.D.Pa. Jan. 03, 2013).
E. State Law Malicious Prosecution Claim, Count III
Plaintiff alleges that after he was suspended indefinitely without pay by
the defendants, Mahon, Elia and Antonetti proceeded to conduct a sham
investigation into the allegations against him and, they purposefully
manufactured inculpatory evidence and purposefully ignored exculpatory
evidence. (Doc. 1 at ¶75). Plaintiff then alleges that the sham investigation led
to a knowingly false report which defendants shared with the police and DA’s
office to try and convince them to file “a bogus criminal prosecution” against
27
him. (Id. at ¶77). The DA’s office then filed criminal charges against plaintiff
on May 7, 2015, namely, misdemeanor offenses of simple assault and child
endangerment, regarding only the April 8, 2015 incident with Student A.
Plaintiff was found not guilty of both charges by a jury in November 2015.
To state a claim for malicious prosecution under Pennsylvania law, a
plaintiff must allege that: (1) the defendants initiated a criminal proceeding; (2)
the criminal proceeding ended in 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. Zlomsowitch v. E.
Penn Twp., 2012 WL 1569633 (M.D. Pa. May 3, 2012) (citing Kelley v. Gen’l
Teamsters, Local Union 249, 518 Pa. 517, 544 A.2d 940, 941 (Pa. 1988)).
“[M]alice may be inferred from a lack of probable cause.” Logan v. Salem
Baptist Church of Jenkintown, 2010 WL 3364203, *2 (E.D.Pa. Aug. 7, 2010)
(citing Kelley, 544 A.2d at 941).
A private citizen can be held liable for a malicious prosecution claim
under Pennsylvania law if he “knowingly provides false information to law
enforcement” “because such an action ‘prevent[s] the police officer from
adequately exercising independent judgment as to whether criminal charges
should be instituted.’” Reiber v. Fillipone, 2016 WL 7034704, *2 (E.D.Pa. Dec.
2, 2016) (quoting Hess v. County of Lancaster, 514 A.2d 681, 683
(Pa.Commw.Ct. 1986)); see also Logan, 2010 WL 3364203, *2. “In order to
hold a private person responsible for the initiation of proceedings by a public
28
official, Hess stated it must ‘appear that his desire to have the proceedings
initiated, expressed by direction, request or pressure of any kind, was the
determining factor in the official’s decision to commence the prosecution, or
that the information furnished by him upon which the official acted was known
to be false.’” Id. (quoting Hess, 514 A.2d at 683). The Reiber Court, 2016 WL
7034704, *3, indicated that the concern in Hess “was that giving police false
information would prevent them from adequately exercising independent
judgment as to whether charges should be instituted.”
Plaintiff in the instant action alleges that his criminal prosecution was
initiated by fraud by defendants Mahon, Elia and Antonetti since they
knowingly provided criminal authorities with incomplete and/or biased
information and then pressured authorities to initiate criminal charges against
him for an improper purpose.
The court finds, at this stage of the litigation, that plaintiff has stated a
cognizable malicious prosecution claim under Pennsylvania law against
defendants Mahon, Elia and Antonetti. Plaintiff alleges that he was charged
due to the knowingly false and misleading information defendants provided
to the criminal authorities and that they pressured authorities to charge him.
After discovery, defendants can file a summary judgment motion if they
choose when the facts are in the record as to the information that they
possessed following their investigation, the completeness of the information
they provided to criminal authorities and, the existence of probable cause if
29
they were completely forthright with the authorities. See Reiber, 2016 WL
7034704, *4 (“Discovery will likely reveal the extent, if any, to which the
information provided to the police by the [defendant’s employees] was the
determining factor in the subsequent decision to criminally charge the
Plaintiffs.”). The Reiber Court concluded that “at the motion to dismiss stage,
taking all the allegations in the complaint as true and drawing all inferences
in Plaintiffs’ favor, the Court is unable to conclude as a matter of law that the
Plaintiffs’ arrests for harassment and disorderly conduct did not result from
the alleged false accusations made by [defendant’s] employees.” Id.
Moreover, even though the Magisterial District Judge bound over both
charges against plaintiff for trial on June 10, 2015, this does not establish as
a matter of law that probable cause existed precluding plaintiff’s claim for
malicious prosecution under Pennsylvania law. See Logan, 2010 WL
3364203, *3 (court found that complaint alleged defendants made knowingly
false statements to procure plaintiff’s prosecution, “and if the accusations
were known to be false, then defendants simply cannot be described as
acting with probable cause.”).
Finally, there is no dispute that the criminal proceedings terminated in
plaintiff’s favor. As such, the motion to dismiss Count III of the plaintiff’s
complaint filed on behalf of defendants Mahon, Elia and Antonetti is DENIED.
F.
QUALIFIED IMMUNITY
As their final argument, the defendants assert that, even if the court
30
rejects their arguments that plaintiff’s due process claims fail, his claims
against Mahon, Elia and Antonetti must be dismissed because they are
immune from suit under the doctrine of qualified immunity. As discussed, the
court has found that the pre-termination due process claim in Count I against
these defendants as well as the state law malicious prosecution claim against
them in Count III shall proceed and discovery will be conducted.
The doctrine of qualified immunity provides that government officials
performing “discretionary functions,” are shielded from suit if their conduct did
not violate a “clearly established statutory or constitutional right[ ] of which a
reasonable person would have known.” Wilson v. Layne, 526 U.S. 603, 609
(1999); Saucier v. Katz, 533 U.S. 194, 200-01 (2001); Reichle v. Howards,
––– U.S. ––––, 132 S.Ct. 2088, 2093 (2012)(“Qualified immunity shields
government officials from civil damages liability unless the official violated a
statutory or constitutional right that was clearly established at the time of the
challenged conduct.”). Qualified immunity provides not only a defense to
liability, but “immunity from suit.” Hunter v. Bryant, 502 U.S. 224, 227 (1991);
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
To determine whether defendants Mahon, Elia and Antonetti are entitled
to qualified immunity, the court must analyze two factors: 1) whether the
plaintiff has shown facts that make out a constitutional rights violation, and if
so, 2) whether those rights were “clearly established” at the time of the
incident. Pearson v. Callahan, 555 U.S. 223, 232 (2009); see also Perez v.
31
Borough of Berwick, 507 Fed.Appx. 186, 192 (3d Cir. 2012) (“To determine
whether the individual officers are entitled to qualified immunity, the District
Court [is] required to consider whether, under the factual scenario of this
case, the officers were reasonable to believe that their actions did not violate
the [plaintiff’s] clearly established rights.”).
At the present stage of this case, and based on the above discussion,
it is premature to determine whether defendants Mahon, Elia and Antonetti
are entitled to qualified immunity. See Williams v. Papi, 30 F.Supp.3d 306,
314 (M.D. Pa. 2014) (“[T]he Third Circuit has cautioned that ‘it is generally
unwise to venture into a qualified immunity analysis at the pleading stage as
it is necessary to develop the factual record in the vast majority of cases’”)
(quoting Newland v. Reehorst, 328 F.App’x. 788, 791 n. 3 (3d Cir. 2009)). As
in the Williams case, the court finds that “a determination of qualified immunity
is inappropriate at the pleading stage” in the present case. Id.; Donovan, 2015
WL 3771420, at *10.
The court has found that plaintiff stated a cognizable constitutional claim
under the 14th Amendment against defendants Mahon, Elia and Antonetti in
Count I. As such, the court does not find at this stage of the case that
qualified immunity exists as a matter of law. After discovery is conducted by
the parties and the factual record is fully developed, defendants Mahon, Elia
and Antonetti can re-assert the qualified immunity defense in a summary
judgment motion if appropriate. See Kopec v. Tate, 361 F.3d 772, 777 (3d Cir.
32
2004) (“defendant[] can still win on summary judgment if the district court
concludes, after resolving all factual disputes in favor of the plaintiff, that the
officer’s use of force was objectively reasonable under the circumstances.”)
(citations omitted).
V.
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss, (Doc. 6),
plaintiff’s complaint, (Doc. 1), is GRANTED IN PART and DENIED IN PART.
Defendants’ motion to dismiss is GRANTED with respect to defendant AHSD
Board of Directors who are DISMISSED WITH PREJUDICE. Defendants’
motion to dismiss all of plaintiff’s claims against Mahon, Elia and Antonetti,
including his claim for punitive damages, in their official capacities is
GRANTED and all of these claims are DISMISSED WITH PREJUDICE.
Defendants’ motion to dismiss is GRANTED with respect to plaintiff’s 14th
Amendment post-deprivation procedural due process claim contained in
Count II of his complaint and this claim is DISMISSED. Defendants’ motion
to dismiss plaintiff’s 14th Amendment pre-deprivation procedural due process
claim contained in Count I of his complaint is DENIED and this claim is
PERMITTED TO PROCEED against AHSD and, against Mahon, Elia and
Antonetti in their individual capacities. Plaintiff’s claim for punitive damages
regarding Count I against Mahon, Elia and Antonetti in their individual
capacities is PERMITTED TO PROCEED. Defendants’ motion to dismiss
33
plaintiff’s state law malicious prosecution claim contained in Count III of his
complaint is DENIED and, this claim against Mahon, Elia and Antonetti is
PERMITTED TO PROCEED.
Finally, defendants AHSD, Mahon, Elia and Antonetti will be directed to
file their answer(s) to the remaining claims of plaintiff’s complaint within
fourteen (14) days of the date of the court’s order. A separate order shall
issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: February 9, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-2080-01.wpd
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