EATON v. FIGASKI et al
Filing
105
MEMORANDUM OPINION re 25 MOTION for Judgment on the Pleadings filed by MILLCREEK TOWNSHIP, 31 MOTION for Judgment on the Pleadings filed by JOHN GROH, RICHARD P. FIGASKI, 27 MOTION for Judgment on the Pleadings filed by MICHAEL TESORE, LESLEY MITCHELL, ROBERT J. BUCKO. An appropriate Order follows. Signed by Judge Susan Paradise Baxter on 3/14/19. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LAURA J. EATON,
Plaintiff,
v.
RICHARD FIGASKI, et al,
Defendants.
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Civil Action No. 1:16-cv-279
District Judge Baxter
MEMORANDUM OPINION1
United States District Judge Susan Paradise Baxter
Three separate motions for judgment on the pleadings are before the Court: one by
Defendant Millcreek Township [ECF No. 25]; one by Defendants Bucko, Mitchell and Tesore
(the Police Defendants) [ECF No. 27]; and one by Defendants Figaski and Groh (the Township
Supervisor Defendants) [ECF No. 31].2 Plaintiff has filed a brief in opposition to each of the
separate motions for judgment on the pleadings [ECF No. 34 (Opposition to Millcreek
Township’s motion); ECF No. 36 (Opposition to Police Defendants’ motion); ECF No. 37
(Opposition to Township Supervisor Defendants’ motion)], and each set of Defendants has filed
a Reply Brief [ECF No. 35 (Reply by Millcreek Township); ECF No. 38 (Reply by Police
Defendants); ECF No. 39 (Reply by Township Supervisor Defendants)]. The motions are ripe for
review.
1
The parties consented to having a United States Magistrate Judge exercise jurisdiction over this matter. 28 U.S.C. §
636, et seq. ECF No. 8; ECF No. 21. On September 14, 2018, the undersigned was elevated to the position of United
States District Judge and this case remained assigned to her.
2
Defendants are represented by the same counsel. No issue of conflict of interest was raised by Plaintiff by the filing
of separate motions. Nonetheless, the prudence of this strategy is questionable based on both the failed references to
each of the other Defendants’ motions and the incorporation attempts, as will be discussed later in this opinion.
1
This action is the fallout from the filing of four criminal charges against Ms. Eaton by the
Police Defendants, charges which Erie County’s District Attorney refused to pursue and quickly
dismissed. Prior to the filing of the criminal charges, Plaintiff Laurie Eaton, the director of a nonprofit social services organization, was publicly critical of the Township Supervisor Defendants
about their decision to prematurely terminate a lease agreement between her organization and the
Township. Ms. Eaton alleges that the Police Defendants, prompted by the Township Supervisor
Defendants, filed criminal charges of theft of Township property and trespass in retaliation for
her criticism.
Standard of Review
Under Federal Rule of Civil Procedure 12(c), judgment on the pleadings will not be
granted unless the movant clearly establishes that no material issue of fact remains to be resolved
and that he/she is entitled to judgment as a matter of law. Rule 12(b)(6) provides the standard of
review applicable to motions for judgment on the pleadings: the court must accept the factual
allegations as true and draw all reasonable inferences presented in the pleadings in the light most
favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93-4 (2007); Lum v. Bank of
America, 361 F.3d 217, 223 (3d Cir. 2004). “This ‘does not impose a probability requirement at
the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of’ the necessary element.” Phillips v. Cty. Of Allegheny,
515 F.3d 224, 234, quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544, 556 n.3 (2007).
The Third Circuit has provided a roadmap for these determinations:
First, the court must ‘tak[e] note of the elements a plaintiff must
plead to state a claim.’ Second the court should identify allegations
that, ‘because they are no more than conclusions, are not entitled to
the assumption of truth.’ Finally, ‘where there are well-pleaded
2
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for
relief.’
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010).
Millcreek Township’s Motion for Judgment on the Pleadings
Defendant Millcreek Township brings its motion against allegations found in Count Four
and Count Five of the Complaint.3 ECF No. 25. Taking Count Five, entitled Abuse of Process &
Malicious Prosecution, first, the Court finds that the complaint only brings these state law claims
against the individual Defendants. See ECF No. 1, ¶ ¶ 92-93. To the extent that Defendant
Millcreek seeks judgment in its favor as to Count Five, it will be granted.
Count Four, on the other hand, reads as a Monell claim against Millcreek Township. ECF
No. 1, ¶ ¶ 68, 87-88. Under the seminal case of Monell v. Dep't of Soc. Servs., 436 U.S. 658
(1978), a municipality or local governing body cannot be held liable under § 1983 for the
constitutional torts of its employees by virtue of the doctrine of respondeat superior; however,
“when execution of a government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy, inflicts the injury … the
government as an entity is responsible under § 1983.” Id. at 694. The Third Circuit identifies
three ways in which a municipality may be liable for the torts of its employees:
First, the municipality will be liable if its employee acted pursuant to a formal
government policy or a standard operating procedure long accepted within the
government entity; second, liability will attach when the individual has policy
Because the Complaint makes general allegations, which all Defendants complain “do not differentiate between
the acts of individual Defendants,” Defendant Millcreek Township “surmises” that the claims against it are found in
Counts Four and Five. ECF No. 26, Brief in Support of Motion for Judgment on the Pleadings, p. 1. The Court takes
the motion as it is brought, but when required must review the entire Complaint for any allegations that support its
claims.
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making authority rendering his or her behavior an act of official government
policy; third, the municipality will be liable if an official with authority has
ratified the unconstitutional actions of a subordinate, rendering such behavior
official for liability purposes.
McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005) (emphasis added).
When a § 1983 claim is asserted against a municipality, the complaint must allege that
the plaintiff’s constitutional rights were violated by the execution of an official policy or custom
of the municipality. Monell, 436 U.S. at 694. See also Bd. of Cty. Comm'rs of Bryan Cty. v.
Brown, 520 U.S. 397, 403 (1997). In order to state a facially plausible Monell claim, the plaintiff
must allege: (1) a policy or custom that deprived the plaintiff of a federally protected right, (2)
that the municipality, by its “deliberate conduct,” acted as the “moving force” behind the alleged
deprivation, and (3) “a direct causal link between the municipal action and the deprivation of
federal rights.” Brown, 520 U.S. at 404.
Millcreek Township argues that Ms. Eaton has failed to state a Monell claim because 1)
she has not suffered a “deprivation of liberty consistent with the concept of a Fourth Amendment
seizure” (ECF No. 26, pages 8-11); and 2) not only is Defendant Police Chief Tesore not a policy
maker, no policy has been identified. Id. at pages 11-19. Despite these specific bases for the
motion and despite the fact that Plaintiff does not list the constitutional amendments upon which
her Monell claim against Millcreek Township is based (ECF No. 1, ¶ ¶ 87-90), the factual
allegations throughout the complaint, taken as true and examined in the light most favorable to
Plaintiff (see Erickson, 551 U.S. at 93-4), are sufficient to establish constitutional violations
based on the First Amendment. See, e.g., ECF No. 1, ¶¶ 60-62.
Millcreek Township also argues that (1) Plaintiff has failed to identify a policy that
caused the violation of her constitutional rights and (2) Chief Tesore is not a policy maker. For
purposes of Monell liability, a policy is defined as a “statement, ordinance, regulation, or
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decision officially adopted and promulgated by [a local governing] body’s officers.” Simmons v.
City of Philadelphia, 947 F.2d 1042, 1059 (3d Cir. 1991) (alteration in original) quoting Monell,
436 U.S. at 690).4 Significantly, a municipality “cannot be deemed to have engaged in a
constitutional violation by virtue of a policy [or] custom” in the absence of a “conscious decision
or deliberate indifference of some natural person.” Id. at 1063. A policymaker is an official with
“final unreviewable discretion to make a decision or take an action.” Andrews v. City of
Philadelphia, 895 F.2d 1469, 1481 (3d Cir. 1990). Accordingly, “to state a Monell claim upon
which relief may be granted, a complaint must include the identity of the municipality’s final
policymaker and factual allegations that ‘link the alleged offending policies or customs to’ that
final policymaker.” Verrecchia v. City of Philadelphia, 2017 WL 264388, at *6 (E.D. Pa. Jan. 19,
2017) quoting Rees v. Office of Children & Youth, 473 Fed.Appx. 139, 143 (3d Cir. 2012).
Ms. Eaton alleges that Chief Tesore, acting with or at the direction of the Supervisor
Defendants, followed a course of action that represented an official policy of Millcreek
Township “by directing that the criminal charges be filed against Plaintiff by the Defendants
Bucko and Mitchell, authorizing the filing of the charges and/or agreeing to the subordinate
Defendant officers’ decision to engage in the filing of the charges.” ECF No. 1, ¶ ¶ 69, 88.
Moreover, Ms. Eaton alleges that “[e]ven though the Erie County District Attorney called the
Defendant Tesore in order to arrange a meeting with the Township supervisors in an attempt to
prevent the filing of criminal charges against the Plaintiff, Tesore failed to intervene and instead”
directed his officers to accelerate the filing of the criminal charges. Id. at ¶ 70. Because “a single
Meanwhile, a custom is defined as “an act ‘that has not been formally approved by an appropriate decision-maker,’
but that is ‘so widespread as to have the force of law.’” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d
Cir. 2003) quoting Brown, 520 U.S. at 404. See also Roman v. City of Newark, ___ F.3d ___, ___, 2019 WL
348658, at *5 (3d Cir. Jan.29, 2019). This Court does not read the complaint as alleging a Monell claim based on
custom.
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decision by municipal policymakers” can result in liability for a municipality “under appropriate
circumstances” (Mulholland v. Government Cty. of Berks, Pa., 706 F.3d 227, 242 (3d Cir. 2013)
quoting McGreevy, 413 F.3d at 368), Ms. Eaton has satisfactorily identified a “policy” decision
sufficient to withstand Millcreek Township’s motion for judgment.
Finally, Millcreek Township argues that Tesore cannot be a policymaker because the
Second Class Township Code governing Millcreek Township vests all policymaking authority in
the Township Board of Supervisors, not the Police Chief. The Third Circuit has explained in a
different context, the simple fact that a statute provides that a governmental entity is the final
policymaker regarding some general responsibility does not mean that action by the
governmental entity is a prerequisite for imposition of liability under Monell. See McGreevy,
413 F.3d at 368. Similarly, here, the fact that the Second Class Township Code provides that the
Township is the final policymaker regarding “safety and welfare of [the Township’s] citizens”
and that the Township Supervisors are vested with “all of the policymaking power including over
the local police force” does not mean that a formal action by the Board is a prerequisite for the
imposition of liability on Millcreek Township. Ms. Eaton’s allegations are sufficient to state a
Monell claim and survive Defendant Millcreek Township’s motion.
Police Defendants’ Motion for Judgment on the Pleadings
The Police Defendants move for judgment on the pleadings as to Count One, Count Two,
Count Three and part of Count Five. ECF No. 27. The first three counts are brought under 28
U.S.C. § 1983 for violations of Plaintiff’s civil rights to be free of retaliatory prosecution,
malicious prosecution and abuse of process, and Count Five alleges malicious prosecution and
abuse of process as state law torts.
6
Beginning with Count One, Plaintiff alleges that Officers Bucko and Mitchell filed four
criminal charges against her without probable cause. Plaintiff further alleges that Bucko and
Mitchell acted under the “direction, supervision, and/or acquiescence” of Tesore, Figaski and
Groh5 in retaliation for Plaintiff’s exercise of her First Amendment rights. ECF No. 1, ¶ ¶ 72-74.
“Official reprisal for protected speech ‘offends the Constitution because it threatens to
inhibit exercise of the protected right,’ and the law is settled that as a general matter the First
Amendment prohibits government officials from subjecting an individual to retaliatory actions,
including criminal prosecutions, for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006)
quoting Crawford-El v. Britton, 523 U.S. 574, 588, 594, n.10 (1998). In order to state a claim of
retaliation under the First Amendment, a plaintiff must allege “(1) constitutionally protected
conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising
his constitutional rights, and (3) a causal link between the constitutionally protected conduct and
the retaliatory action.” Turkos v. Dupont Borough, 721 F. App'x 208, 212 (3d Cir. 2018) quoting
Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). Additionally, if a retaliation
claim is based on a criminal prosecution (in other words, retaliatory prosecution), a plaintiff must
also allege the absence of probable cause for the underlying criminal charges. Id. citing Hartman,
547 U.S. at 265–66.
The Police Defendants contend that Plaintiff has failed to set forth sufficient factual
allegations to support the absence of probable cause.6 Because the probable cause determination
5
Importantly, the Township Supervisor Defendants Figaski and Groh have not moved for judgment as to this claim.
See ECF No. 31; ECF No. 32.
6
Defendants have submitted the Criminal Complaint, the Affidavit of Probable Cause, the Bail Bond, and a
Supplemental Police Report in support of this argument. ECF No. 28-1. The Court is permitted to consider, in
addition to the allegations of the Complaint, “documents that are attached 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.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256,
260 (3d Cir. 2006). However, this Court will not consider the evidence submitted by the Police Defendants at this
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is a fact-specific inquiry (see Maryland v. Pringle, 540 U.S. 366, 371 (2003)), its existence or
absence in a § 1983 action is generally a question for the trier of fact. Suydam v. Pennsylvania
State Police, 2018 WL 347785, at *3–4 (M.D. Pa. Jan. 10, 2018). A review of the allegations of
the Complaint in this regard highlights the factual nature of them, the dispute over them and their
impropriety as a basis for a ruling on the pleadings. Crucial to the inquiry here, there are factual
allegations that these were sham charges.
Plaintiff’s allegations that the five individual defendants, acting together, caused Plaintiff
to be criminally charged in retaliation and without probable cause paints a particular story with
the following factual allegations: (1) the timing of when the JOY seniors were told to inventory
items and by whom (ECF No. 1, ¶¶ 28, 29); (2) representations allegedly made to Plaintiff that if
the missing items were returned, no criminal charges would be filed against anyone (id. at ¶ 30);
(3) the missing items were returned a month before the criminal charges were filed (id. at ¶ ¶ 30,
40, 57); (4) the District Attorney’s thwarted attempt to intervene before the criminal charges
were filed (id. at ¶¶ 37, 38); and (5) the alleged multiple items of exculpatory evidence that were
excluded from the probable cause affidavit (id. at ¶ ¶ 41-43, 47, 50, 52). While Plaintiff must
ultimately prove every element of her claim at trial, her factual allegations relating to retaliatory
prosecution, rife with factual disputes, are sufficient to withstand a motion for judgment on the
pleadings. See Swope v. City of Pittsburgh, 90 F. Supp. 3d 400, 405 (W.D. Pa. 2014) citing
Oatway v. Am. Int’l Grp., Inc., 325 F.3d 184, 187 (3d Cir. 2003) (The question is not whether
the plaintiff will prevail in the end; rather, the question “is whether the plaintiff is entitled to
offer evidence in support of his or her claims.”).
juncture as some of it is beyond the scope of that referred to in the complaint and because Plaintiff challenges the
Affidavit of Probable Cause not for what it contains, but for what it lacks.
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As to Count Two, Plaintiff alleges that the five individual Defendants, including the
Police Defendants, acted together to cause criminal proceedings to be initiated against her
without probable cause and with malice or for an improper purpose. ECF No. 1, ¶ ¶ 77-81. See
also ECF No. 36, page 8 (referring to Count Two as a malicious prosecution claim under §
1983). Using the common law of Pennsylvania as a guide,7 in order to state a claim of malicious
prosecution under § 1983, a plaintiff must allege at least: “[1] the defendant ... instituted
proceedings against the plaintiff ... [2] without probable cause, ... [3] with malice, and ... [4] the
proceedings must have terminated in favor of the plaintiff.” Wagner v. N. Berks Reg'l Police
Dep't, 2018 WL 3361070, at *2 (E.D. Pa. July 10, 2018) quoting Kelley v. Gen. Teamsters,
Chauffeurs & Helpers, Local Union 249, 544 A.2d 940, 951 (Pa. 1988).
The Police Defendants argue that Ms. Eaton has not stated facts to satisfy a fifth element–
i.e., that she suffered some deprivation of liberty as a consequence of the legal proceeding. The
Court reads Ms. Eaton’s malicious prosecution claim to be based on the First Amendment, not
the Fourth Amendment. See generally, Torres v. McLaughin, 163 F.3d 169, 173 (3d Cir. 1998)
(“…[W]e do not read Albright [v. Oliver, 510 U.S. 266 (1994)] to hold that a malicious
prosecution claim can only be based on a Fourth Amendment violation. Accordingly, a § 1983
malicious prosecution claim may also include police conduct that violates the Fourth
Amendment, the procedural due process, or other explicit text of the Constitution.”); Merkley v.
Upper Dublin School District, 211 F.3d 782, 798 (3d Cir. 2000). Because of this, these civil
rights claims survive scrutiny here.8
7
The required elements of malicious prosecution as a civil rights claim are far from clear in this and other circuits.
See Third Circuit Model Jury Instructions, 4.13 Section 1983 – Malicious Prosecution at
www.ca3.uscourts.gov/model-civil-jury-table-contents-and-instructions.
The Court does not read the Police Defendants’ motion to include the part of Count Five relating to malicious
prosecution as a tort. Nonetheless, because the elements of the §1983 claim of malicious prosecution are based on
the state law claim, the same analysis and result apply.
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9
At Count Three, Plaintiff alleges that the five individual Defendants used the criminal
legal process against her in order “to accomplish a purpose for which it was not designed”
thereby violating Plaintiff’s constitutional rights to due process and in retaliation for the exercise
of her First Amendment right to freedom of speech. ECF No. 1, ¶ ¶ 83-85. The Police
Defendants and the Supervisor Defendants move for judgment as to the state law claim of abuse
of process only. ECF No. 27; ECF No. 31. Because the “elements necessary to establish a claim
for abuse of process … under Pennsylvania tort law and 42 U.S.C. § 1983 are the same” (Russoli
v. Salisbury Twp., 126 F. Supp. 2d 821, 858 (E.D. Pa. 2000)), this Court will liberally construe
their arguments as applying to both the federal and state law claims.
“[A] section 1983 claim for malicious abuse of process lies where prosecution is initiated
legitimately and thereafter is used for a purpose other than that intended by the law.” Jenn-Ching
Luo v. Owen J. Roberts Sch. Dist., 737 F. App'x 111, 116 (3d Cir. 2018), cert. denied 2019 WL
113156 (U.S. Jan. 7, 2019) quoting Rose v. Bartle, 871 F.2d 331, 350 n.17 (3d Cir. 1989). “The
gravamen of [a malicious abuse of process claim] is not the wrongful procurement of legal
process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process, no
matter how properly obtained, for any purpose other than that which it was designed to
accomplish.” Id. quoting Restatement (Second) of Torts § 682 cmt. a (1977). This important
distinction is determinative.
Plaintiff has not alleged that the criminal process was initiated against her legitimately
and then perverted to some other purpose; instead, Plaintiff alleges that criminal process was
initiated against her for no legitimate purpose. This does not state a claim of abuse of process
under either state or federal law and judgment will be entered in favor of all individual
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Defendants, including the Police Defendants Tesore, Bucko and Mitchell, on the entirety of
Count Three and the pertinent part of Count Five.
Township Supervisor Defendants’ Motion for Judgment on the Pleadings
The Township Supervisor Defendants move for judgment on the pleadings as to Count
Two, Count Three and part of Count Five. ECF No. 31. Having just discussed the substance of
these counts and the reasons for granting judgment on the pleadings in favor of Defendants in
Count Three and the pertinent part of Count Five, which determination includes these Township
Supervisor Defendants, attention will be paid solely on the argument made by them in opposition
to the allegations in Count Two.
There, the Supervisors rest on their argument that there are no allegations that they did
anything to “initiate the criminal process” against Ms. Eaton (ECF No. 32, page 2-3). Despite
this claim, Ms. Eaton’s allegations that Figaski and Groh avoided communication with the
District Attorney (who allegedly would have attempted to dissuade them from pursuing criminal
charges against her) and directed the Police Defendants to accelerate the filing of the criminal
charges before the District Attorney could intervene, ties them to the charges filed against
Plaintiff. ECF No. 1, ¶ 38. It is precisely the dispute over the accuracy of these allegations that
defeats judgment on the pleadings as to Count Two.
Motion for Judgment on the Pleadings as to all Defendants - Conspiracy
While there are a multitude of general averments throughout the complaint about the
individual Defendants acting in concert, Ms. Eaton does not have a separate count labeled
conspiracy, nor is she required to. Nonetheless, reading the allegations of conspiratorial acts as a
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whole, as required under the law, it is understandable that some Defendants have moved for
judgment on the pleadings on civil conspiracy because Plaintiff, in fact, alleges it.
Conspiracy claims under § 1983 differ slightly with those brought under state law
because under state law a complainant must also prove malice. “In order to prevail on a
conspiracy claim under § 1983, a plaintiff must prove that persons acting under color of state law
conspired to deprive him of a federal protected right.” Paterno v. Pennsylvania State University,
149 F.Supp.2d 530, 543-44 (E.D. Pa. 2016). Under Pennsylvania law, a plaintiff must
demonstrate that an overt unlawful act was “done in pursuance of the common purpose” by a
combination of two or more persons that must have caused “actual legal damage.” Montgomery
Cnty., Pa. v. MERSCORP, Inc., 904 F.Supp.2d 436, 453 (E.D.Pa.2012) citing Commw. v. TAP
Pharm. Prods., Inc., 36 A.3d 1112, 1144 (Pa.Commw.Ct.2011). Additionally, proof of malice is
an essential part of a cause of action for civil conspiracy in Pennsylvania and requires that “the
conspirators took unlawful actions with the specific intent to injure the plaintiff ....” Id., citing
TAP Pharm., 36 A.3d at 1185. Finally, in Pennsylvania civil conspiracy is not a separate cause of
action but instead requires an underlying tort. Boyanowski v. Capital Area Intermediate Unit,
215 F.3d 396, 405–06 (3d Cir.2000), abrogated on other grounds as recognized in, United Artists
Theatre Cir., Inc. v. Twp. of Warrington, PA, 316 F.3d 392 (3d Cir.2003).
Under both the federal and state standards, the Complaint contains sufficient allegations
that the individual Defendants worked in concert to deprive Plaintiff of her Constitutional right
to free speech and that they took the steps to prepare and file charges against her that were a
sham, as supported by the District Attorney refusing to pursue them. The factual allegations in
the Complaint tell a story of retaliation with specific intent to harm Plaintiff, and for state law
purposes, in furtherance of the underlying tort of malicious prosecution. Although the Complaint
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is not the model of clarity on these charges, a separate count is not needed to find sufficient
factual averments to satisfy Plaintiff’s claims of conspiratorial conduct among the individual
Qualified Immunity as to the Individual Defendants9
The doctrine of qualified immunity insulates government officials from liability for
damages insofar as their conduct does not violate clearly established rights. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “When properly applied” by the courts, the doctrine of qualified
immunity “protects all but the plainly incompetent or those who knowingly violate the law.”
Taylor v. Barkes, ___ U.S. ___, 135 S.Ct. 2042, 2044 (2015) quoting Ashcroft v. al-Kidd, 563
U.S. 731, 743 (2011). An officer performing his discretionary functions is “shielded from
liability for civil damages insofar as [his] conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Curley v. Klem, 278 F.3d
271, 277 (3d Cir.2002). It is a defendant’s burden to establish that he or she is entitled to
qualified immunity. See Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014) citing Harlow, 457
U.S. at 812.
The analytical framework that district courts have traditionally employed in determining
whether the defense of qualified immunity applied was set forth by the Supreme Court in Saucier
v. Katz, 533 U.S. 194, 201 (2001). Qualified immunity involves two inquiries: 1) do the facts
alleged show that a state actor violated a constitutional right? and 2) was that constitutional right
clearly established so that a reasonable person would know that their conduct was unlawful?
Id. Courts are accorded discretion “in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at
9
Defendant Millcreek Township cannot enjoy qualified immunity under the law as qualified immunity insulates
only individuals from liability.
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hand.” Pearson v. Callahan, 555 U.S 223, 236 (2009). The order is of no matter as both questions
may be answered in the affirmative at this stage from the allegations of the Complaint.
As discussed above, the facts as alleged are sufficient to show that all five of the
individual Defendants violated Ms. Eaton’s First Amendment right to free speech. As to the
second prong, a First Amendment right to be free from retaliatory speech is long established.
Hartman, 547 U.S. 250; Crawford-El, 523 U.S. 574; Perry v. Sindermann, 408 U.S. 593, 597
(1972) (noting that the government may not punish a person or deprive him of a benefit on the
basis of his “constitutionally protected speech”). All individual Defendants should have known
that their alleged conduct was unlawful. Defendants are free to continue to pursue qualified
immunity after discovery is completed in a dispositive motion, if the facts warrant, or take the
facts to a jury at trial. Eddy v. Virgin Islands Water and Power Auth., 256 F.3d 204, 210 n.3 (3d
Cir. 2001) (“Qualified immunity may be raised in a motion to dismiss at the pleading stage, in a
motion for summary judgment after discovery, or as an affirmative defense at trial.”); Foster v.
City of Philadelphia, 2014 WL 5821278, at *22 (E.D. Pa. 2014).
An appropriate Order follows.
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