BRONOWICZ v. ALLEGHENY COUNTY et al

Filing 96

MEMORANDUM ORDER indicating that, for reasons more fully stated within, Defendants' Motion to Dismiss 86 is denied; that Defendants shall file an Answer to Plaintiff's Second Amended Complaint by 12/23/15. Signed by Judge Nora Barry Fischer on 12/8/15. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RAYMOND BRONOWICZ,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ALLEGHENY COUNTY, PROBATION
OFFICER KAREN OLLIS, PROBATION
OFFICER JEFFREY CIMA, THOMAS
MCCAFFREY, Director of Allegheny County
Adult Probation,
Defendants.

Civil Action No. 12-1023
Judge Nora Barry Fischer

MEMORANDUM ORDER
This civil rights case arising out of probation violation proceedings against Plaintiff
Raymond Bronowicz in the Court of Common Pleas of Allegheny County returns to the Court on
remand following the decision of the United States Court of Appeals for the Third Circuit
affirming, in part, and reversing, in part, this Court’s dismissal of Plaintiff’s Second Amended
Complaint in its entirety.1 See Bronowicz v. Allegheny County, 2013 WL 5724520, (W.D. Pa.
Oct. 21, 2013), aff’d, in part, rev’d, in part, 804 F.3d 338 (3d Cir. 2015). Relevant here, the
Third Circuit affirmed the dismissal of Plaintiff’s § 1983 claims against the Probation Officers in
their “official capacities,” (Counts I, II, III, IV, and VI), and noted that the dismissal of the §
1983 claim against the Honorable Donald Machen, (Count IX), based on judicial immunity had
not been challenged on appeal. Id. at 348-49, n.11. The Court of Appeals likewise affirmed the
dismissal of Counts V and VII to the extent that said claims challenged two prior probation
violation cases against Plaintiff in 2005 and 2008, which were barred by Heck v. Humphrey, 512
U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), but reversed the dismissal of his claims
1

Given the two separate judicial opinions setting forth the facts pled in Plaintiff’s Second Amended
Complaint, the Court refrains from restating the facts a third time and rules summarily.

1

challenging the activities of the probation officers regarding the 2011 probation violation case,
holding that Heck did not bar those claims. Id. at 348-49. Finally, the state law claims pled at
Counts X, XI, XII and XIII must now be reinstated as the sole basis for this Court’s dismissal
was the lack of supplemental jurisdiction due to the federal claims being dismissed, a decision
which was not upheld. Id.
Given these rulings, Plaintiff’s Second Amended Complaint has been reduced to the
following claims:


Count V – § 1983 claim alleging violations of the Fourth, Fifth and
Sixth Amendments, as expressed through the Fourteenth
Amendment, against Probation Officers Ollis, Cima and Director
McCaffrey in their individual capacities, arising from the January
2011 probation violation proceedings;



Count VII – § 1983 claim alleging violations of the Fourteenth
Amendment’s protections of substantive and procedural due
process against Probation Officers Ollis, Cima and Director
McCaffrey in their individual capacities, arising from the January
2011 probation violation proceedings;



Count VIII – § 1983 Monell claim against Allegheny County and
Director McCaffrey, arising from the 2011 probation violation
proceedings;



Count X, violation of Pennsylvania Constitution, Article I, § 8
against Probation Officers Ollis and Cima and Director McCaffrey;



Count XI, violation of Pennsylvania Constitution, Article I, § 9
against Probation Officers Ollis and Cima and Director McCaffrey;



Count XII, common law claim for intentional infliction of
emotional distress against Probation Officers Ollis and Cima and
Director McCaffrey; and,



Count XIII, common law claim for malicious prosecution against
Probation Officers Ollis and Cima and Director McCaffrey.

With that background, the Court turns to the instant Motion to Dismiss filed by
2

Defendants Ollis, Cima, McCaffrey and Allegheny County, (Docket Nos. 86, 87), which is
opposed by Plaintiff, (Docket No. 95). Having fully considered the parties’ arguments and after
evaluating the allegations in Plaintiff's Second Amended Complaint, (Docket No. 52), in
accordance with the relevant legal standards governing motions brought under Rule 12(b)(6), see
e.g., Fantone v. Latini, 780 F.3d 184, 186 (3d Cir. 2015), i.e., accepting all well-pled factual
allegations as true and drawing all reasonable inferences in Plaintiff’s favor, as this Court must,
and for the following reasons, Defendants’ Motion to Dismiss is [86] denied, without prejudice
to Defendants raising any applicable defenses at a later stage of the litigation.
Initially, the Court overrules Defendants’ argument that Count V must be dismissed
based on the “explicit source rule” because such count is allegedly “an attempt by Plaintiff to replead” the causes of action that he has separately pled at Counts I, II and III. (Docket No. 87 at
2). As noted above, Counts I, II, and III were dismissed by this Court, and affirmed on appeal,
see Bronowicz, 804 F.3d at n.11, such that there is no redundancy in those particular claims.
Similarly, Cima’s motion to dismiss Count V against him on the basis that any Fourth
Amendment claim stated in Count V is “already addressed in Count I” fails for the same reason.2
Id. Accordingly, Defendants’ motion to dismiss Count V relying on these theories is denied.
Defendant McCaffrey also moves for dismissal of the § 1983 claims against him on the
alleged basis that Plaintiff is improperly seeking to hold him responsible for the conduct of the
probation officers under a theory of respondeat superior. (Docket No. 87 at 2-4). But, the wellpled allegations set forth in Plaintiff’s Second Amended Complaint delineate that Director
McCaffrey was personally involved in the constitutional violations in this case as he was
allegedly, among other things, aware of the past problems with probation officers making false

2

Further, Cima’s motion to dismiss Count VI, (Docket No. 87 at 9), is denied, as moot, the Court having
previously dismissed Count VI, with such dismissal being affirmed by the Court of Appeals.

3

charges against probationers and later providing false information to Judges that said
probationers had reached plea agreements to resolve same in an effort to persuade Judges to
enter orders without requiring the probationer to appear in court. See e.g. Argueta v. United
States Immigration & Customs Enforcement, 643 F.3d 60, 72 (3d Cir. 2011) (“‘It is ... possible to
establish [§] 1983 supervisory liability by showing a supervisor tolerated past or ongoing
misbehavior”). Plaintiff also avers that Director McCaffrey was aware of the probation officers’
specific actions in his case and acquiesced or agreed to their actions, further implicating him in
the alleged constitutional deprivations. See McKenna v. City of Phila., 582 F.3d 447, 460 (3d
Cir. 2009) (“[A] supervisor must have been involved personally, meaning through personal
direction or actual knowledge and acquiescence, in the wrongs alleged.”). Thus, McCaffrey’s
motion to dismiss arguing that Plaintiff failed to sufficiently plead personal liability against him
is denied.
Next, Defendants’ motion to dismiss is denied to the extent that they maintain that
Counts V, VII and VIII must be dismissed due to the alleged intervening acts of Judge Machen,
relying on Barr v. Clarion County, 417 F. App’x 178 (3d Cir. 2011). (Docket No. 87). In this
Court’s estimation, Barr is distinguishable because Plaintiff has alleged that the Defendant
Probation Officers fabricated probation violation charges against him, falsely arrested and
incarcerated him and that Ollis provided false information to Judge Machen concerning a nonexistent plea agreement that he accepted due to these misrepresentations. (See Docket No. 52).
As the Court of Appeals noted in footnote 6 in Barr, it “adhere[s] to the well-settled principle
that, in situations in which a judicial officer or other independent intermediary applies the correct
governing law and procedures but reaches an erroneous conclusion because he or she is misled in
some manner as to the relevant facts, the causal chain is not broken and liability may be imposed

4

upon those involved in making the misrepresentations or omissions.” Egervary v. Young, 366
F.3d 238, 250 (3d Cir. 2004). Hence, in light of the above noted allegations, Plaintiff has stated
sufficient facts to overcome the asserted superseding cause of Judge Machen’s judicial act
rendering dismissal on this theory inappropriate. Id.
Defendants have also raised immunity defenses to the federal claims but have not met
their burden to demonstrate that these affirmative defenses appear clearly on the face of the
Second Amended Complaint. See Leveto v. Lapina, 258 F.3d 156, 161-62 (3d Cir. 2001).
Rather, the Court believes that these defenses are invoked in cursory fashion and are largely
unsupported at this juncture of the case such that they must be denied, without prejudice. In this
regard, Ollis maintains that she is entitled to absolute immunity as she was performing
adjudicatory functions at the January 2011 probation violation hearing, (Docket No. 87), but
Plaintiff has alleged that she was engaged in broader, executive and investigative functions to
which absolute immunity would not attach such as, among other things, charging plaintiff with
probation violations, arresting him and appearing at a probation violation hearing not as a
hearing officer but in more of a prosecutorial role. See Wilson v. Rackmill, 878 F.2d 772, 775-76
(3d Cir. 1989).3 With respect to the alternative theory of qualified immunity, again, Plaintiff has
pled that the probation violation charges lodged against him by the Probation Officers were
fabricated, he was wrongly arrested and incarcerated as a result and then sentenced to
imprisonment after Ollis provided false information to the Judge about a non-existent plea
3

The Third Circuit held that:
We must examine the allegations of appellant's complaint to discern whether
appellant alleged that the two defendants performed adjudicatory duties,
entitling them to absolute immunity, or executive and administrative duties,
entitling them to qualified or good faith immunity. In order for the defendants to
succeed on a Rule 12(b)(6) dismissal based on absolute immunity, the
allegations of appellant's complaint must indicate the existence of absolute
immunity as an affirmative defense; the defense must clearly appear on the face
of the complaint.
Wilson, 878 F.2d at 775-76.

5

agreement. (Docket No. 52). Defendants’ position essentially ignores all of these well-pleaded
factual averments and does not raise any other basis for qualified immunity to attach. See Estate
of Lagano v. Bergen Cnty. Prosecutor’s Office., 769 F.3d 850, 858 (3d Cir. 2014) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)) (to determine whether qualified immunity
applies to a particular claim, this Court must engage in a two pronged analysis to decide “'(1)
whether the plaintiff alleged sufficient facts to establish the violation of a constitutional right,
and (2) whether the right was 'clearly established' at the time of the defendant's actions.”).
Accordingly, Plaintiff’s averments, if proven, suffice to defeat the bare assertions of qualified
immunity by the Probation Officers and Director McCaffrey at this point in the litigation.
With respect to the Monell claim asserted at Count VIII, the asserted bases for dismissal
are that Allegheny County cannot be liable for the activities of elected Judges or Probation
Officers, as these are Commonwealth employees whom they neither employ nor control.
(Docket No. 87).

However, the scope of the allegations in Plaintiff’s Second Amended

Complaint reach beyond those allegations and also include that an Assistant District Attorney, a
county-employee, was involved with the Probation Officers in rearranging charges in a manner
that provided a basis for the probation violation proceedings in 2011 which Plaintiff contends
were illegal. (See Docket No. 52 at ¶¶ 41, 43, 53). Given such allegations, the Court cannot find
that the County’s affirmative defense supports dismissal based solely on the face of the Second
Amended Complaint. See e.g., Morgan v. Covington Tp., 648 F.3d 172, 178-79 (3d Cir. 2011);
Bohus v. Restaurant.com, Inc., 784 F.3d 918, 930, n.1 (3d Cir. 2015) (dismissal is only
appropriate under 12(b)(6) on the basis of an affirmative defense if it is apparent on the face of
the complaint and documents relied on in the complaint.). Therefore, the County’s motion to
dismiss is denied, without prejudice.

6

Finally, Defendants’ Motion to Dismiss asserting that Counts X, XI, XII and XIII, i.e.,
the state law claims, are barred by the Pennsylvania Political Subdivision Tort Claims Act
(“PSTCA”), 42 Pa. C.S.A. §§ 8541-8564, is DENIED. As Plaintiff points out, because Probation
Officers Ollis and Cima and Director McCaffrey are Commonwealth employees, the PSTCA
does not afford them immunity from suit. See e.g., Spiker v. Allegheny County Bd. of Probation
and Parole, 920 F. Supp. 2d 580, 610 (W.D. Pa. Jan. 30, 2013) (Conti, C.J.) (holding that
probation officer “is not entitled to immunity under the PTSCA because she is not an employee
of a local agency.”). Defendants have not set forth any alternative bases to raise immunity to
these claims. Accordingly, Defendants’ motion to dismiss Counts X, XI, XII, and XIII is also
denied, without prejudice.
For these reasons,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [86] is denied; and,
IT IS FURTHER ORDERED that Defendants shall file an Answer to Plaintiff’s Second
Amended Complaint by December 23, 2015.

s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
cc/ecf: All counsel of record.

7