RICHTER v. PENNSYLVANIA STATE POLICE et al

Filing 90

MEMORANDUM AND ORDER denying 61 Defendant Jack R. Heneks's Motion for Summary Judgment. See contents of this filing. Signed by Judge Cathy Bissoon on 3/22/18. (rdl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SERENA RICHTER,

)
)
Plaintiff,
)
)
v.
)
)
PENNSYLVANIA STATE POLICE, et al., )
)
Defendants.
)

Civil Action No. 15-775
Judge Cathy Bissoon

MEMORANDUM AND ORDER
Pending before the Court is Defendant Jack R. Heneks’s (“Heneks’s”) Motion for
Summary Judgment (Doc. 61). For the reasons stated below, Defendant’s Motion will be denied.
BACKGROUND1
The Court will recite only those facts that are material to resolving Defendant Heneks’s
motion.2 This civil rights lawsuit stems from a fatal car crash that occurred on June 16, 2011,
and the ensuing investigation and criminal prosecution. (See Plaintiff’s Statement of Facts3 at ¶

Heneks has filed a “Concise Statement of Material Facts Not in Dispute,” (Doc. 63), and
Plaintiff has filed, in response, a “Concise Statement of Material Facts in Dispute,” (Doc. 76).
For ease of reference, the Court will refer to these, respectively, as “Heneks’s Statement of
Facts” and “Plaintiff’s Statement of Facts.” Neither party has filed a reply to their respective
opposing party’s statement of facts.
2
There is a pending Motion for Summary Judgment (Doc. 69) filed by the Pennsylvania State
Police Trooper (“PSP”) Defendants in this case. The Court will address that motion, and state
additional facts that are material to resolving that motion, in a forthcoming memorandum and
order.
3
Plaintiff’s Statement of Facts does not comply with Local Rule 56(C)(1)(a), which requires
Plaintiff to admit or deny each fact contained in the moving party’s statement of facts. In
addition, Plaintiff’s Statement of Facts does not comply with the undersigned’s Practices and
Procedures, which require the responding party to “include a reprint of each original fact
statement, followed by the response, seriatim.” Practices and Procedures of Judge Cathy
Bissoon, § II.D (available at www.pawd.uscourts.gov/sites/pawd/files/JudgeBissoon-Chamber1

1, Doc. 76; Heneks’s Statement of Facts at ¶¶ 1, 70, Doc. 63.) Heneks, at all times relevant to
this action, was the District Attorney of Fayette County, Pennsylvania. (Heneks’s Statement of
Facts at ¶ 80.)
Plaintiff Serena Richter states that she was a passenger in a vehicle driven by Samuel
McKnight (“McKnight”) “when the vehicle left the roadway, impacted a utility pole and/or a
wooden fence post, and rolled over several times.” (Amended Complaint at ¶ 10, Doc. 23).
McKnight was ejected from the vehicle and died. (Plaintiff’s Statement of Facts at ¶ 1; Heneks’s
Statement of Facts at ¶ 1.) Two years after the incident, on June 14, 2013, a criminal complaint
was filed against Plaintiff charging her with Homicide by Vehicle While Driving Under the
Influence, among other related charges. (See Exhibit G to Heneks’s Appendix to Statement of
Facts, hereinafter “Heneks’s Appendix,” at 2, Doc. 64-7.)
Three Pennsylvania State Police (“PSP”) Troopers investigated the incident, Robert. F.
Wilson (“Wilson”), John P. Weaver (“Weaver”), and Gino Fagnilli (“Fagnilli”). (Complaint at
¶¶ 11-13; Heneks’s Answer at ¶¶ 11-13). Plaintiff alleges that Heneks also played a role in the
investigation. (Plaintiff’s Statement of Facts at ¶¶ 2, 5, 7, 9.) For example, she provides
evidence that prior to the filing of criminal charges, Heneks spoke to Weaver about whether to
submit certain items containing blood for collection of DNA evidence.4 (Plaintiff’s Statement of

Rules-Revised-20170214.pdf). Plaintiff’s Statement of Facts thus fails to address many of
Heneks’s facts. Plaintiff’s statement also includes additional facts to which Heneks has not
responded. The Court will generally assume that facts to which the opposing party has not
responded are undisputed, unless there is clear evidence of a dispute from the parties’
submissions. See Fed. R. Civ. P. 56(e)(2), (4).
4
Weaver stated in his deposition that “what was submitted [for testing] was [sic] things that I
had discussed with the prosecutor and reasons why or why not to submit it, and the decision was
that the only thing we wanted to submit to the lab for DNA analysis was [sic] the air bags.”
(Exhibit D to Plaintiff’s Appendix to Statement of Facts at 78–79, Doc. 86-3.) Heneks maintains
that although he “made the decision as to when DNA testing should be performed, he did not
2

Facts at ¶ 5.) She also provides evidence that Heneks and Weaver jointly decided which blood
samples would be analyzed. (Id.)
In addition to Heneks’s role in DNA testing, Plaintiff alleges that Heneks made a
decision to arrest her despite his knowledge of exculpatory evidence. (Id. at ¶¶ 8-9.)
Specifically, Plaintiff offers evidence that there were three witnesses who saw that McKnight
was the driver of the car on the night of the accident at the time that she and McKnight left a
Sportsman’s Club, a fifteen-minute drive from the scene of the accident. (Id. at ¶ 2.) During the
course of the criminal investigation, Plaintiff obtained affidavits from these witnesses, and she
provides evidence that her counsel discussed these with Heneks and submitted them to Heneks.
(Exhibit AA to Plaintiff’s Appendix to Statement of Facts, hereinafter “Plaintiff’s Appendix,”
Doc. 86-29.) Heneks approved the decision to file criminal charges against Plaintiff, but the
parties dispute whether Heneks participated in a decision to arrest Plaintiff and whether Plaintiff
was, in fact, arrested after criminal charges were filed. (See Plaintiff’s Statement of Facts at ¶ 9
(Heneks approved charges), ¶ 10 (facts supporting arrest); Heneks’s Statement of Facts at ¶ 83
(Heneks approved charges), ¶¶ 72-79 (facts supporting lack of arrest).)
The criminal case proceeded to a jury trial in the Court of Common Pleas of Fayette
County before the Honorable Nancy D. Vernon. On January 8, 2015, Judge Vernon entered a
Judgment of Acquittal on all counts. (Plaintiff’s Statement of Facts at ¶ 1; Heneks’s Statement
of Facts at ¶ 87-88.)

make a determination as to what evidence should be submitted for testing.” (Heneks’s Statement
of Facts at ¶ 44.)
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Plaintiff initiated the instant action on June 12, 2015. (Doc. 1.) Following this Court’s
Memorandum Order on Defendants’ Motions to Dismiss (Doc. 36), the only claim remaining
against Heneks is a claim against him in his personal capacity for false arrest.
ANALYSIS5
The Fourth Amendment to the Constitution provides “[t]he right of the people to be
secure in their persons . . . against unreasonable searches and seizures.” U.S. Const. Amend IV.
For purposes of a false arrest claim, an “arrest” is analyzed as a seizure of a person. See
Aschroft v. al-Kidd, 563 U.S. 731, 735 (2011). Whether there was a seizure of a person turns on
whether “the officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.” Florida v. Bostick, 501 U.S. 429, 434 (1991) (citation
omitted). Put differently, the relevant question is whether “a reasonable person would feel free
to ‘disregard the police and go about his business.’” Id. (quoting California v. Hodari D., 499
U.S. 621, 628 (1991)); accord Schneyder v. Smith, 653 F.3d 313, 322 (3d Cir. 2011) (“a person
has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the
circumstances surrounding the incident, a reasonable person would have believed that he was not
free to leave” (internal citation omitted)). The two elements of a successful false arrest claim
under 42 U.S.C. § 1983 for a violation of rights secured by the Fourth Amendment are (1) an

Summary judgment is appropriate if the moving party establishes “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A dispute is “genuine” only if there is a sufficient evidentiary basis for a
reasonable jury to find for the non-moving party, and a fact is “material” only if it might affect
the outcome of the action under the governing law. See Sovereign Bank v. BJ's Wholesale Club,
Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). In ruling on the pending motion for summary judgment, the Court must view the
facts, and any reasonable inferences arising therefrom, in the light most favorable to the nonmoving party. See Moody v. Atlantic City Bd. of Educ., 2017 WL 3881957, at *1 n.1 (3d Cir.
Sept. 6, 2017) (citing Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 266-67 (3d Cir. 2005)).
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arrest (2) that was made without probable cause. James v. City of Wilkes-Barre, 700 F.3d 675,
680 (3d Cir. 2012) (citing Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)).
Heneks’s Motion for Summary Judgment rests on four arguments, which the Court will
address in turn. Specifically, Heneks argues that: (1) Plaintiff was not arrested; (2) even if she
was, Heneks did not participate in the arrest; (3) there was probable cause to support an arrest;
and (4) Heneks enjoys absolute prosecutorial immunity for the false arrest claim. (Heneks’s
Brief in Support of Motion for Summary Judgment, hereinafter “Heneks’s SJM Brief,” 6, Doc.
62.)
I.

Existence of Arrest
A. Legal Standard
There is tension among the decisions of the Court of Appeals for the Third Circuit as to

the necessary conditions for a constitutionally significant seizure absent a formal arrest and
booking. In DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005), the Court of
Appeals for the Third Circuit found that the issuance of a summons for defiant trespassing
coupled with a requirement to attend court appearances did not constitute a seizure “significant
enough to constitute a Fourth Amendment violation.” In other words, a requirement to appear in
court to face criminal charges was found insufficient to constitute a constitutionally relevant
seizure. In contrast, the Third Circuit found that requiring a person charged with arson to post a
$10,000 bond, attend court appearances, maintain regular contact with Pretrial Services, and
refrain from traveling outside New Jersey and Pennsylvania constituted a seizure under the
Fourth Amendment. Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998). The
court’s analysis in Gallo rested heavily on the fact that Gallo was required to attend court

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appearances at penalty of law.6 The Gallo court also concluded, in analyzing relevant Supreme
Court precedent, that a “government termination of freedom of movement intentionally applied,”
even if such termination “detains a citizen only momentarily” is a Fourth Amendment seizure.
Id. at 223 (internal citations omitted). It is difficult to reconcile these cases’ views of the
threshold for a constitutionally relevant seizure.
Subsequent to DiBella, the Court of Appeals for the Third Circuit has adhered more
closely to Gallo, distinguishing DiBella by noting that the pretrial restrictions in that case were
truly minimal and that the seriousness of the criminal charge is an important factor for
determining the existence of a seizure. See Black v. Montgomery County, 835 F.3d 358, 367-69
(3d Cir. 2016) (plaintiff’s person was seized where she was charged with arson, required to post
$50,000 unsecured bail, and required to attend court proceedings in Pennsylvania—far from her
home in California); Schneyder, 653 F.3d at 321-22 (“When the state places constitutionally
significant[] restrictions on a person’s freedom of movement for the purpose of obtaining his
presence at a judicial proceeding, that person has been seized within the meaning of the Fourth
Amendment.”). But see Black, 835 F.3d at 367 n.7 (“We reiterate here that ‘[w]e hold open the

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Specifically, the court reasoned:
When he was obliged to go to court and answer the charges against him, Gallo, like the
plaintiff in Terry[ v. Ohio, 392 U.S. 1 (1968)], was brought to a stop. . . . Gallo’s
physical motion was subjected to authority that had the effect of making him halt. In the
present state of our law, it is difficult to distinguish this kind of halt from the exercise of
authority deemed to be a seizure in Terry.
...
In ruling that release on personal recognizance qualifies as “custody,” the Court [in
Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 301 (1984)] recognized that
bail restrictions on travel as well as mandatory attendance at court hearings does restrain
liberty, particularly because failure to obey, or failure to appear, constitutes a criminal
offense under state law.
Gallo, 161 F.3d at 223.
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possibility that some conditions of pre-trial release may be so insignificant as to not implicate
constitutionally protected liberty interests.’ Schneyder, 653 F.3d at 321 n.12.”).
Heneks argues that two relevant decisions from the Western District of Pennsylvania
apply a more stringent test for a constitutionally relevant seizure, similar to the test applied in
DiBella. (Heneks’s SJM Brief at 10-11.) In Benard v. Washington County, 465 F. Supp. 2d
461, 466, 469 (W.D. Pa. 2006), the court found that a plaintiff who was charged with theft,
arrested and released on her own recognizance, and required to attend court proceedings before
the charges against her were withdrawn, had not suffered a sufficient deprivation of liberty to
constitute a Fourth Amendment seizure. Likewise, in DeForte v. Blocker, 2017 WL 1102655, at
*10 (W.D. Pa. Mar. 24, 2017), the court found an insufficient deprivation of liberty where the
plaintiff was charged with theft (including serious felony thefts) and was released on his own
recognizance without bond before the charges were withdrawn. Heneks construes these cases as
emphasizing physical constraints on liberty over other factors, and as essentially holding that the
absence of physical constraints on a plaintiff’s movement equates with the absence of a seizure.
(See Heneks’s SJM Brief at 11-13.)
This Court agrees that physical constraints are relevant, but disagrees that they are
dispositive. Instead, to determine whether Plaintiff has made a sufficient showing at this stage to
establish a constitutionally significant seizure, the Court will credit all of the factors considered
by the Court of Appeals for the Third Circuit, including: the seriousness of the charged offense,
plaintiff’s objectively justified belief concerning her freedom to leave upon a government show
of authority, and the onerousness of any requirements imposed on plaintiff—such as a
requirement to appear in court.

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B. Evidence Supporting Arrest
The undisputed evidence in this case is sufficient to establish a constitutionally
significant seizure. First, Plaintiff was charged with the serious offense of Homicide by Vehicle
While Driving Under the Influence, which carries a mandatory minimum sentence of three years’
imprisonment. 75 Pa. Cons. Stat § 3735(a). The Police Criminal Complaint that Weaver filed
on June 14, 2013, which he supported with an Affidavit of Probable Cause, requested “that a
warrant of arrest or a summons be issued and that the defendant be required to answer the
charges.” (Exhibit EE to Plaintiff’s Appendix at 6, Doc. 86-33.) The parties agree that Plaintiff
“became aware of a warrant for her arrest,” voluntarily surrendered to the local magisterial
district judge, and was released on a $25,000 unsecured bond. (Heneks’s Statement of Facts at
¶¶ 72-73, 77.) Thus, Plaintiff physically surrendered to a government show of authority, that is,
the Criminal Complaint calling for her arrest. Cf. Albright v. Oliver, 510 U.S. 266, 268, 271
(1994) (where plaintiff turned himself into authorities upon learning of his arrest warrant, “his
surrender to the State’s show of authority constituted a seizure for purposes of the Fourth
Amendment”). After her release, Plaintiff was required to appear in court for criminal
proceedings, including a jury trial, “six times between January 16, 2014 and January 5, 2015.”
(Plaintiff’s Brief in Opposition to Heneks’s Motion for Summary Judgment, hereinafter
“Opposition to Heneks’s SJM,” at 2, Doc. 74.) These required appearances increased the degree
to which her liberty was genuinely curtailed by government action.7

For purposes of Heneks’s Summary Judgment Motion, the Court will not address Plaintiff’s
arrest on the night of the accident, as that arrest is not the subject of Plaintiff’s false arrest claim
against Heneks. The Court will also refrain from addressing facts that are disputed as to
additional burdens imposed on Plaintiff because the undisputed facts are sufficient to show an
arrest.
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The Court finds that these facts are enough. The undisputed facts establish a deprivation
of liberty sufficient to trigger the protection of the Fourth Amendment against unreasonable
seizures and to satisfy the “arrest” requirement of a false arrest claim.
II.

Heneks’s Involvement in the Arrest
Liability for a false arrest claim requires the personal involvement of a defendant. See

Reynolds v. Smythe, 418 F. Supp. 2d 724, 730 (E.D. Pa. 2006) (citing Andrews v. City of
Philadelphia, 895 F,2d 1469, 1478 (3d Cir. 1990). Heneks argues that “there has been no
evidence developed [to show that] District Attorney Heneks actually participated in an arrest of
the plaintiff.” (Heneks’s SJM Brief at 15.) Further, Heneks argues that no evidence shows that
he directed Plaintiff’s arrest. (Id.)
To the contrary, Plaintiff submits deposition testimony as evidence that Heneks
participated in the decision to arrest her and approved this decision. (Plaintiff’s Statement of
Facts at ¶ 9.) Specifically, Heneks stated in his deposition: “They would bring the investigation
to me. They’d say, you know, yea or nay on filing the charges . . . .” (Exhibit Q to Plaintiff’s
Appendix at 13, Doc. 86-19.) And Weaver stated in his deposition: “I know that [Heneks] called
me and said, I need you to get these charges filed, so I did.” (Exhibit D to Plaintiff’s Appendix
at 23, Doc. 86-3.) Because the charging document contained the application for the arrest
warrant, this evidence would be sufficient for a jury to conclude that Heneks affirmatively
directed Plaintiff’s arrest.8 As Heneks’s direct involvement in the arrest is disputed and is highly

8

Puzzlingly for his claim of non-involvement in the arrest, Heneks also offers the following:
“District Attorney Heneks approved the bringing of criminal charges against Serena Richter
because he believed that not only was there probable cause to pursue the charges, but that he
thought a guilty verdict could be obtained.” (Heneks’s Statement of Facts at ¶ 83.)
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material to liability, the Court finds that this cannot be a basis for summary judgment in
Heneks’s favor.
III.

Probable Cause for the Arrest
At the outset, the Court notes that the parties do not contest that probable cause existed to

arrest the driver of the vehicle involved in the accident. Rather, the entire question of probable
cause boils down to a question about the driver’s identity: was there sufficient evidence to show
that Plaintiff was the driver, when balanced against the strength of the evidence that would tend
to show that McKnight was the driver?
There is ample evidence in the record to support each side of this equation. (Compare
Plaintiff’s Statement of Facts at ¶¶ 7-8, 11 (three witness affidavits identify McKnight as the
driver and there are reasons to question Weaver’s report on crash dynamics), with Heneks’s
Statement of Facts at ¶¶ 53-69 (Weaver’s findings support a conclusion that Plaintiff was the
driver).) If a reasonable jury could, upon consideration of this evidence, conclude that probable
cause was lacking, it would be improper to grant summary judgment for a defendant on the issue
of probable cause. Halsey v. Pfeiffer, 750 F.3d 273, 300 (3d Cir. 2014); Groman v. Township of
Manalapan, 47 F.3d 628, 635 (3d Cir. 1995).
Heneks asks the Court to conclude that the strength of the evidence provided by
Weaver’s crash analysis report is sufficient as a matter of law to establish probable cause. (See
Heneks’s SJM Brief at 16-17.) However, the Court must also consider unfavorable facts that the
arresting officer would have known at the time of the arrest. Andrews v. Scuilli, 853 F.3d 690,
698 (3d Cir. 2017) (citing Dempsey v. Bucknell Univ., 834 F.3d 457, 468 (3d Cir. 2016)). As
noted above, Plaintiff has offered proof that Heneks and Weaver knew of exculpatory evidence
at the time of the arrest. Therefore, the Court finds that the task of balancing the weight of

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Weaver’s report against the strength of Plaintiff’s exculpatory witness affidavits in order to
assess the existence of probable cause is a task for a jury. The Court declines to grant summary
judgment on this basis.
IV.

Absolute Prosecutorial Immunity
As this Court stated in its Memorandum Order (Doc. 36) on Defendants’ Motions to

Dismiss, to establish entitlement to absolute immunity, a “prosecutor must show that he or she
was functioning as the state’s advocate when performing the action(s) in question.” Odd v.
Malone, 538 F.3d 202, 208 (3d Cir. 2008). “This inquiry focuses on the nature of the function
performed,” since “immunity attaches to actions intimately associated with the judicial phases of
litigation, but not to administrative or investigatory actions unrelated to initiating and conducting
judicial proceedings.” Id. (internal quotations and citations omitted).
A prosecutor’s activities are protected when they “are connected with the prosecutor’s
role in judicial proceedings, not for every litigation-inducing conduct.” Burns v. Reed, 500 U.S.
478, 494 (1991). Said another way, “when a prosecutor performs the investigative functions
normally performed by a detective or police officer, the prosecutor is entitled only to the same
qualified immunity already enjoyed by such law enforcement officials.” Buckley v.
Fitzsimmons, 509 U.S. 259, 276 (1993). That this investigation ended with the filing of criminal
charges against Defendant does not necessarily mean that all of Heneks’s activities preceding
those charges are entitled to absolute immunity. “[W]here the role as advocate has not yet begun
. . . or where it has concluded, absolute immunity does not apply.” Yarris v. County of
Delaware, 465 F.3d 129, 137 (3d Cir. 2006) (quoting Spurlock v. Thompson, 330 F.3d 791, 799
(6th Cir.2003)) (internal quotation marks omitted).

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While the decision to prosecute is entitled to absolute immunity, Kulwicki v. Dawson,
969 F.2d 1454, 1463-64 (3d Cir. 1992) (citing Imbler v. Pachtman, 424 U.S. 409, 430-31
(1976)), a prosecutor is not entitled to absolute immunity for directing an officer to obtain an
arrest warrant prior to the filing of charges. Spiker v. Allegheny Cnty. Bd. of Probation &
Parole, 920 F. Supp. 2d 580, 600 (W.D. Pa. 2013) (citing Walker v. Clearfield Cnty. Dist. Att’y,
413 Fed. App’x 481, 483 (3d Cir. 2011)). Once charges have been filed, however, a prosecutor
is absolutely immune for subsequent actions to obtain an arrest warrant. Spiker, 920 F. Supp. 2d
at 600-601.
With these principles in mind, and a more developed factual record at hand, the Court
will again turn to the specific actions that Heneks is alleged to have taken in order to determine
whether he is entitled to absolute immunity for his conduct culminating in Plaintiff’s arrest.9
Plaintiff points to two categories of actions that fall outside the role of state advocate:
Heneks’s activities during the criminal investigation, and Heneks’s approval of Plaintiff’s arrest.
As to the first category, Plaintiff provides evidence that Heneks spoke to Weaver about whether
to submit items containing blood for collection of DNA evidence. (Plaintiff’s Statement of Facts
at ¶ 5.) She also provides evidence that Heneks and Weaver jointly decided which blood
samples would be analyzed, including a decision to refrain from analyzing several specimens.
(Id.) Finally, she provides evidence that Heneks received her witness affidavits, was aware of
their potentially exculpatory contents, and forwarded them to one or more investigating officers.
(Id. at ¶ 2.) As to the second category, Plaintiff provides evidence that Heneks directed her arrest
before charges were filed. (Id. at ¶¶ 8-9.) In fact, the parties agree that Heneks approved the

Heneks does not argue for summary judgment based on qualified immunity, but rather rests his
argument solely on absolute immunity. Therefore, the Court will not reach the question of
whether Heneks would be entitled to summary judgment on the basis of qualified immunity.
9

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decision to file the Police Criminal Complaint against Plaintiff. (See Heneks’s SJM Brief at 22.)
This document, in addition to initiating the criminal proceedings against Plaintiff, contained an
application for her arrest warrant. (Exhibit EE to Plaintiff’s Appendix at 6, Doc. 86-33.)
Heneks disputes his involvement in the investigation (Heneks’s SJM Brief at 22),
contends that absolute prosecutorial immunity is wide-ranging for sound policy reasons, and
takes the thrust of Plaintiff’s argument to be that the prosecution “lacked any merit and was
contrary to all evidence developed during the investigation,” (id. at 23). However, the Court has
already dismissed Plaintiff’s malicious prosecution claim against Heneks. The Court addresses
its current analysis solely to Heneks’s conduct prior to the “prosecution” phase of activities
surrounding the June 16, 2011 car accident. Because Plaintiff provides evidence that Heneks
participated in the investigation and made a pre-charge decision to arrest—functions that closely
parallel those of an investigating officer rather than a prosecutor—the same qualified immunity
available to investigating officers shields Heneks here. The Court finds that Heneks is not
entitled to absolute immunity for this conduct.

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* * *
Accordingly, for the reasons stated above, Heneks’s Motion for Summary Judgment
(Doc. 61) is DENIED.
IT IS SO ORDERED.

March 22, 2018

s/Cathy Bissoon
Cathy Bissoon
United States District Judge

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