DEFORTE v. BLOCKER et al

Filing 18

OPINION. Signed by Judge Mark R. Hornak on 5/8/17. (bdb)

IN THE UNITED ST ATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WILLIAM DeFORTE,

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Plaintiff,

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Civil Action No. 2:16-cv-113

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V.

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COLONEL TYREE C. BLOCKER,
Acting Commissioner of the Pennsylvania
State Police; CORPORAL JOSEPH R.
ZANDARSKI (individually and as an
Officer in the Pennsylvania State Police),
jointly and severally,

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Defendants.

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OPINION
Mark R. Hornak, United States District Judge

Presently pending in the above-captioned matter is the Plaintiffs motion for
reconsideration (ECF No. 16) of the Court's Opinion and Order entered on March 24, 2017 (ECF
Nos. 12 and 13) which, in relevant part, dismissed Plaintiffs Fourth Amendment malicious
prosecution claim against Defendant Joseph R. Zandarski. For the reasons that follow, Plaintiffs
motion will be denied.
I.

BACKGROUND

At Count I of the Complaint, Plaintiff asserted a § 1983 claim against Zandarski
predicated, in part, on a theory of malicious prosecution. To prove such a claim, a plaintiff must
show: "(l) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in
his favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant
acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff

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suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal
proceeding." Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007).
In moving to dismiss the Complaint, Zandarski challenged only the fifth element. This
Court agreed that the requisite deprivation of liberty had not been pled, and it dismissed the
claim. In doing so, the Court discussed the concept of "continuing seizures" as it has been
applied in two Third Circuit opinions: Gallo v. City of Phi/a., 161F.3d217 (3d Cir. 1998), and
Black v. Montgomery Cty., 835 F.3d 358, 364-65 (3d Cir. 2016), as amended (Sept. 16, 2016).
The Court concluded that Plaintiff had failed to allege restraints on his liberty that were
comparable to those which the plaintiffs in Gallo and Black had experienced:
[DeForte] claims that he was charged by Zandarski for theft of a firearm, theft of
the fire hall radios, and theft of the money from the prostitution sting operation.
The docket sheet from DeForte's criminal proceeding indicates that these were
second·-degree felony and first-degree misdemeanor charges, so it is fair to say
that the alleged criminal offenses-like the crimes at issue in Gallo and Blackwere serious. However, the docket further indicates that DeForte was released on
his own recognizance. DeForte does not aver that he was arrested or required to
post bond. Further, he does not allege that he was restricted in his travel or
required to report to the court on a regular basis prior to the case being nolle
prossed. In short, there are no allegations indicating that DeForte was subjected to
the type of "onerous" pretrial restrictions that might constitute a Fourth
Amendment "seizure." See DiBella v. Borough of Beachwood, 407 F.3d 599, 603
(3d Cir. 2005) (noting that "pretrial custody and some onerous types of pre:trial,
non-custodial restrictions constitute a Fourth Amendment seizure," and holding
that plaintiffs were not "seized" for purposes of a Fourth Amendment malicious
prosecution claim when they were only issued a summons, they appeared in court
only ai: their municipal court trial for criminal trespass, they were never arrested,
they never posted bail, they were free to travel, and they did not have to report to
pretrial services.).
(Op. at 18-19, ECF No. 12.) Based on this line of analysis, the Court dismissed the §1983
malicious prosecution claim. Because it perceived no grounds upon which the deficiency could
be cured through further amendment, the Court dismissed the claim with prejudice. Plaintiff
now seeks a reconsideration of the Court's ruling.

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II.

ST AND ARD OF REVIEW
A proper motion for reconsideration "must rely on one of three grounds: (1) an

intervening change in controlling law; (2) the availability of new evidence; or (3) the need to
correct clear enor of law or prevent manifest injustice." Lazaridis v. Wehmer, 591 F.3d 666, 669
(3d Cir. 2010) (citing N River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.
1995)); see also Fed. R. Civ. P. 59(e); Allah v. Ricci, 532 F. App'x 48, 51 (3d Cir. 2013)
(citations omitted); Max's Seafood Cafe v. Quinteros, 176 F .3d 669, 677 (3d Cir. 1999). This
Court has previously observed that a motion for reconsideration that "essentially restates, with
added vigor, the arguments made previously" does not satisfy this "substantial standard."

Peerless Ins. Co. v. Pa. Cyber Charter Sch., 19 F. Supp. 3d 635, 651 (W.D. Pa. 2014) (quoting
Trunzo v. Citi Mortg., 876 F. Supp. 2d 521, 544 (W.D. Pa. 2012)).
Because Plaintiff has claims still pending before the Court in this litigation, the ruling for
which he seeks reconsideration is an interlocutory one. Some courts within this judicial district
have applied a more discretionary standard of review where interlocutory rulings are concerned,
granting reconsideration "when it is consonant with justice to do so." See, e.g., Sampath v.

Concurrent Tech. Corp., No. CIV A 03-2641, 2006 WL 2642417, at *2 (W.D. Pa. Sept. 13,
2006) (Gibson, J.) ("For interlocutory orders, greater discretion is invested in the trial court with
jurisdiction over the matter; district courts possess 'inherent power over interlocutory orders, and
can reconsider them when it is consonant with justice to do so."')(quoting United States v. Jerry,
487 F.2d 600, 605 (3d Cir.1973)); Square D Co. v. Scott Elec. Co., Civil Action No. 06-459,
2008 WL 4877990, at *1 (W.D. Pa. Nov. 12, 2008) (Fischer, J.) (same). Nevertheless, "even in
the case of interlocutory orders, 'courts should grant motions for reconsideration sparingly'
because of the interest in finality." Square D Co., 2008 WL 4877990, at * 1 (quoting Jairett v.

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First Montauk Sec. Corp., 153 F. Supp. 2d 562, 580 (E.D. Pa. 2001)); see also Micjan v. WalMart Stores, Inc., No. CV 14-855, 2017 WL 879634, at *3 (W.D. Pa. Mar. 6, 2017) (Mitchell,

M.J.) ("[E]ven those courts that have applied the more lenient standard have held that [w]hile a
district court has the inherent power to reconsider an interlocutory order, [c]ourts tend to grant
motions for reconsideration sparingly and only upon the grounds traditionally available under
Fed. R. Civ. P. 59(e).") (quoting Morgan v. Hawthorne Homes, Inc., C.A. No. 04-1809, 2010
WL 1286949, at *2 (W.D. Pa. Mar. 31, 2010) (Cohill, J.)) (internal quotation marks omitted;
second and third alterations in the original).
III.

ANALYSIS

Although Plaintiff does not cite the relevant standard of review in his motion, it appears
from context that he is arguing only the third basis for reconsideration (i.e., a purported "need to
correct clear eiTor of law or prevent manifest injustice"), as no intervening change in the law or
new evidence is cited. Plaintiff posits in his motion that this Court "may have overlooked the
seizure (of employment) unique to that of police professionals within the Commonwealth of
Pennsylvania," which occurs "when a policeman merely gets charged with a felonious crime."
(Mot. for Reconsideration at 3, ECF No. 17.) The basis of Plaintiffs argument is Pennsylvania's
"Confidence in Law Enforcement Act," 53 Pa. Stat. Ann. §§752.l et seq. (West), pursuant to
which Plaintiff was immediately suspended from his employment as a police officer, pending
final disposition of the criminal charges. See id. §752.4. 1 Plaintiff contends that the "seizure" of

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statute provides, in relevant part, that:
[e]xcept in the case of a member of the Pennsylvania State Police, a law enforcement officer
charged with an offense that would prohibit employment under section 3[ 1 shall be immediately
suspended from employment as a law enforcement officer until final disposition of the charge or
upon ac:ceptance into a program of Accelerated Rehabilitative Disposition, whichever occurs first.

53 Pa. Stat. Ann. § 752.4 (West) (internal footnote omitted).

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his Municipal Police Officers' Education and Training Commission certification, "employment
credentials," and "property interest in his police training" was "immediate and absolute." (Id)
He also claims to have suffered a deprivation of "the liberty of his employment" in that he
"could no longer earn a living by way of his life's training and education as a police officer."
(Id. at 5.)

Similar arguments were raised by Plaintiff in his brief opposing Zandarski's motion to
dismiss. (See Pl.'s Br. Opp. Mot. Dismiss at 3-4 and 9-10, ECF No. 10.) Although the Court
did not expound on this line of argument in its prior Opinion, it did consider and address
Plaintiffs concerns about the alleged "seizure" of his employment. Specifically, the court noted:
In addition to being publicly humiliated, DeForte claims that the false criminal
charges destroyed his "life, law enforcement career, reputation, and future."
([Compl.] ~205.) The Complaint, however, does not provide factual content to
support these allegations. In addition, the adverse consequences that DeForte
experienced with respect to his reputation and employment prospects were not
state-imposed restrictions designed to secure his appearance in court. See Black,
835 F.3d at 367 (defining "seizure" in terms of "[p]retrial restrictions of liberty
aimed at securing a suspect's court attendance") (quoting [Schneyder v. Smith,
653 F.3d 313, 319 (3d Cir. 2011)]). Moreover, DeForte does not cite any
authority to suggest that courts within this circuit would view his circumstances as
indicative of a Fourth Amendment seizure." Because DeForte has not alleged
facts sufficient to satisfy the fifth element of his malicious prosecution claim, that
claim will be dismissed.
(Op. at 19.) To the extent that Plaintiff is simply restating his prior argument "with added
vigor," he has failed to demonstrate grounds for reconsideration of the March 24 ruling.
Peerless Ins. Co., 19 F. Supp. 3d at 651.

In an apparent attempt to demonstrate clear error, Plaintiff likens his situation to that of
the plaintiff in Black, supra. This Court previously acknowledged that:
[t]he court [in Black] found that a number of alleged facts supported the plaintiffs
claim that she had been "seized." Specifically, the plaintiff, having been charged
with arson, faced serious criminal charges. 835 F.3d at 367. Less than one month
after being interrogated by police and accused of committing arson, she flew from
her home in California to Pennsylvania for her arraignment because a warrant had

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been issued for her arrest. Id. At the police station, she spent more than an hour
being fingerprinted and photographed. Id. Thereafter, she was required to post
unsecured bail of $50,000 and was told this would be forfeited if she did not
attend all court proceedings. Id. at 367-68. Significantly, the plaintiff was
required to fly from California to Pennsylvania for twelve pre-trial conferences in
one year, presumably at her own expense. Id. at 368. Because she did not live in
the jurisdiction in which she was tried, Black faced serious charges and the
possibility of incarceration if she did not travel. Id. "[Her] life was presumably
disrupted by the compulsion that she travel out of state a dozen times." Id. Given
these circumstances, the court was satisfied that Black had alleged
"constitutionally significant restrictions on [her] freedom of movement for the
purpose of obtaining h[er] presence at a judicial proceeding," and she was
therefore "seized within the meaning of the Fourth Amendment." Id. (internal
quotation marks and citation omitted) (alterations in the original) ....
(Op. at 17-18.) Plaintiff contends that, like Ms. Black, he too suffered significant "disruption"
by virtue of the loss of his professional credentials and employment prospects. (See Mot. for
Recons. at 5-6 ("The 'disruption' caused by Zandarski's unconscionable actions literally
stripping DeForte of his ability to earn a living for over two years would most certainly create a

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seizure. . . .") .)
The comparison is inapt. In Black, the "disruptions" imposed on the plaintiff came in the
form of (among other things) numerous compulsory trips to Pennsylvania for the purpose of
appearing in court in connection with her criminal proceedings; thus, the Third Circuit conclused
that Black had suffered "constitutionally significant restrictions on {her} freedom of movement
for the purpose of obtaining h[er] presence at a judicial proceeding." 835 F.3d at 368 (emphasis

supplied).

By contrast - as previously noted, "the adverse consequences that DeForte

experienced with respect to his reputation and employment prospects were not state-imposed
restrictions designed to secure his appearance in court." (Op. at 19.) As was true when this
Court issued its March 24, 2017 ruling - and as remains true now, "DeForte does not cite any

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authority to suggest that courts within this circuit would view his circumstances as indicative of a
Fourth Amendment seizure." {Jd.)2
Elsewhere in his motion, Plaintiff points out that he was "compelled by law to turn
himself in to a district magistrate in order to be arraigned and placed on bail[JJ regarding the false
charges." (Mot. for Reconsideration at 5.) These circumstances - unlike the "disruptions" to
Plaintiffs employment and career plans, did involve state-imposed restrictions on Plaintiffs
freedom of movement for the purpose of obtaining his presence at court proceedings; however,
for the reasons previously discussed in the March 24, 2017 Opinion, the restrictions were not
constitutionally significant enough to amount to a Fourth Amendment "seizure." (See Op. at 1819.)
Finally, Plaintiff maintains that, "but for Zandarski' s false statements and fabricated
evidence that DeForte was not a policeman, the outcome in Massachusetts would have been far
different." (Mot. for Reconsideration at 6.) Plaintiff thus "holds Zandarski directly responsible
for creating the false impression that DeForte was not a policeman," (id.), and he suggests that
Zandarski is liable for influencing the Massachusetts authorities to initiate criminal proceedings
against him in that Commonwealth.
This line of argument, like the others, provides no basis for reconsideration of the Court's
prior ruling.

First, Plaintiff did not allege in his Complaint that Zandarski was personally

responsible for the criminal charges initiated against Plaintiff in Massachusetts. Second, the
To the extent that Plaintiff seeks to vindicate a Fourth Amendment "seizure" of his alleged property interests in his
professional credentials and/or his continued employment, the Court notes that: (a) such a claim, even if viable, has
not been pied, and (b) in any event, the alleged seizure of said property does not support Plaintiffs malicious
prosecution claim. Similarly, to the extent Plaintiff seeks to vindicate a Fourteenth Amendment violation based on
the alleged deprivation of a protected property and/or liberty interest without due process of law, such claims have
not been pied, nor would they in any way support the viability of plaintiffs Fourth Amendment malicious
prosecution theory.
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As previously noted, the docket sheet reflects that Plaintiff was released on his own recognizance. (See Def. 's Br.
Supp. Mot. to Dismiss, Ex. A, ECF No. 8-1 at p.3.)

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Massachusetts incident was pled as background fact, but it did not form any basis for the
malicious

prosc~cution

claims in Counts I and II of the Complaint. (See Compl. i!i!228-247.)

Third, and centrally as to this motion, for purposes of the § 1983 malicious prosecution claim at
Count I, Plaintiff did not allege a deprivation of his liberty in connection with the Massachusetts
prosecution as would support a federal cause of action.
In sum, Plaintiff has not demonstrated a clear error of law (or in the Court's estimation,
any error at aJJ) relative to this Court's March 24, 2017 ruling, nor has he shown that that
reconsideration of the ruling is necessary in order to prevent a manifest injustice. In essence,
Plaintiff restates an argument in support of his § 1983 malicious prosecution claim that was
previously raised, considered, and rejected. Accordingly, this case does not present the type of
situation where it is "consonant with justice" to revisit the prior order of dismissal.
IV.

CONCLUSION
Based upon the foregoing consideration, Plaintiffs motion for reconsideration (ECF No.

17) will be denied.
An appropriate Order will issue.

Mark R. Hornak
United States District Judge

Dated: May 8, 2017
cc:

All counsel of record

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