PAZICNI v. MILLER et al

Filing 43

MEMORANDUM OPINION indicating that, for reasons more fully stated within, Defendants' motions to dismiss (Docket Nos. 30 , 32 ) will be granted. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 6/5/17. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BETHANY ANN PAZICNI,
Plaintiff,
v.
RUSSELL P. MILLER, JR., ALLEN
CLARKE, and SOUTH
CONNELLSVILLE BOROUGH,
Defendants.

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)
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) Civil Action No. 17-117
) Judge Nora Barry Fischer
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MEMORANDUM OPINION
I.

Introduction
Plaintiff Bethany Ann Pazicni brings this action under 42 U.S.C. § 1983, alleging various

violations of her constitutional rights as well as a state-law claim for intentional infliction of
emotional distress (“IIED”) against Defendants Russell P. Miller, the Chief of Police of South
Connellsville Borough; Allen Clarke; and South Connellsville Borough. (Docket No. 29).
Defendants move to dismiss Plaintiff’s complaint for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Docket Nos. 30, 32). The motions have been fully briefed and
are ripe for disposition. (Docket Nos. 31, 33-39, 42). For the reasons that follow, the motions
will be granted.
II.

Background
Plaintiff is a member of the Grubbs family, which is well known in South Connellsville

for its support for the Borough’s volunteer Fire Department. (Docket No. 29 ¶ 10). According to
Plaintiff, Miller “has a demonstrable vendetta against the South Connellsville Fire Department

and its supporters[,]” which he has allegedly carried out by “target[ing] Fire Department
supporters” with “baseless criminal charges.” (Id.).
Clarke is Plaintiff’s ex-boyfriend and the father of her child. (Id. ¶ 12). After their
relationship soured, Plaintiff obtained a PFA order against Clarke. (Id. ¶ 14). Clarke has what
Plaintiff describes as “an unusually friendly and inappropriate relationship with the Police
Department of South Connellsville Borough, namely Miller and Officers Alex Byers and Frank
Neal.” (Id. ¶ 16). “[D]uring early to mid-September 2016, Clarke and Miller began to meet and
conspire to exploit and violate [Plaintiff’s] civil liberties[.]” (Id.). To that end, on September 9,
2016, Miller, “at Clarke’s urging,” issued Plaintiff two non-traffic citations – one for disorderly
conduct and one for harassment. (Id. ¶¶ 21-21). The first citation, which charged Plaintiff with
disorderly conduct, alleged that Plaintiff was driving past Clarke’s residence “causing alarm and
inconvenience” and “making threats to alarm residents.” (Id. ¶ 20). The second citation, which
charged Plaintiff with harassment, alleged that she was sending harassing text messages to Clark
and “[d]riving around [his] residence and following him.” (Id. ¶ 21). According to Plaintiff, these
events “never took place.” (Id. ¶ 19). A summary trial was scheduled for January 9, 2017, but
Miller failed to appear and the magistrate dismissed the citations. (Id. ¶ 25).
Meanwhile, Clarke continued to harass Plaintiff by driving past her house at all hours of
the day and engaging in other conduct that Plaintiff believed violated the PFA order. (Id. ¶ 38).
Plaintiff and her mother repeatedly reported the alleged harassment to the South Connellsville
Police Department, but to no avail. (Id. ¶ 26). Instead, according to Plaintiff, “Miller and his
police department took overt affirmative actions to suppress and obstruct [Plaintiff’s] ability to
report violations to the police.” (Id.). For example, the last time Plaintiff and her mother reported
the alleged PFA violations to Miller, Miller told “her that he ‘did not care to hear about any

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further alleged violations of the Order’ and that if she ‘did report any further violations she
would be charged with disorderly conduct.’” (Id. ¶ 27). Miller also told Plaintiff that any
additional alleged violations of the PFA order should be reported “by reaching out to the officer
on duty via their individual Facebook page.” (Id.).
On October 11, 2016, Miller was charged with official oppression by the Fayette County
District Attorney’s Office “for using his position as Chief of Police to intimidate and stifle the
protected free speech [of] resident Mary Lubich-Riley, who is affiliated with the South
Connellsville Volunteer Fire Department[.]” (Id. ¶ 31). He has since been placed on restricted
duty. (Id. ¶ 32). Plaintiff alleges that “Miller’s suppression of the constitutional rights of
Borough citizens through actions of malicious prosecution was ongoing during his term as Chief
of Police.” (Id. ¶ 33). As an example, Plaintiff alleges that Miller had criminal charges filed
against Amanda Burnsworth in September 2015, which were dismissed at a preliminary hearing.
(Id. ¶ 34). And in the spring of 2016, Miller arrested Kenneth Harshman and threated to charge
him with serious crimes if he “did not agree to provide a statement that would implicate other
supporters of the Borough Fire Department.” (Id. ¶ 35).
Plaintiff filed this suit on January 24, 2017. (Docket No. 1). After Defendants filed a
motion to dismiss, Plaintiff filed an amended complaint. (Docket No. 29), which includes claims
for malicious prosecution against Miller and Clarke (count I), failure to train against the Borough
(count II), state-created danger against Miller (count III), a violation of equal protection against
Miller (count IV), municipal liability against the Borough (count V), civil conspiracy against
Miller and Clarke (count IV), fabrication of evidence against Miller and Clarke (count VII), and
IIED against Miller and Clarke (count VIII). Defendants now move to dismiss the amended
complaint in its entirety. (Docket Nos. 30, 32). They filed briefs in support of their respective

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motions on April 24, 2017. (Docket Nos. 31, 33). Plaintiff submitted responses and briefs in
opposition on May 8, 2017. (Docket Nos. 34-37). Defendants filed reply briefs on May 22,
2017. (Docket Nos. 38, 39). And, after receiving leave of Court, on May 30, 2017, Plaintiff filed
a sur-reply. (Docket No. 42).
III.

Standard of Review
Under Fed. R. Civ. P. 12(b)(6), a complaint must be dismissed if it fails to state a claim

upon which relief can be granted. To survive a Rule 12(b)(6) motion, a complaint must include
“enough factual matter” to “‘nudge [the plaintiff’s] claims across the line from conceivable to
plausible.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234–35 (3d Cir. 2008) (quoting Bell
Atlantic Co. v. Twombly, 550 U.S. 544, 556, 570 (2007)).
In assessing the merits of a claim subject to a motion to dismiss, the court must engage in
a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). First,
factual and legal elements of a claim must be distinguished. Id. Second, it must be determined
whether the facts as alleged support a “plausible claim for relief.” Id. In making the latter
determination, the court must be mindful that the matter pleaded need not include “detailed
factual allegations,” Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555), and the court
must construe all alleged facts, and draw all inferences gleaned therefrom, in the light most
favorable to the non-moving party. Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d
651, 653 (3d Cir. 2003)). Moreover, a pleading party need only “put forth allegations that ‘raise a
reasonable expectation that discovery will reveal evidence of the necessary element[s].’” Fowler,
578 F.3d at 213 (quoting Graff v. Subbiah Cardiology Assoc., Ltd., 2008 WL 2312671 (W.D. Pa.
June 4, 2008)). A well-pleaded complaint, even when “it strikes a savvy judge that actual proof
of…facts is improbable,” will not be dismissed as long as the pleader demonstrates that his or

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her claim is plausible. Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 555 –56).
Nevertheless, the facts pled do need to raise the expectation of relief above a purely
speculative level, and must include more than “labels and conclusions, and a formulaic recitation
of the elements of a cause of action.” Phillips, 515 F.3d at 231–32 (quoting Twombly, 550 U.S.
at 554–56). Rule 8(a)(2) “requires a ‘showing’ rather than a blanket assertion of an entitlement to
relief.” Id. at 232. “[T]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Fowler, 578 F.3d at 211 (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
IV.

Discussion
A.

Malicious Prosecution

In count I, Plaintiff asserts a malicious prosecution claim under § 1983 against
Defendants Miller and Clarke. (Docket No. 29). In moving to dismiss this claim, Miller argues
that Plaintiff failed to plead that she suffered a deprivation of liberty, which Miller says is
required to establish a § 1983 malicious prosecution claim. (Docket No. 31). Clarke raises the
same argument (in addition to a few others).1 (Docket No. 33).
As a threshold matter in any § 1983 suit, the Court must “identify the specific
constitutional right at issue.” Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 920 (2017) (internal
citation and quotation marks omitted). “[P]rosecution without probable cause is not, in and of
itself, a constitutional tort” actionable under § 1983. Gallo v. City of Philadelphia, 161 F.3d 217,
222 (3d Cir. 1998) (citing Albright v. Oliver, 510 U.S. 266, 274 (1994)). There must instead be
some “constitutional peg on which to hang such” a claim. Albright, 510 U.S. at 270 n.4.

1

Clarke also argues that he cannot be held liable because he did not initiate the proceedings against Plaintiff
and was not a state actor. (Docket No. 33). These arguments need not be addressed because the Court is dismissing
count I on different grounds. Clarkes raises the same arguments as to Plaintiff’s fabrication claim in count VII, but
that claim will also be dismissed on other grounds, as well.

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Typically, that “peg” is the Fourth Amendment, in which case the plaintiff must establish that
she suffered a deprivation of her “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).
Plaintiff has not done that (and as will be explained below, she has not attempted to do
so).2 She was issued two citations for summary offenses and never arrested or taken into custody.
Moreover, she has not alleged that any “onerous types of pretrial, non-custodial restrictions”
were placed on her. DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005). In fact,
there is no suggestion that type of restrictions were placed on her. Granted, she had to attend a
summary trial, but “merely attending trial does not amount to a seizure for Fourth Amendment
purposes.” Black v. Montgomery Cnty., 835 F.3d 358, 367 (3d Cir. 2016). So, to the extent it is
based on the Fourth Amendment, Plaintiff’s malicious prosecution claim cannot stand.
Plaintiff argues, however, that her claim “may be analyzed under the due process clause”
of the Fourteenth Amendment instead of the Fourth Amendment. (Docket No. 35 at 7) (citing
Torres v. McLaughlin, 163 F.3d 169, 173 (3d Cir. 1998)). To be sure, the Court of Appeals has
recognized “that a section 1983 malicious prosecution claim could be based on a constitutional
provision other than the Fourth Amendment, including the procedural component of the Due
Process Clause, so long as it was not based on substantive due process.” Merkle v. Upper Dublin
Sch. Dist., 211 F.3d 782, 792 (3d Cir. 2000) (citing Torres, 163 F.3d at 173). In such case, the
deprivation of liberty requirement does not apply. See Johnson, 477 F.3d at 82 n.8. Instead the

2

Plaintiff’s argument on this point is actually a bit muddled. She argues, on the one hand, that Torres allows
her to raise a malicious prosecution claim based on the procedural due process clause. (Docket No. 42 at 1). As
explained in the text, she is correct on this point. But, then she goes on to say that her malicious prosecution claim is
“based on the fact that Miller violated her procedural due process rights by fabricating evidence against her to
initiate a criminal proceeding, which, taken together, constitutes a deprivation of liberty.” (Id.). This is where things
get muddled. The fabrication of evidence, in and of itself, does not amount to a “deprivation of liberty.” Rather, as
explained in greater detail below, to prove a procedural due process claim, Plaintiff would have to show (1) that
evidence was fabricated (this is the “due process” component) and (2) that she suffered a deprivation of liberty as a
result of the fabricated evidence. As the Court will explain infra, she has failed.

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analysis turns on the particular constitutional right alleged to have been violated. See Olasz v.
Welsh, 301 F. App’x 142, 144 (3d Cir. 2008) (the “analysis of a malicious prosecution claim …
must begin with a determination of whether a constitutional violation exists”).
Be that as it may, the Third Circuit Court of Appeals has recognized a standalone claim
for fabrication of evidence under the procedural due process clause—as Plaintiff herself
recognizes by alleging such a claim in count VII. See Black, 835 F.3d at 369 (citing Halsey v.
Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014)). In doing so, the Court of Appeals actually rejected
the notion that fabrication claims and malicious prosecution claims are necessarily “intertwined
and that the former can exist only as a portion of the latter.” Halsey, 750 F.3d at 290.
Thus, in the Court’s view, it does not make sense to allow Plaintiff to pursue a procedural
due process-based malicious prosecution alongside a standalone fabrication of evidence claim.
These claims would be duplicative—both seek to redress the very same alleged violation of
procedural due process—only Plaintiff would have a heavier burden with the malicious
prosecution claim because she would have to prove that there was not probable cause to cite her
and that Defendants’ conduct was malicious, in addition to the requirements for a fabrication
claim. See Johnson, 477 F.3d at 82 (explaining that the elements of a § 1983 malicious
prosecution claim include the elements of the common law tort plus the deprivation of a
constitutional right). As a result, the Court will dismiss count I and address Plaintiff’s fabrication
claim on its own, not as a portion or element of a malicious prosecution claim.
B.

State-Created Danger

In count III, Plaintiff alleges a state-created danger claim under the due process clause of
the Fourteenth Amendment. (Docket No. 29). Miller argues that Plaintiff failed to plead that she
suffered any harm or that Miller affirmatively misused his authority in any way, which is

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required to establish a due process violation under the state-created danger theory. Rather, Miller
says, “[t]he crux of Plaintiff’s allegations is that Chief Miller obstructed and refused to accept or
investigate her complaints that Clarke had violated the PFA against him, i.e., he failed to act on
Plaintiff’s alleged allegations.” (Docket No. 31 at 13).
The due process clause of the Fourteenth Amendment provides that no State shall
“deprive any person of life, liberty, or property, without due process of law ….” U.S. CONST.
amend. X IV, § 1. “[N]othing in the language of the Due Process Clause itself requires the State
to protect the life, liberty, and property of its citizens against invasion by private actors.”
DeShaney v. Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189, 195 (1989) (emphasis added).
The Third Circuit and other courts of appeals, however, “have adopted a ‘state-created danger’
exception to the general rule that the Due Process Clause imposes no duty on states to protect
their citizens from private harm.” L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235, 242 (3d Cir.
2016). The state-created danger theory “recognizes that a constitutional violation may result
‘when state authority is affirmatively employed in a manner that injures a citizen or renders him
more vulnerable to injury from another source than he or she would have been in the absence of
state intervention.’” Burella v. City of Philadelphia, 501 F.3d 134, 146-47 (3d Cir. 2007)
(quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006)).
To state a due process claim under the state-created danger theory, a plaintiff must plead
facts in support of the following elements:
(1) “the harm ultimately caused was foreseeable and fairly direct,” (2) “a state
actor acted with a degree of culpability that shocks the conscience,” (3) “a
relationship between the state and the plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant’s acts, or a member of a discrete class of
persons subjected to the potential harm brought about by the state’s actions as
opposed to a member of the public in general;” and (4) “a state actor affirmatively
used his or her authority in a way that created a danger to the citizen or that
rendered the citizen more vulnerable to danger than had the state not acted at all.”
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Id. at 154 (quoting Bright, 443 F.3d at 281).
The fourth element—the “affirmative act” element—is often the most hotly contested, as
it is here. As the Court of Appeals has stressed, “[i]t is misuse of state authority, rather than a
failure to use it, that can violate the Due Process Clause.” Bright, 443 F.3d at 282. This
requirement “serves an important purpose: to distinguish cases where government officials might
have done more to protect a citizen from a risk of harm in contrast to cases where government
officials created or increased the risk itself.” Morrow v. Balaski, 719 F.3d 160, 186 (3d Cir.
2013) (Ambro, J., concurring). While the rule is easily stated, courts have struggled to “draw[] a
line between an affirmative act and a failure to act.” L.R. v. Sch. Dist. of Philadelphia, 836 F.3d
235, 242 (3d Cir. 2016). The Court of Appeals has thus recently attempted to clarify the inquiry.
Id. Rather than trying to distinguish between act and omission, the Court of Appeals has
explained, it is “useful to first evaluate the setting or the ‘status quo’ of the environment before
the alleged act or omission occurred, and then to ask whether the state actor’s exercise of
authority resulted in a departure from that status quo.” Id. This “helps to clarify whether the state
actor’s conduct ‘created a danger’ or ‘rendered the citizen more vulnerable to danger than had
the state not acted at all.’” Id. (quoting Bright, 443 F.3d at 281).
Plaintiff contends that she has satisfied this element by pleading the following affirmative
acts: “(1) Miller conspired with Clarke to initiate false criminal proceedings against her to
intimidate her from reporting PFA violations;” “(2) Miller intentionally placed outrageous
barriers by directing her to file reports on social media;” “(3) Miller threatened her with criminal
charges if she reported PFA violations;” and “(4) Miller inexcusably chose not to account for
[Plaintiff’s] multiple reports of PFA violations by Clarke during [his] report to Borough
Council.” (Docket No. 35 at 11).
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These allegations, however, are not sufficient to satisfy the “affirmative act” element. On
this point, the Third Circuit’s decision in Burella, 501 F.3d at 146-48, is particularly instructive.
In that case, the plaintiff obtained three PFA orders against her husband but continued to receive
threatening phone calls from him. Id. at 138. When she reported the calls to the police, she was
told that nothing could be done. Id. Then, her husband went to her home and shot her. Id. In
arguing that she satisfied the “affirmative act” requirement, the plaintiff alleged that the police
“officers’ ‘continued refusal to enforce the [PFA] order and follow state law requiring [her
husband’s] arrest, together with their false direction that “there was nothing they could do,” as
well as overall inadequate intervention were affirmative acts which together increased the
likelihood of harm.’” Id. at 147. The Third Circuit, however, rejected the plaintiff’s “attempt to
characterize the officers’ alleged wrongdoing as an affirmative misuse of authority.” Id. “Rather,
it is apparent that what she actually contends is that the officers failed to act at all.” Id.
So, too, here. Despite Plaintiff’s artful pleading, the gravamen of her claim is still that
Miller and his police officers failed to enforce the PFA order against Clarke, not that Miller took
any action that created or increased the risk to her. Indeed, Plaintiff admits as much in her brief:
“[h]ad Miller enforced the PFA against Clarke,” Plaintiff argues, “[she] would not have been
subjected to continued abuse or harassment.” (Docket No. 35 at 11). This amounts to a failure to
act, not the type of affirmative misuse of state authority that can form the basis of a state-created
danger claim. In the words of the Third Circuit in L.R., the alleged conduct did not result in a
change in the status quo. L.R., 836 F.3d at 244. The risk of harm posed by Clarke remained the
same, irrespective of what Miller allegedly did or did not do. Absent conduct on the part of
Miller creating or increasing that risk, Plaintiff cannot make out a state-created danger claim.
Thus, this count will be dismissed.

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C.

Equal Protection

In count IV, Plaintiff asserts an equal protection claim. (Docket No. 29). Miller argues
that Plaintiff has failed to state such a claim because she has not alleged that she was
discriminated against because of her membership in a protected class “and/or that she received
different treatment than similarly situated individuals.” (Docket No. 31 at 14). In her response,
Plaintiff clarifies that she is attempting to pursue a class-of-one claim, which she says obviates
the need to prove her membership in a protected class. (Docket No. 35).
The Equal Protection Clause of the Fourteenth Amendment prohibits a state from
denying “any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend.
XIV § 1. To state an equal protection claim under a class-of-one theory, as Plaintiff is attempting
to do, she must establish that she was “intentionally treated differently from others similarly
situated and that there [was] no rational basis for the difference in treatment.” Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). “To be ‘similarly situated,’ parties must be
‘alike in all relevant aspects.’” Perano v. Twp. of Tilden, 423 F. App’x 234, 238 (3d Cir. 2011)
(quoting Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008)).
Plaintiff alleges, in a conclusory manner, that she “is similarly situated to other citizens of
South Connellsville in all other relevant aspects” and that “[o]ther similarly situated individuals,
outside of the Grubbs family, have had no issues with filing reports with Defendant Miller.”
(Docket No. 29 ¶¶ 73, 74). However, she has not actually identified any of the similarly situated
individuals or pointed to any instances when such individuals were treated differently than her
with regard to the enforcement of PFA orders. Simply alleging that unidentified “other”
individuals did not have issues filing reports about PFA violations with Miller is not enough to
survive Miller’s motion. See Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006)

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(dismissing class-of-one claim because the plaintiff failed to allege “the existence of similarly
situated individuals”). Accordingly, Plaintiff’s equal protection claim will be dismissed.
D.

Fabrication of Evidence

In count VII, Plaintiff alleges that she “suffered a deprivation of her procedural due
process rights under the Fourteenth Amendment” on account of fabricated evidence. (Docket No.
29 ¶ 98). Defendants have raised various arguments as to why this claim should be dismissed.
Among them, Miller contends that Plaintiff’s “fabrication claim does not describe any
deprivation of liberty,” as is required to state a procedural due process claim. (Docket No. 39 at
2). The Court agrees and thus need not address the parties’ remaining contentions.
As already noted, the Court of Appeals has recognized a standalone claim for fabrication
of evidence, which arises under the procedural component of the Fourteenth Amendment’s due
process clause. See Black, 835 F.3d at 369 (citing Halsey, 750 F.3d at 294). However, as the
Second Circuit explained in Zahrey v. Coffey, a case that the Court of Appeals favorably cited in
Black, while “[l]itigants sometimes speak of a ‘right to due process’ … the Constitution does not
guarantee ‘due process’ in the abstract; it guarantees that ‘[n]o person shall ... be deprived of life,
liberty, or property, without due process of law.’” 221 F.3d 342, 348 n.4 (2d Cir. 2000)) (quoting
U.S. CONST. amend. V). Thus, to state a procedural due process claim involving the fabrication
of evidence, it is not enough to allege that evidence was fabricated. A plaintiff must also allege
that she was deprived of her liberty in some manner as a result of the allegedly fabricated
evidence.3 See Cairel v. Alderden, 821 F.3d 823, 831 (7th Cir. 2016) (“For such a claim, the
3

The Court recognizes that in Black, the Third Circuit did not expressly address the deprivation of liberty
requirement when discussing the plaintiff’s procedural due process claim. The Court of Appeals did, however,
conclude that the plaintiff was deprived of her liberty for the purposes of the Fourth Amendment because she “was
required to fly from California to Pennsylvania for twelve pre-trial conferences in just a year ‘to appear in court at
the state’s command.’” Black, 835 F.3d at 368 (quoting Albright, 510 U.S. at 278 (Ginsburg, J., concurring)).
Presumably, such a deprivation would also count for the purposes of the Fourteenth Amendment. Although the
Court of Appeals did not expressly say so, this Court reads Black as impliedly recognizing that such a showing was

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plaintiff must have suffered a deprivation of liberty.”); Zahrey, 221 F.3d at 349 (“[I]f Zahrey had
claimed only that Coffey fabricated evidence and did nothing to precipitate the sequence of
events that resulted in a deprivation of Zahrey’s liberty, no constitutional violation would have
been alleged.”). “[T]he accused does not need to be tried and convicted for a deprivation to
occur[;] something short of a conviction—such as pretrial detention—is sufficient.” Myvett v.
Chicago Police Detective Edward Heerdt, --- F. Supp. 3d ----, 2017 WL 75738, at *10 (N.D. Ill.
Jan. 9, 2017).
In Zahrey, for example, the plaintiff was confined for eight months without bail on the
basis of fabricated grand jury testimony. Although he was subsequently acquitted, the Second
Circuit concluded that he pled “a classic constitutional violation: the deprivation of his liberty
without due process. The liberty deprivation is the eight months he was confined, from his bail
revocation (after his arrest) to his acquittal, and the due process violation is the manufacture of
false evidence.” Id. The same was true in Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d
1313, 1317 (11th Cir. 2015), another case that the Third Circuit cited favorably in Black. There,
the plaintiff was held for two years awaiting trial on false charges, and the court considered that
“a deprivation of liberty redressable under the Due Process Clause.” Id. at 1328.
By contrast, in this case, Plaintiff has not pled that she was deprived of her liberty in any
manner as a result of the allegedly fabricated evidence. To reiterate, Plaintiff was issued two
citations for summary offenses but never had any restrictions placed on her ability to travel—or
any other types of restrictions, for that matter. Although she had to appear at a summary trial,
“the burden of appearing in court and attending trial” does not, “in and of itself, constitute a
deprivation of liberty” for the purposes of the Fourteenth Amendment. Alexander v. McKinney,
necessary to establish a procedural due process claim for fabrication of evidence. Otherwise, the plaintiff would not
have been able to state a procedural due process claim. As further explained in the text, the Court of Appeals’
citation to cases from outside of this circuit that endorsed such a requirement bolsters this conclusion.

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692 F.3d 553, 557 n.2 (7th Cir. 2012). Absent such a deprivation, Plaintiff cannot state a
procedural due process claim. Accordingly, count VII will be dismissed.
E.

Failure to Train and Municipal Liability

In counts II and V, Plaintiff alleges claims for failure to train and municipal liability
against the Borough. Because Plaintiff has not sufficiently pled an underlying violation of her
constitutional rights, her failure to train and municipal liability claims necessarily must be
dismissed, as well. See Kneipp v. Tedder, 95 F.3d 1199, 1212 n.26 (3d Cir. 1996) (“Of course,
had there not been an underlying constitutional violation in the first instance, plaintiff’s ‘failure
to train’ claim against the City would not stand.”); Mulholland v. Gov’t Cnty. of Berks, 706 F.3d
227, 238 n.15 (3d Cir. 2013) (citing Los Angeles v. Heller, 475 U.S. 796, 799 (1986)) (“[I]f there
is no violation in the first place, there can be no derivative municipal claim.”).
F.

Civil Conspiracy

In count VI, Plaintiff alleges that Miller and Clarke engaged in a conspiracy to violate her
constitutional rights. “Absent a showing of an underlying violation of a federal right, no claim
for conspiracy under § 1983 can be established.” Bailey v. Marcus, No. CIV.A. 13-255, 2013
WL 2422754, at *5 n.3 (W.D. Pa. May 31, 2013); Ridgewood Bd. of Educ. v. N.E. ex rel. M.E.,
172 F.3d 238, 254 (3d Cir.1999) (“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
federally protected right.”). Hence, this count will be dismissed.
G.

Leave to Amend

The Court’s next inquiry is whether the dismissal of the federal claims in Plaintiff’s First
Amended Complaint should be with prejudice or without prejudice. Plaintiff previously was
granted leave of Court to file her amended complaint but has not requested leave to amend a

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second time in her responsive briefs nor supplied the Court with a proposed Second Amended
Complaint such that leave to amend may be denied. See, e.g., U.S. ex rel. Zizic v.
Q2Administrators, LLC, 728 F.3d 228, 243 (3d Cir. 2013) (“[A] ‘bare request in an opposition to
a motion to dismiss—without any indication of the particular grounds on which amendment is
sought ...—does not constitute a motion within the contemplation of Rule 15(a).’”) (quoting
Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1280 (D.C. Cir. 1994)); McWreath v. Range
Res.–Appalachia, LLC, 645 F. App’x 190, 196 (3d Cir. 2016) (“[T]he failure to submit a draft
amended complaint ‘is fatal to a request for leave to amend.’”) (quoting Zizic, 728 F.3d at 243).
In any event, the Court concludes that amendment to Plaintiff’s § 1983 claims would be futile
because such claims are based on a set of facts that are not cognizable under the proffered legal
theories. See Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (“An amendment is futile if the
amended complaint would not survive a motion to dismiss for failure to state a claim upon which
relief could be granted.”); Centifanti v. Nix, 865 F.2d 1422, 1431 (3d Cir. 1989) (“[A] district
court may properly deny leave to amend where the amendment would not withstand a motion to
dismiss.”). Accordingly, Plaintiff’s federal claims will be dismissed, with prejudice.
H.

IIED

Because all of Plaintiff’s federal claims will be dismissed, the Court declines to exercise
supplemental jurisdiction over her pendent state law claim for IIED and will dismiss that claim,
without prejudice. 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a) if ... the district court has dismissed
all claims over which it has original jurisdiction.”).
V.

Conclusion
For the foregoing reasons, Defendants’ motions to dismiss (Docket Nos. 30, 32) will be

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granted. An appropriate Order follows.
s/ Nora Barry Fischer
Nora Barry Fischer
U.S. District Court
Date: June 5, 2017
cc/ecf: All counsel of record

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