KITKO v. DUBOIS POLICE DEPARTMENT OFFICER RANDALL L. YOUNG et al

Filing 78

MEMORANDUM OPINION AND ORDER OF COURT granting 48 Motion to Dismiss; granting 50 Motion to Dismiss; granting in part and denying in part 52 Motion to Dismiss, and as more fully stated in said Memorandum Opinion and Order of Court. Signed by Judge Kim R. Gibson on 2/7/2012. (dlg)

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

CAMERON J. KITKO,

)
)
)

Plaintiff,

) CIVIL ACTION NO. 3:10-189
) JUDGE KIM R. GIBSON

v.

POLICE OFFICER RANDALL J.
YOUNG, in his individual capacity, LISA
A. ROSSI, and WILLIAM
SHAW, JR., in his individual capacity and
official capacity as the District Attorney of
Clearfield County,
Defendants.

)
)
)
)
)
)
)
)
)

MEMORANDUM OPINION AND ORDER OF COURT
I. SYNOPSIS

This matter comes before the Court on Defendant Lisa A. Rossi's Motion to Dismiss
Second Amended Complaint (Doc. No. 48), Defendants William Shaw Jr. and Clearfield
County's Motion to Dismiss Second Amended Complaint (Doc. No. 50), and Defendant Randall
J. Young's Motion to Dismiss Second Amended Complaint (Doc. No. 52). Plaintiff Cameron J.

Kitko opposes all three Motions (Doc. Nos. 54, 55 and 57). For the reasons set forth herein,
Defendant Rossi's Motion is hereby GRANTED IN FULL; Defendants Shaw and Clearfield
County's Motion is hereby GRANTED IN FULL; and Defendant Young's Motion is
GRANTED IN PART and DENIED IN PART.
II. JURISDICTION AND VENUE

Jurisdiction is proper pursuant to 28 U.S.C. § 1343 and 28 U.S.C. § 1367. Venue is
proper pursuant to 28 U.S.C. § 1391(b).

III. PROCEDURAL AND FACTUAL BACKGROUND
This case arises from events leading to and culminating with a police search of the home
of Plaintiff Cameron J. Kitko at 41 Albion Road in Punxsutawney, Pennsylvania, on February 3,
2010. Plaintiff alleges that the search, which was connected to a criminal investigation against
his brother Walter Kitko, was illegal, and that each of the three Defendants played a role in
violating his rights under the United States Constitution, the Pennsylvania Constitution, and
Pennsylvania law. Plaintiff filed his original Complaint (Doc. No. 1) in this Court on July 16,
2010 against Defendants Young, Clearfield County and Rossi.

All three of the original

Defendants subsequently filed Motions to Dismiss (Doc. Nos. 14, 16, and 18).

However,

Plaintiffs original attorney Joseph Devecka moved to withdraw from representation on August
24, 2010 (Doc. No. 20), which this Court granted three days later (Doc. No. 21). After the Court
denied Plaintiffs Motion for Reconsideration of Mr. Devecka's withdrawal (Doc. No. 24),
Plaintiff was unable to retain an attorney, and has since proceeded with this matter prose.
Plaintiff then requested leave of Court on November 22, 2010 to file an Amended
Complaint against the same Defendants (Doc. No. 29), which would incorporate additional
claims not previously pled in the original Complaint. After the Court granted Plaintiffs Motion,
the aforementioned Defendants once again filed Motions to Dismiss (Doc. Nos. 27, 30 and 32).
Without leave of Court, Plaintiff then filed a Second Amended Complaint (Doc. No. 35) on
January 10, 2011, which added Defendant Shaw to the existing claims against Clearfield County.
All Defendants filed a Motion to Strike the new complaint (Doc. No. 38), which this Court
denied on February 14, 2011, while also granting Plaintiffs Motion to file a Second Amended
Complaint. Accordingly, Plaintiffs Second Amended Complaint was deemed filed that same
day.

The three instant Defendants each subsequently filed a Motion to Dismiss the Second
2

Amended Complaint and a Brief in Support (Doc Nos. 48, 49, 50, 51, 52 and 53). In response,
Plaintiff has filed a Brief in Opposition to each ofthe Motions (Doc. Nos. 54, 55 and 57).
IV. STANDARD OF REVIEW
Defendants each brought their Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
for failure to state a claim upon which relief may be granted. Rule 12(b)(6) must be balanced
with the requirements of Rule 8, which governs general pleading matters, and provides that "[a]
pleading that states a claim for relief must contain ... (2) a short and plain statement of the claim
showing that the pleader is entitled to relief." FED. R. CIV. P. 8. Because Plaintiff is proceeding
prose, his pleading is to be liberally construed, and his Second Amended Complaint, "however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89,94 (2007) (citations omitted).
While the recent decisions of the United States Supreme Court in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), represent a

significant change in federal pleading standards, the United States Court of Appeals for the Third
Circuit has provided clear guidance to the district courts. To wit:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district
courts should conduct a two-part analysis. First, the factual and legal elements of a claim
should be separated. The District Court must accept all of the complaint's well-pleaded
facts as true, but may disregard any legal conclusions. !d. Second, a District Court must
then determine whether the facts alleged in the complaint are sufficient to show that the
plaintiffhas a "plausible claim for relief." 129 S. Ct. at 1950. In other words, a complaint
must do more than allege the plaintiffs entitlement to relief. A complaint has to "show"
such an entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the Supreme Court
instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged - but it has not
'show[n]' - 'that the pleader is entitled to relief."' Iqbal, 129 S. Ct. at 1950. This
"plausibility" determination will be "a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense." !d.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). In short, a district court
3

reviewing a motion to dismiss for failure to state a claim must "accept all factual allegations as
true, construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief." !d. at 210
(quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). However, "legal
conclusions" and "[t]hreadbare recitals of elements of a cause of action, supported by mere
conclusory statements, do not suffice" as bona fide factual material. lqba/129 S. Ct. at 1949.
V. DISCUSSION
Plaintiffs Second Amended Complaint pleads seven claims against the Defendants. Two
are made jointly against Defendants Young and Rossi (Counts One and Five); three are made
solely against Defendant Young (Counts Two, Three, and Four); one is made against Defendants
Shaw and Clearfield County (Count Six); and one is made jointly against Defendants Young and
Shaw (Count Seven). Because some counts involve more than one Defendant, the Court will
assess all three Motions together and evaluate their respective arguments as to each count.
In addition, the Court notes that Plaintiff has attempted to add additional facts to the
record in his Memoranda of Opposition, as well as attached affidavits and additional
documentation attached to the Memoranda. The Court once again emphasizes that Plaintiff was
given two opportunities to amend his Complaint. Therefore, to the extent that Plaintiff pleads
new facts in any of his responses to the Motions, the Court declines to consider them, and relies
on only those facts pled in the Second Amended Complaint.
A. Count One - Civil Conspiracy (Young and Rossi)
Plaintiff first alleges that Defendants Young and Rossi took part in a civil conspiracy to
"knowingly, deliberately and intentionally deprive the Plaintiff of his right to be free from
unreasonable searches," as guaranteed by the Fourth Amendment. Doc. No. 45 at 30. As a
4

result of this conspiracy, he asserts that his home was subject to search without probable cause,
leading to Plaintiff suffering physical and mental harm.

Defendant Rossi argues that 1)

Plaintiffs facts are inaccurate; 2) the Complaint pleads mere allegations, which are insufficient
for a federal civil conspiracy claim to survive a Motion to Dismiss; 3) neither Rossi nor Young
intended to violate Plaintiffs constitutional rights, and 4) the search by Young was done validly
in furtherance of an ongoing criminal investigation.

Doc. No. 49 at 7-10.

For his part,

Defendant Young argues that 1) there was no violation of Defendant's constitutional rights, thus
precluding a civil conspiracy claim; and 2) in the alternative, that the Second Amended
Complaint's conspiracy claim is implausible on its face. Doc. No. 53 at 29.
Plaintiffs federal civil conspiracy claim arises under 42 U.S.C. § 1983, which
establishes a cause of action for violations of rights created by the Constitution or federal law. 1
To properly plead a civil conspiracy claim under § 1983, plaintiffs must both satisfy the basic
elements of a § 1983 claim, as well as the elements of a conspiracy claim. Cunningham v. North

Versailles Township, 2010 WL 391380 at *5 (W.D.Pa. Jan. 27, 2010) (citing Marchese v.
Umstead, 110 F.Supp.2d 361, 371 (E.D.Pa. 2000). Regarding the pleading standard for§ 1983
claims, the Supreme Court has indicated that only two allegations are required: first, that some
person has deprived plaintiff of a federal right, and second, that the person who deprived plaintiff
of that right acted under the color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). To
plead a conspiracy claim, a plaintiff "must provide some factual basis to support the existence of
1

Plaintiff also argues that this action arises under 42 U.S.C. § 1985. Doc. No. 1 at 1. However, that
statute does not apply here, as plaintiffs bringing a claim under 42 U.S.C. § 1985 must plead "some racial,
or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action ... "
Farber v. City of Patterson, 440 F.3d 131, 135 (3d Cir.2006) (quoting Griffin v. Breckinridge, 403 U.S.
88, 102 ( 1971 ). Plaintiff makes no such assertions in his Second Amended Complaint, nor is it clear to
the Court how race or class-based discrimination would have occurred in this case. Accordingly, we
analyze Plaintiffs civil conspiracy claim as arising under 42 U.S.C. § 1983.
5

the elements of a conspiracy: agreement and concerted action." Capogosso v. The Supreme
Court of N.J., 588 F.3d 180, 185 (3d Cir. 2009) (quoting Crabtree v. Muchmore, 904 F.2d 1475,
1480-1 (1oth Cir. 1990). Private individuals may be deemed to have acted under color of state
law in a § 1983 action if they conspired with state actors to violate a plaintiffs civil rights.
Catanzaro v. Collins, 2010 WL 1754765 at *9 (M.D.Pa. April27, 2010). However, such claims
must rise above "mere labels and conclusions." Capogosso, 588 F.3d at 184.
In reviewing Defendants Rossi and Young's objections to Plaintiffs Second Amended
Complaint, several arguments can be disposed with immediately. First, it does not matter for
purpose of a Rule 12(b)(6) motion whether Plaintiffs facts are inaccurate, or whether the
Defendants present some other version of those facts. Instead, we must take all of Plaintiffs
well-pled facts as true, thus disqualifying Defendants' arguments regarding the accuracy or
plausibility of Plaintiffs claims, Defendants' intentions vis-a-vis Plaintiff, and the nature of the
search itself. These are factual matters more appropriately reserved for a motion for summary
judgment.
However, Defendants both raise valid arguments as to whether Plaintiffs federal civil
conspiracy claim has been properly pled, and most notably, whether Plaintiffs averments rise
beyond the level of conclusory statements, as set forth by the Supreme Court in Iqbal. In his
respective Responses to Rossi's and Young's Motions to Dismiss, Plaintiff argues that he has
alleged sufficient specific facts to support his claim. Doc. No. 54 at 4; Doc. No. 57 at 11. The
Court agrees that, for purpose of a Rule 12(b)( 6) motion, Plaintiff has set forth numerous
averments which are directly relevant to his federal civil conspiracy claim. These include his
allegations that 1) Rossi desired to obtain certain photographs, "including by unlawful means",
that she believed to be in Plaintiffs brother's possession (Doc. No. 45 at 3-4); 2) Rossi
6

"knowingly and falsely... advised Young that [Plaintiffs brother] also owned the Plaintiffs
residence at 41 Albion Road (/d. at 4); 3) Young had "actual or constructive knowledge" that
Plaintiffs brother did not own or reside the aforementioned residence and that Rossi's
information was false (!d.); and 4) Rossi and Young "wholly fabricated" their allegations
regarding picture and voice messages allegedly sent to Rossi (!d. at 5-6).
Nevertheless, despite these averments, the Court finds that Plaintiff has not met his
pleading burden for a § 1983 civil conspiracy claim. The Court first notes that while Plaintiff is
proceeding prose, he has been given two previous opportunities to amend his Complaint in order
to properly establish his claims.

In this Second Amended Complaint, he has still not pled

sufficient facts to establish "agreement" and "concerted action" on the part of Defendants to
violate Plaintiff's constitutional rights. Instead, Plaintiff pleads facts regarding the behavior and
intentions of Defendants prior to the search in question - which was, after all, focused on the
activities of Plaintiffs brother, and not Plaintiff - and classifies these facts as being "in
furtherance of [Defendants'] concerted scheme, plan and design to intentionally violate
plaintiffs constitutional rights." Doc. No. 45 at 5-6. This latter statement is a legal conclusion,
which we need not accept under the Iqbal standard. And absent his general allegation of a
conspiracy, Plaintiff has not pled sufficient facts to suggest that a) Rossi and Young agreed
together to violate his rights, and b) they took concerted action to that effect. As the Third
Circuit has made clear, in the post- Twombly and Iqbal era, plaintiffs bringing a conspiracy claim
must set forth "'enough factual matter (taken as true) to suggest that an agreement was made,"'
or '"plausible grounds to infer an agreement."' Great Western Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 178 (3d Cir.20 10) (quoting Twombly, 550 U.S. at 556). Plaintiff

has not done so here. Accordingly, and considering that Plaintiff has had two previous chances
7

to amend his Complaint, his federal civil conspiracy claim against Defendants Rossi and Young
is hereby dismissed with prejudice.

B. Count Two -Unreasonable Search under Fourth Amendment (Young)
Plaintiffs second claim is that because of Defendant Young's actions, Plaintiff "was
subjected to a search of his premises without probable cause and the Defendant deprived the
Plaintiff of his Fourth Amended [sic] U.S. Constitutional right to be free from unreasonable
searches." Doc. No. 45 at 10. In response, Defendant Young argues that there was ample
probable cause for the warrant, Doc. No. 53 at 21, and alternatively, that this claim is barred
because of Young's qualified immunity. Doc. No. 53 at 27.
The Court finds neither of Defendant Young's arguments persuasive for purpose of a
Rule 12(b)(6) motion. First, Plaintiff has met his initial burden under 42 U.S.C. § 1983 in that he
has pled deprivation of a federal right, and that Defendant Young acted under color of state law.
Second, Plaintiff has met his burden for violations of the Fourth Amendment involving invalid
search warrants.

Under the test established by the Supreme Court in Franks v. Delaware,

plaintiffs challenging the validity of a search warrant must show that 1) defendant made a false
statement in the warrant application either knowingly and intentionally, or with reckless
disregard for the truth, and 2) the false statement was necessary to the finding of probable cause.

Franks v. Delaware, 438 U.S. 154, 155-6 (1978).

Plaintiff clearly contends in his Second

Amended Complaint that Young 1) "had actual or constructive knowledge" that Plaintiffs
brother did not own Plaintiffs home, along with supporting statements as to the circumstances of
Defendant Young's obtaining this information; and 2) that the information was supplied on the
warrant, leading to the allegedly illegal search.

Doc. No. 45 at 4, 10. Defendant Young's

furnishing of contradictory information regarding the circumstances of the warrant, while
8

perhaps informative, is nevertheless unavailing as to the motion at hand, as its consideration
involves a factual inquiry not appropriate at this stage. Accordingly, this argument fails.
Regarding qualified immunity, the Supreme Court has held the doctrine to apply when a
state actor's conduct does not violate clearly established rights of which a reasonable person
would have known. Brandon v. Holt, 469 U.S. 464, 472-3 (1985). As the Third Circuit has
noted, an inquiry into qualified immunity is a two-step process. First, a court must determine
whether clearly established rights have been violated.

Next, the court must decide if the

defendant acted reasonably in depriving the plaintiff of his constitutional rights.

Abbott v.

Latshaw, 164 F.3d 141, 148 (3d Cir.1998). Because the Fourth Amendment's protection against

unlawful searches and seizures is well-known, the first element has been satisfied. The second
element requires a factual inquiry, which is not appropriate at this stage. See Gale v. Storti, et al,
608 F.Supp.2d 629, 634 (E.D.Pa.2009) (holding that, for purpose of motion to dismiss, once
plaintiff establishes that constitutional rights have been violated, analysis of qualified immunity
is best deferred to summary judgment). Accordingly, Defendant Young's qualified immunity
defense is denied without prejudice as to its being raised at a later stage of the litigation.
Given that the Court deems Count Two of Plaintiffs Second Amended Complaint as
capable of proceeding, it next addresses Defendant Young's argument that punitive damages are
not available in this case. Doc. No. 53 at 34. It is evident from Defendant Young's brief, as well
as Plaintiffs response, that factual inquiries would be required to determine whether such
damages would be allowed. Therefore, this issue is more appropriately raised at the summary
judgment stage.
C. Count Three - Violation of Pennsylvania Constitution (Young)

Plaintiffs third claim is related to the same conduct referenced in his second claim
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against Young, but is pled as a violation of the Pennsylvania Constitution. Doc. No. 45 at 11.
Although not evident from the Complaint, the Court presumes that Plaintiff refers to Article I,
Section 8 of the Pennsylvania Constitution, which holds that "[t]he people shall be secure in their
persons, houses, papers and possessions from unreasonable searches and seizures, and no
warrant to search any place or seize any person or things shall issue without describing them as
nearly as may be, nor without probable case, supported by oath or affirmation subscribed to by
the affiant." PA. CONST. ART. 1, § 8. In response, Defendant Young contends that there is no
Pennsylvania statutory equivalent to 42 U.S.C. § 1983, and that this claim must therefore fail as a
matter of law. Doc. No. 53 at 30.
The Court notes that to date, neither federal courts nor Pennsylvania state courts have
recognized a cause of action for monetary damages for violations of the Pennsylvania
Constitution.

See Braun v. State Correctional !nsf. at Somerset, 2010 WL 10398 at

*11

(W.D.Pa. 2010 Jan. 4, 2010) (granting motion to dismiss claims for money damages under
Pennsylvania Constitution because no statutory authority or case law authorizes such an action);

Jones v. City of Philadelphia, 890 A.2d 1188, 1208 (Pa.Commw.Ct.2006) (noting that "neither
Pennsylvania statutory authority, nor appellate case law has authorized the award of monetary
damages for a violation of the Pennsylvania Constitution"). Plaintiff seems to address the issue
in his response by suggesting that Defendant Young's conduct was a violation of a Pennsylvania
statute, 42 PA.CONS. STAT. § 8953. Doc. No. 57 at 3. However, he provides no indication as to
how this statute furnishes him a cause of action. 2 Nor is the Court persuaded by his request to

2

As Plaintiff's Memorandum of Law in Opposition to Defendant Young's Motion to Dismiss (Doc. No.
57) is unclear as to whether he is attempting to clarify his earlier pleading of Count Three, or is instead
expounding on Count Seven, which implicates 42 Pa.Cons. Stat. § 8953, the Court will assume that
Plaintiff is making the same argument as to both Counts Three and Seven.
10

amend his Complaint yet again to somehow properly plead a state law cause of action pertaining
to Defendant Young's search. 3 As already noted, Plaintiff has had two previous opportunities to
do so.

Accordingly, Count Three of the Plaintiffs Second Amended Complaint is hereby

dismissed with prejudice.

D. Count Four- Violation of Fourteenth Amendment (Young)
Plaintiffs fourth claim is that during the course of the allegedly illegal search of
Plaintiffs home, Defendant Young enabled the confiscation of Plaintiffs personal property in
violation of his Fourteenth Amendment right not to be deprived of property without due process
of law.

Doc. No. 45 at 12. Defendant Young counters that 1) Plaintiff has no Fourteenth

Amendment claim because the conduct at issue is governed by a specific constitutional
amendment- the Fourth, which therefore subsumes this claim, and 2) Defendant's conduct does
not rise to the level of violating the Fourteenth Amendment. Doc. No. 53 at 18-19. In response,
Plaintiff further argues that Defendant Young had no authority to seize property not included in
the search warrant. Doc. No. 57 at 13.
A review of the Second Amended Complaint reveals that Plaintiff has provided few facts
regarding the alleged deprivation of property during the search executed by Defendant Young.
Nowhere in the Complaint, nor in Plaintiffs response to Defendant Young's motion to dismiss,
does he clearly indicate what property was confiscated without due process of law (other than to

3

Plaintiff also requests that this Court "take judicial notice of the fact that the search warrant in question
which was used to search the Plaintiffs home was from a magistrate whose magisterial district was not
located within the judicial district of Defendant Young's primary jurisdiction, insamuch [sic] that the
court is provided with the necessary information to ascertain such a fact." Doc. No. 57 at 6. The Court
notes that taking judicial notice of any fact is premature at this stage of the litigation, and it declines to do
so.
II

indicate that police officers broke down his front door). 4 However, regardless of what property
was taken, Plaintiff has not properly pled a Fourteenth Amendment violation. As the Supreme
Court has clearly indicated, "an unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedural requirements of the Due Process
Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is
available." Hudson v. Palmer, 468 U.S. 517, 533 (1984).

Pennsylvania's post-deprivation

remedies have been deemed meaningful for purpose of alleged violations of the Fourteenth
Amendment. Cook v. Drew, 2007 WL 3072238 at *9 (W.D.Pa. Oct. 19, 2007). Therefore,
Plaintiff must provide facts showing that state actors have refused to provide him the
aforementioned remedy. As the Supreme Court explained in Hudson, this is because "the state's
action is not complete until and unless it provides or refuses to provide a suitable postdeprivation

Hudson, 468 U.S. at 533.

remedy."

Plaintiff has not furnished any facts regarding such

postdeprivation state action; there is no indication that he attempted to re-obtain his property
after the search of his home, or that Defendant Young or other state actors hindered any such
effort.

Accordingly, Plaintiffs Fourteenth Amendment claim is hereby dismissed with

prejudice.

E. Count Five- Civil Conspiracy State Law Claim (Rossi and Young)
In addition to his federal claim for civil conspiracy against Rossi and Young (Count
One), Plaintiff also brings a state law claim for civil conspiracy to deprive him of his rights under
both Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment. Doc. No.
45 at 13-14. In response, both Defendants Rossi and Young argue that 1) actions taken by Rossi
4

Plaintiff provides additional information in an Affidavit and Receipt accompanying his Memorandum of
Opposition (Doc. No. 56), but most of these facts were not pled in the Second Amended Complaint and
are therefore not considered here.
12

and/or Young alleged in Plaintiffs complaint were neither malicious nor directed toward
Plaintiff, and 2) the search of Plaintiffs residence was lawful. Doc. No. 49 at 11; Doc. No. 53
at 32-3. For his part, Plaintiff does not specifically reply to these arguments in his response, but
does emphasize that the Court is free to grant relief other than money damages for violations of
Pennsylvania state law. Doc. No. 57 at 14.
As already discussed, there is no cause of action for violations of the Pennsylvania
Constitution; therefore, Plaintiffs state law civil conspiracy claim fails as to money damages for
any infringement of Article I, Section 8. And even absent this principle, Plaintiffs state law
conspiracy claim for violations of both the Pennsylvania Constitution and the Fourth
Amendment fails. To establish a civil conspiracy claim under Pennsylvania law, Plaintiff must
plead (I) a combination oftwo or more persons acting with a common purpose to do an unlawful
act or to do a lawful act by unlawful means or for an unlawful purpose, (2) an overt act done in
pursuance of the common purpose, and (3) actual legal damage. Phillips v. Selig, 959 A.2d 420,
437 (Pa.Super.2008). Proof of malice, or intent to injure, is also an essential part of an action for
civil conspiracy. Com. v. TAP Pharmaceutical Products, Inc.,--- A.3d ----, 20II WL 394694I
at

* 24 (Pa.Cmwlth.20 II).

While the Court agrees that Plaintiff has properly pled the second

and third elements, Plaintiff has not met his burden for the first element. As the Court indicated
in its analysis of Plaintiffs federal civil conspiracy claim, while Plaintiff has pled facts that are
relevant to an alleged conspiracy between Rossi and Young, these facts are not sufficiently
specific, absent Plaintiffs otherwise conclusory statements, as to a conspiracy directed toward
the violation of Plaintiff's rights. To be sure, as already detailed, the pleading standard differs
between a 42 U.S.C. § I983 civil conspiracy and a civil conspiracy under Pennsylvania law. But
the Pennsylvania standard nevertheless requires malice and or intent to injure directed toward the
13

Plaintiff.

There are no facts to that end in the Plaintiffs Second Amended Complaint.

Therefore, Plaintiffs state law civil conspiracy claim is hereby dismissed with prejudice.

F. Count Six - Violations of Fourth and Fourteenth Amendments (Shaw and Clearfield
County)
Plaintiff brings his sixth claim against Defendant Shaw, the district attorney of Clearfield
County. In the course of pleading this claim, he additionally refers to Clearfield County as a
defendant. Doc. No. 45 at 14. Plaintiff asserts that Defendant Shaw approved the allegedly
illegal search warrant of Plaintiffs home, thus violating Plaintiffs Fourth and Fourteenth
Amendment rights, as already set forth in Counts Two and Four against Defendant Young. He
further asserts that Defendant Clearfield County "maintained a policy, custom or practice of
approving search warrants without probable cause, in the instant case, and over a long period of
time." Doc. No. 45 at 15. In response, Shaw and Clearfield County argue that 1) Plaintiff has
not properly pled either Fourth or Fourteenth Amendment claims and 2) Shaw is entitled to
absolute prosecutorial immunity, or, in the alternative, qualified immunity for his actions in
approving the warrant. Doc. No. 51 at 9-16. Plaintiff counters that 1) he has pled sufficient facts
to uphold his claims, and 2) Shaw is not entitled to absolute prosecutorial immunity because he
was acting in an investigatory, not prosecutorial, capacity in approving the warrant.
We first note that in his Memorandum of Law in Opposition to Defendant Shaw's Motion
to Dismiss, Plaintiff attempts to add to the record additional facts to shed light on his federal
claims against Defendant Shaw. The Court once again emphasizes that Plaintiff was given two
opportunities to amend his Complaint. Therefore, to the extent that Plaintiff pleads new facts in
his Memorandum in Opposition, the Court declines to consider them for purpose of the instant
Motion, and relies on only those facts pled in the Second Amended Complaint. In addition, we
14

do not consider Defendant Shaw's arguments regarding immunity, as this would involve
questions of fact best reserved for the summary judgment stage.
A review of the Complaint reveals there are very few statements relevant to Plaintiffs
claims against Shaw and/or Clearfield County.

First, Plaintiff asserts that Defendant Rossi

sought Shaw's assistance to obtain photos in possession of Plaintiffs brother, but he does not
explain what assistance she sought or whether such assistance was provided. Doc. No. 45 at 3-4.
Second, Plaintiff alleges that Defendant Young "sought and received advise [sic] from Shaw on
how to proceed in obtaining the alleged pictures." !d. at 4. Third, Plaintiff then asserts that
Defendant Shaw approved the allegedly illegal search warrant "despite the clear and obvious
legal deficiencies, falsities, misstatements and omissions of the Affidavit of Probable Cause,
which Defendant Shaw knew of, or had reason to know ... " !d. at 7. Fourth, Defendant Shaw is
said to have had "actual and/or constructive knowledge" that Defendant Young secured the
warrant under knowingly false pretenses, and that Defendant Shaw "could not have reasonably
believed that they could rely on said warrant as being lawful" because "the application and
affidavit for the search warrant was so lacking in indicia of probable cause as to render reliance
on it wholly unreasonable." !d. at 8. Fifth, Plaintiff asserts that Defendant Shaw approved the
search warrant for Plaintiffs residence in February 2010, and "ordered the actual search ... " !d.
at 15. Sixth, Plaintiff states that Shaw's actions led to the violation of Plaintiffs Fourth and
Fourteenth Amendment rights. !d. Finally, Plaintiff asserts that Clearfield County "maintained a
policy, custom, or practice of approving search warrants without probable cause, in the instant
case, and over a long period of time." !d.
These statements, when considered together, fall short of meeting Plaintiffs pleading
burden. First, as already discussed above in the Court's consideration of Count Four, Plaintiff
15

has not pled sufficient facts to demonstrate a violation of his Fourteenth Amendment rights,
either as to Defendant Young or Defendant Shaw. In addition, while Plaintiff successfully pled a
Fourth Amendment claim against Defendant Young, Plaintiffs statements regarding Defendant
Shaw's conduct are relatively paltry. Of the statements considered above, numbers three, four,
and six all contain legal conclusions without sufficient supporting facts. The Court need not
accept these under the standard set forth in Iqbal. This leaves statements one, two, five and
seven. Of these, statements one, two, and five are either irrelevant or insufficiently vague to
establish a violation of Plaintiffs rights by Shaw. Finally, statement seven, seemingly aimed at
maintaining an action against Clearfield County, is a general accusation with no accompanying
supporting fact. As a result, Plaintiff does not meet his pleading burden for either his Fourth or
Fourteenth Amendment claims. The Court therefore dismisses this claim with prejudice as to
both Defendants Shaw and Clearfield County.

G. Count Seven- Violation of State Law (Young and Shaw)
Finally, Plaintiff asserts a claim against Defendants Young and Shaw for violation of the
Pennsylvania Municipal Police Jurisdiction Act, 42 Pa. Cons. Stat. § 8953. Defendant Young's
response is premised on the supposition that Plaintiffs federal claims should be dismissed, and
therefore the Court should decline to exercise its jurisdiction over this state law claim. Doc. No.
53 at 33. In his response, Defendant Shaw argues that the law as stated does not apply to him.
Doc. No. 51 at 16-17.
The Court need not consider these arguments because Count Seven does not plead a
particular cause of action, nor does the Municipal Police Jurisdiction Act establish one. Further,
because there is no cause of action for violations of the Pennsylvania Constitution, there is no
relief for Plaintiff as to this claim under state law. As discussed regarding Count Three, the
16

Court is not persuaded by Plaintiffs request to amend his Complaint yet again to somehow
properly plead a state law cause of action. Doc. No. 57 at 5-6. And even if the Court were to
construe this Count liberally as pleading a cause of action for infringement of Plaintiffs federal
constitutional rights through the violation of a state statute, Plaintiffs claim must fail, as
"violation of the MPJA simply does not demonstrate violation of constitutional rights."
McDonald v. Darby Borough, 2008 WL 4461912 at *3 (E.D.Pa. Oct. 3, 2008). Accordingly,
Count Seven is hereby dismissed with prejudice.
VI.

CONCLUSION

For the reasons stated above, Defendant Rossi's Motion to Dismiss (Doc. No. 48) is
hereby GRANTED IN FULL; Defendants Shaw and Clearfield County's Motion to Dismiss
(Doc. No. 50) is hereby GRANTED IN FULL; and Defendant Young's Motion to Dismiss
(Doc. No. 52) is hereby GRANTED IN PART and DENIED IN PART. An appropriate order
follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CAMERON J. KITKO,
Plaintiff,
v.

RANDALL YOUNG, in his official and,
individual capacities, LISA A. ROSSI, in
her individual capacity, and WILLIAM
SHAW, JR., in his individual capacity and
as the DISTRICT ATTORNEY OF
CLEARFIELD COUNTY
Defendants.

)
)
)
) CIVIL ACTION NO. 3:10-189
) JUDGE KIM R. GIBSON
)
)
)
)
)
)
)
)
)

ORDER
AND NOW, this 7th day of February 2012, this matter coming before the Court on
Defendant Lisa Rossi's Motion to Dismiss (Doc. No. 48), Defendants William Shaw Jr. and
Clearfield County's Motion to Dismiss (Doc. No. 50), and Defendant Randall Young's Motion
to Dismiss (Doc. No. 52), IT IS HEREBY ORDERED as follows:
1. Defendant Rossi's Motion to Dismiss is GRANTED IN FULL, and all claims
against her are DISMISSED WITH PREJUDICE.

The Clerk of the Court is

directed to enter JUDGMENT in favor of Defendant Rossi as to Counts One and
Five of Plaintiffs Second Amended Complaint.
2. Defendants Shaw and Clearfield County's Motion is GRANTED IN FULL, and all
claims against them are DISMISSED WITH PREJUDICE. The Clerk of the Court
is directed to enter JUDGMENT in favor of Defendants Shaw and Clearfield County
as to Count Six of Plaintiffs Second Amended Complaint, and in favor of Defendant
Shaw as to Count Seven of Plaintiffs Second Amended Complaint.
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3. Defendant Young's Motion to Dismiss is GRANTED IN PART and DENIED IN
PART.

The Clerk of the Court is directed to enter JUDGMENT in favor of

Defendant Young as to Counts One, Three, Four, Five, and Seven, which are
DISMISSED WITH PREJUDICE.

Count Two of Plaintiffs Second Amended

Complaint may proceed.

KIM R. GIBSON,
UNITED STATES DISTRICT JUDGE

19