Opinion
2:20-CV-00915-LPL
08-13-2021
EDWARD HARRIS, Plaintiff, v. TONYA WROBLE, IN HER INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY AS A PENNSYLVANIA STATE TROOPER; GARRY HOFFMAN, IN HIS INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY; MICHAEL SPADA, IN HIS INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY AS A CORPORAL WITH THE PENNSYLVANIA STATE POLICE; HOFFMAN KENNELS, THOMAS WHARRY, IN HIS INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY AS A PENNSYLVANIA DEPARTMENT OF AGRICULTURE DOG ENFORCEMENT OFFICER; Defendants,
ECF Nos. 22, 38
Cathy Bisson District Judge
REPORT AND RECOMMENDATION ON MOTIONS TO DISMISS
LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENATION
It is respectfully recommended that the Motions to Dismiss Plaintiff Edward Harris' Complaint filed by Tonya Wroble, Michael Spada, and Thomas Wharry (“Commonwealth Defendants”) (ECF No. 22), and by Defendants Gary Hoffman and Hoffman Kennels (ECF No. 38), be granted. The Court recommends that Plaintiff's claims against all Defendants in their official and individual capacities for illegal search and seizure under the Fourth Amendment, reckless investigation, equal protection under the Fourteenth Amendment, and intentional infliction of emotional distress under Pennsylvania state law, be dismissed with prejudice for having been filed outside the two-year statute of limitations period. In addition, the claims of malicious prosecution and conspiracy against all Defendants in their official and individual capacities should be dismissed with prejudice, as Plaintiff has failed to state those claims and any amendment would be futile.
Commonwealth Defendants move for dismissal on all claims against them in their official capacity, but do not move to dismiss the malicious prosecution claim in particular.
II. REPORT
A. Factual Allegations and Procedural Background
Plaintiff Edward Harris (“Plaintiff”) brings this civil action pursuant to 42 U.S.C. § 1983 for violation of his Fourth and Fourteenth Amendment rights when his 23 pit bull dogs were seized and forfeited in a search by the Commonwealth Defendants on August 1, 2017. ECF No. 8. Plaintiff alleges that Defendants relied on false allegations against him to enter his property with a legally insufficient warrant and seize all of Plaintiff's dogs. Id. ¶¶ 10, 12, 13. Plaintiff alleges that Wroble offered no proof when she signed an affidavit attesting that he raised, trained, and fought pit bull dogs. Id. ¶ 32.
Plaintiff alleges that Defendant Hoffman “maliciously labeled the Plaintiff as a dog fighter and directed Defendant Wroble and Spada to proceed against Plaintiff criminally, ” even though Hoffman never saw him around any of the dogs. Id. ¶¶ 19, 20. He alleges that Hoffman told Wroble that he had confiscated the injured dogs from another property owned by someone else, and that the dogs were also owned by someone else. Id. ¶ 25.
On September 1, 2017, Defendant Wroble filed a 69-count criminal complaint against Plaintiff. Id. ¶ 14. A judge dismissed the felonies and misdemeanors charged in that complaint. Id. ¶ 15. Wroble subsequently filed a charge of 23 counts of Cruelty to Animals against Plaintiff on September 13, 2017. ECF No. 39, p. 48. A bench trial was held on March 25, 2019 and Plaintiff was found guilty on all counts. ECF No. 8, Id. ¶ 16. Plaintiff was sentenced to 20 days incarceration per count, to be served concurrently. ECF No. 39, pp. 34-40. At the time of his prosecution in this matter, Plaintiff was incarcerated in federal custody. Id. ¶ 18. He remains in federal custody at USP Hazelton.
According to his address of record. The BOP inmate locator also shows him to be an inmate there. See https://www.bop.gov/inmateloc/.
Defendant Wroble allegedly made “false and malicious statements” against Plaintiff at the forfeiture hearing for the dogs. Id. ¶ 31. Plaintiff alleges that this caused him and his family great suffering, and he was hospitalized as a result, while in Fayette County Prison. Id.
Plaintiff alleges that even though Defendant Spada was called to testify at one of his proceedings, he was never “present at the scene.” Id. ¶ 34. His only knowledge of the events came from Defendants Hoffman and Wroble. Id. Plaintiff claims this supports a conspiracy among the three of them against Plaintiff. Id. The conspiracy was for purposes of humiliating and punishing Plaintiff, and to ultimately take his dogs. Id. ¶ 37.
Plaintiff appealed his guilty convictions on the Cruelty to Animals charges. Id. ¶ 38. On November 19, 2019, the Superior Court remanded his case back to the trial court because the clerk of the Fayette County Court of Common Pleas neglected to enter Plaintiff's court appointed attorney's appearance on the docket and then failed to serve the appointed counsel with the court's verdict and sentencing order, Plaintiff's pro se Notice of Appeal, and the court's Rule 1925(b) Order. See Commonwealth v. Harris, No. 560 WDA 2019, 2019 WL 5960639, at *2 (Pa. Super. Ct. Nov. 13, 2019). On December 17, 2019, Plaintiff's convictions for 23 counts of animal cruelty were vacated, and a finding of not-guilty was entered into the record. Id. ¶ 41; see also ECF No. 39, pp. 38, 45.
Plaintiff's Complaint states “December 17, 2017, ” which the Court will construe as intended to be “2019.” His criminal docket at ECF No. 39 also reflects the date on which his convictions were vacated as December 17, 2019.
As a result of being arrested and prosecuted for animal cruelty, Plaintiff avers that he suffered economic damages due to the loss of his pit bulls, physical pain and suffering, emotional trauma, fright, horror, and shock. ECF No. 8.
Plaintiff's Motion for Leave to Proceed in forma pauperis was docketed on June 23, 2020. ECF No. 1. His Complaint was docketed on July 17, 2020. ECF No. 8. Plaintiff alleges six claims against Defendants: 1) violation of his Fourth Amendment right against unreasonable search and seizure; 2) violation of his Fourteenth Amendment right against reckless investigation; 3) conspiracy; 4) violation of his Fourteenth Amendment right to equal protection as a class of one; 5) malicious prosecution; and 6) intentional infliction of emotional distress. Id.
The Commonwealth Defendants filed their Motion to Dismiss with accompanying Brief in Support on November 30, 2020. ECF Nos. 22, 33. Plaintiff filed a Brief in Opposition to that motion on February 18, 2021. ECF No. 34. Defendants Gary Hoffman and Hoffman Kennels filed their Motion to Dismiss and accompanying Brief in Support on March 8, 2021. ECF Nos. 38, 39. Plaintiff filed his Brief in Opposition to that motion on April 13, 2021. ECF No. 45. The Motions are ripe for disposition.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice, and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings ‘in related or underlying cases which have a direct relation to the matters at issue.'”) (citations omitted).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (quoting Higgins, 293 F.3d at 688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
C. Discussion
i. Motion to Dismiss by Commonwealth Defendants
1. Statute of Limitations
The Commonwealth Defendants argue that Plaintiff's claim for a Fourth Amendment violation based on the unreasonable search of his property and seizure of his dogs should be dismissed because it is barred by the statute of limitations. Plaintiff does not address the statute of limitations issue in his Brief in Opposition to the Commonwealth Defendants' Motion to Dismiss. The Court finds that not only is the Fourth Amendment claim barred by the statute of limitations, but the reckless investigation, equal protection, and IIED claims have also been filed outside the two-year limit and are thus barred.
This Court recently stated:
Congress has not established a time limitation for a § 1983 cause of action. Wilson v. Garcia, 471 U.S. 261, 266 (1985), superseded by statute as recognized in, Kasteleba v. Judge, 325 Fed.Appx. 153, 156 (3d Cir. 2009). The United States Supreme Court has indicated, however, that courts are to consider § 1983 actions as tort actions and borrow the statute of limitations for state tort causes of action. Wilson, 471 U.S. at 278. In Pennsylvania, the statute of limitations for tort actions is two years. 42 Pa. Con. Stat. Ann. § 5524. Therefore, for § 1983 actions brought in Pennsylvania federal courts, the appropriate limitations period is two years. See Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985).
Federal law, however, governs when a § 1983 cause of action accrues; that is, when the statute of limitations begins to run. See Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal law, “‘the limitations period begins to run from the time when the plaintiff knows or has reason to know of the injury which is the basis of the section 1983 action.'” Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998) (quoting Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991)). “The cause of action accrues even though the full extent of the injury is not then known or predictable.” Wallace, 549 U.S. at 391 (citations omitted).Hill-Johnson v. Catanzaro, No. CV 19-30, 2020 WL 6110847, at *3 (W.D. Pa. Aug. 20, 2020). Here, affording Plaintiff the most liberal construction of his pro se Complaint, Plaintiff's claims against the Commonwealth Defendants for illegal search and seizure, reckless investigation, equal protection, and IIED are time-barred.
The Third Circuit applies the principle in Wallace to claims of violation of Fourth Amendment rights for illegal search and seizure. See Woodson v. Payton, 503 Fed.Appx. 110, 112 (3d Cir. 2012) (plaintiff's § 1983 claim accrued when the search and seizure occurred the moment that plaintiff indisputably knew about the alleged faults of search and seizure). As Defendants have argued, the earliest date by which Plaintiff's Fourth Amendment claim started to accrue would have been August 1, 2017; and the latest would have been September 1, 2017, when he was first charged in relation to the search of his property and the seizure of the pit bulls. The final date Plaintiff could have asserted this claim would have been September 1, 2019. Plaintiff's Motion for Leave to Proceed in forma pauperis was docketed on June 23, 2020, well outside of the two-year limitations period. ECF No. 1. Even allowing the date on which Plaintiff signed his motion, May 7, 2020, to be the date Plaintiff commenced this action, Plaintiff's claim is still time-barred.
Or the latest date on which these claims started to accrue could be September 13, 2017, the date that the charges for which Plaintiff was ultimately convicted were filed. However, that would make the last day which Plaintiff could have timely filed these claims September 13, 2019, which means Plaintiff's filing date is still untimely.
The same two-year limitation applies to a reckless investigation claim. Geness v. Cox, 902 F.3d 344, 355 (3d Cir. 2018) (the District Court correctly dismissed Geness's false arrest, false imprisonment, and reckless investigation claims as time-barred). While the Third Circuit Court of Appeals has not recognized a claim for reckless investigation under the Fourteenth Amendment, see Harvard v. Cesnalis, 973 F.3d 190, 207 (3d Cir. 2020), some District Courts have addressed this claim. See Geness v. Cty. of Fayette, No. CV 16-876, 2016 WL 6652758, at *5 (W.D. Pa. Nov. 9, 2016), aff'd sub nom. Geness v. Cox, 902 F.3d 344 (3d Cir. 2018) (referring to “failure to investigate” claims in discussing reckless investigation). However, any reckless investigation claim based on the facts alleged here would still be time-barred. As with the previous Fourth Amendment claim, the two-years' limitations period would have started accruing on August 1, 2017 at the earliest with the search of Plaintiff's property, and September 1, 2017 at the latest with Plaintiff being charged in relation to the search. See Geness at *5 (“To bring a successful due process claim for failure to investigate, a plaintiff must show that a police officer acted intentionally or recklessly, in a manner that shocks the conscience, in failing to investigate. Failure to investigate is considered in tandem with the strength or weakness of the probable cause evidence.”). Regardless of whether this is a cognizable claim within this jurisdiction, it is barred by the statute of limitations.
Plaintiff maintains that his equal protection rights under the Fourteenth Amendment were violated because the Defendants “used their authority as state actors to harass and unlawfully arrest” him, and that their unlawful conduct includes the “seizure, retention, and disposal of Plaintiff's 23 pit bulls.” ECF No. 8, ¶ 68. As his equal protection claim is based on allegations related to the search and seizure of Plaintiff's dogs, this means that at the latest, the equal protection claim began to accrue on September 1, 2017, the day Plaintiff was charged based on the same event. Thus, the equal protection claim is barred by the statute of limitations since Plaintiff filed the action after the two-year period had run.
As with the other claims, a claim for intentional infliction of emotional distress is also subject to the two-year limitations period. See Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003) (“Garvin's state law claims for assault and battery and intentional infliction of emotional distress also are governed by a two-year statute of limitations.”). Plaintiff claims IIED against Defendants because their “aforementioned conduct…is extreme and outrageous.” He incorporates by reference paragraphs 1 through 81 of his Complaint, which means the extreme and outrageous conduct includes the search and seizure, as well as the initiation of the criminal proceedings. Thus, the IIED claim would have started to accrue at the same time as the other claims mentioned above-on September 1, 2017 at the latest, when Plaintiff was first charged in connection to his pit bulls. As a result, Plaintiff's IIED claim is barred by the statute of limitations.
For the above reasons, it is respectfully recommended that Plaintiff's claims against all Defendants for illegal search and seizure under the Fourth Amendment, reckless investigation, equal protection under the Fourteenth Amendment, and intentional infliction of emotional distress under Pennsylvania state law, be dismissed with prejudice.
2. Eleventh Amendment Immunity
The Commonwealth Defendants argue that they are immune in their official capacities from suit under the Eleventh Amendment. ECF No. 23, p. 3. Specifically, they maintain that Defendants Wroble and Spada, as officers of the Pennsylvania State Police, and Defendant Wharry, as an officer of the Department of Agriculture Bureau of Dog Law Enforcement, fall under this immunity in their official capacities and that all claims against these Defendants in their official capacities should be dismissed with prejudice. Id., p. 4.
As correctly noted by Defendants, the Eleventh Amendment bars suits against a state in federal court by private parties. Laskari v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) (citing Alabama v. Pugh, 438 U.S. 781 (1978)). “Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it . . . a State cannot be sued directly in its own name regardless of the relief sought.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (citing Pugh, 438 U.S. at 781)). Eleventh Amendment immunity protects entities created by state governments that operate as alter egos or arms of the State. See Lake Country Estates v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 402 (1979). The United States Supreme Court has held that a § 1983 action brought against a “State and its Board of Corrections is barred by the Eleventh Amendment unless [the State] has consented to the filing of such a suit.” Pugh, 438 U.S. at 782. The Commonwealth of Pennsylvania has specifically reserved its right to immunity from suit in federal court pursuant to the Eleventh Amendment. 42 Pa. Cons. Stat. § 8521(b) (“Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.”) Moreover, the United States Supreme Court has held that § 1983 does not override a State's Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 342 (1979).
An action in federal court for damages or back pay against a state official acting in his official capacity is also barred. Laskaris at 26. The Pennsylvania State Police and its individual officers acting in their official capacity are immune from suit under the Eleventh Amendment. Atkin v. Johnson, 432 Fed.Appx. 47, 48 (3d Cir. 2011) (“The District Court correctly determined that the Eleventh Amendment bars claims for damages against the PSP, a state agency that did not waive its sovereign immunity. To the extent Johnson was sued in his official capacity, he too was immune from suit.”) The Department of Agriculture, under which is the Bureau of Dog Law Enforcement, is also an arm of the State and, as such, is entitled to 11th Amendment immunity. See Barber v. Pennsylvania Dep't Agric., No. CIV.A.9-1462, 2010 WL 1816760, at *3 (W.D. Pa. May 3, 2010).
The remaining claims that are not barred by the two-year statute of limitations are malicious prosecution and conspiracy. The Commonwealth Defendants are immune from suit in their official capacity. Thus, it is respectfully recommended that these two claims be dismissed with prejudice against the Commonwealth Defendants in their official capacity.
3. Conspiracy Claim
Defendants argue that Plaintiff fails to state a claim for Conspiracy because he does not incorporate any particularized allegations, such as the period of the conspiracy, the object of the conspiracy, or other actions that the conspirators might have used to achieve their purpose. ECF No. 23, p. 10. Plaintiff asserts in his response that his allegations contain enough specific facts to show that there was an agreement “between the Commonwealth defendants to deprive him of his constitutional rights.” ECF No. 34, p. 9.
This Court has previously stated that, to state a claim for conspiracy,
…Plaintiff is required to show “‘a combination of two or more persons to do a criminal act, or to do a lawful act by unlawful means or for an unlawful purpose.'” Panayotides v. Rabenold, 35 F.Supp.2d 411, 419 (E.D. Pa. 1999) (quoting Hammond v. Creative Financial Planning, 800 F.Supp. 1244, 1248 (E.D. Pa. 1992)). See also Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997) (citing Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974)). A conspiracy claim requires specific allegations “which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and certain other action of the alleged conspirators taken to achieve that purpose.” Id. “It is not enough that the end result of the parties' independent conduct caused plaintiff harm or even that the alleged perpetrators of the harm acted in conscious parallelism.” Spencer, 968 F.Supp. at 1020. Rather, there must be a showing that the alleged conspirators “directed themselves toward an unconstitutional action by virtue of a mutual understanding or agreement.” Chicarelli v. Plymouth Garden Apartments, 551 F.Supp. 532, 539 (E.D. Pa. 1982) (citing Tarkowski v. Bartlett Realty Co., 644 F.2d 1204 (7th Cir. 1980)). The United States Court of Appeals for the Third Circuit has made clear that in light of Twombly and its progeny, there must be “‘enough factual matter (taken as true) to suggest that an agreement was made,' in other words, ‘plausible grounds to infer an agreement.'” Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (quoting Twombly, 550 U.S. at 556). The facts alleged must raise “a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action.” Twombly, 550 U.S. at 557.Hill-Johnson v. DeAngelis, No. CV 19-1277, 2020 WL 4227983, at *5 (W.D. Pa. June 2, 2020), report and recommendation adopted, No. CV 19-1277, 2020 WL 4227523 (W.D. Pa. July 23, 2020)
Plaintiff alleges in his Complaint that Defendants Wroble and Spada conspired to carry out false charges and accusations by Hoffman against Plaintiff, to humiliate and punish him, and to take his dogs. ECF No. 8, ¶ 37. He alleges that Defendant Spada was not on the scene, yet was called to testify against Plaintiff with hearsay from Wroble and Hoffman, which further supports the assertion that there was a conspiracy among Wroble, Spada, and Hoffman. Id. ¶ 34. While Plaintiff alleges the persons involved in the conspiracy and their objective, he has not raised any particularities-such as the period of the conspiracy, or other actions taken by the conspirators- that would raise a suggestion of a preceding agreement. Plaintiff's allegations against Defendants can also be construed as them performing their duties as police officers. In addition, as this Court is aware, testimony based upon hearsay, i.e. the reports of other law enforcement officers, is acceptable in preliminary criminal proceedings. Without particularized facts, and only legally conclusory statements that Defendants' actions “constituted a conspiracy to violate the Plaintiff's constitutional rights…” (ECF No. 8, ¶ 63), Plaintiff does not meet the pleading standards to state a claim for conspiracy.
The Court would ordinarily recommend that the claim for conspiracy be dismissed without prejudice and Plaintiff be given leave to amend his Complaint with more particularities as to this claim. However, as the discussion below will show, the Court finds and recommends that Plaintiff's claim for malicious prosecution is insufficient, and that any amendment would be futile. This then also renders the conspiracy claim insufficient.
It is therefore unnecessary to address the Commonwealth Defendants' argument that Defendant Spada should be terminated from the case for lack of personal involvement and having absolute immunity as a testifying witness. ECF No. 22, p. 4. Dismissing the malicious prosecution and conspiracy claims would effectively close the case.
ii. Motion to Dismiss by Defendants Gary Hoffman and Hoffman Kennels
1. Defendant Hoffman Kennels
Defendant Hoffman Kennels argues that it should be dismissed from the case as there are no factual allegations against it in the Complaint. ECF No. 39, p. 6. The Court agrees with Defendant that simply naming “Defendants” in stating his claims does not meet the “plausibility” standard articulated in Twombly. See p. 4, supra. A complaint should set forth who is being sued, for what relief, and on what theory, with enough detail to guide discovery. Itiowe v. Trentonian, 620 Fed.Appx. 65, 68 (3d Cir. 2015) (quoting Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004)). Plaintiff does not even identify Hoffman Kennels under the section of his Complaint titled “Parties.” ECF No. 8. In addition, the nature of Plaintiff's allegations-that individuals illegally searched his property and seized his dogs and conspired to accuse him of crimes he did not commit-does not suggest that Plaintiff could amend his claims in any way as to involve Hoffman Kennels, a business entity, in these allegations.
Furthermore, any claims of illegal search and seizure, reckless investigation, equal protection under the Fourteenth Amendment, and intentional infliction of emotional distress that may possibly be made against Hoffman Kennels, is barred by the two-year statute of limitations, as they are for the other Defendants.
Thus, it is respectfully recommended that the Motion to Dismiss as to Hoffman Kennels be granted, and that all claims against it be dismissed with prejudice, as any amendment would be futile.
The court must allow amendment by the plaintiff in civil rights cases brought under § 1983 before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested, unless doing so would be "inequitable or futile." Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the district court must offer the opportunity to amend unless it would be inequitable or futile).
2. Defendant Gary Hoffman
As to the claims of illegal search and seizure, reckless investigation, equal protection under the Fourteenth Amendment, and intentional infliction of emotional distress against Defendant Hoffman, they are all barred by the statute of limitations, as discussed above.
Defendant Hoffman argues that, in his official capacity as a dog warden, he is entitled to absolute immunity under the Eleventh Amendment. The Court agrees that the remaining claims of malicious prosecution and conspiracy against Hoffman in his official capacity should be dismissed with prejudice, in keeping with the analysis of Eleventh Amendment immunity for the Commonwealth Defendants, supra.
Hoffman further argues that Plaintiff fails to state a claim for a malicious prosecution claim against him. It is well-settled that “[t]o prove malicious prosecution [under § 1983]... a plaintiff must show that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003); McCormack v. Livergood, 353 F.Supp.3d 357, 364 (M.D. Pa. 2018). Hoffman asserts that Plaintiff fails to state this claim because 1) Hoffman did not initiate the criminal proceeding; 2) there was probable cause to support those proceedings; and 3) those proceedings did not deprive Plaintiff of his liberty because Plaintiff was already incarcerated. ECF No. 39, p. 15.
The Court agrees with Hoffman that only Defendant Wroble initiated the criminal proceeding. Plaintiff's malicious prosecution claim also appears to be directed solely at Defendant Wroble. Under the section of his Complaint titled “Count V…Malicious Prosecution, ” Plaintiff alleges that Wroble “intentionally charged him with felonies, misdemeanors, and summaries for animal cruelty, dog fighting and related crimes without probable cause…” ECF No. 8, ¶ 75. The rest of this section names only Wroble as being responsible for the actions that constitute this claim. Thus, to the extent that Plaintiff may have intended to make this claim against any other Defendant, it is this Court's recommendation that they be dismissed with prejudice against the other Defendants in their official and individual capacities for failure to state a claim, as they are not the ones who initiated the criminal proceedings as part of the alleged malicious prosecution.
Next, Plaintiff did not sufficiently allege that the criminal proceeding lacked probable cause. Defendants note that Plaintiff alleges both that a warrantless search led to the confiscation of his dogs (ECF No. 8, ¶ 11) and that Defendants secured a search warrant that was “defective and infirm in several ways (Id. ¶ 12).” ECF No. 39, pp. 12-13. Defendants maintain that Plaintiff never explains why the search warrant was defective, and instead makes only unsupported conclusory statements. Id. p. 13.
The Third Circuit has stated:
While “[t]he probable-cause standard is incapable of precise definition or quantification, ” Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), all interpretations of probable cause require a belief of guilt that is reasonable, as opposed to certain, see Hill v. California, 401 U.S. 797, 804, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971) (“Sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment....”).
“Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Therefore, the evidentiary standard for probable cause is significantly lower than the standard which is required for conviction.Wright v. City of Philadelphia, 409 F.3d 595, 601-02 (3d Cir. 2005).
Even when taking Plaintiff's allegations as true and construing them liberally, the Court cannot find that Plaintiff has sufficiently alleged that there was a lack of probable cause for the search that led to his prosecution for animal cruelty. The Court agrees with Defendants that Plaintiff's allegations regarding the warrant are conclusory and do not rise to the level of plausibility. Plaintiff alleges that “the warrant relies on an Affidavit of Probable Cause that was fatally flawed in many respects, including but not limited to, its failure to set forth any facts whatsoever that would give rise to probable cause…” ECF No. 8, ¶ 12. This is simply stating “there was no probable cause” using more words. Given that Plaintiff alleges that there was a warrant, which means a neutral magistrate concluded that probable cause existed, Plaintiff has failed to establish this element of the claim of malicious prosecution. See United States v. Williams, 3 F.3d 69, 74 (3d Cir. 1993) (A warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search).
Plaintiff may be allowed to amend his Complaint and provide particulars about why there was no probable cause to the search, but another element at issue with Plaintiff's malicious prosecution claim will make amending this claim futile. Significantly, the facts show that Plaintiff did not lose his liberty as a consequence of the criminal proceedings. Plaintiff was already incarcerated in a federal facility, presumably for other charges or convictions, at the time his dogs were seized and he was charged with animal cruelty. His Complaint suggests that for a time he was moved to Fayette County Prison for the proceedings involving the animal cruelty charges. See ECF No. 8, ¶ 33. He also asserts that he “should be compensated for time served in the Fayette County Prison for the 20-day sentence which was vacated.” Id. ¶ 36. However, the allegations do not suggest that but for the proceedings involving the animal cruelty charges, he would be free, and that the sole reason he lost his liberty during this time was because of Wroble's actions in filing charges against him. The fact that he is still incarcerated at a federal prison supports this.
Courts in the Third Circuit have found that if a plaintiff was already incarcerated or would be for some other reason at the time of the alleged malicious prosecution, then that plaintiff has not met the element of being deprived of liberty as necessary to state a claim for malicious prosecution under § 1983. See Malcomb v. Dietz, 487 Fed.Appx. 683, 686 (3d Cir. 2012) (plaintiff did not suffer a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding when he was issued a traffic citation while incarcerated on other charges); see also Phillips v. Alsleben, No. CIV.A. 08-1388, 2011 WL 817166, at *10 (E.D. Pa. Mar. 7, 2011), aff'd, 448 Fed.Appx. 311 (3d Cir. 2011) (finding that plaintiff failed to establish elements of malicious prosecution, including suffering restrictions on his liberty when he would have been arrested anyway due to a detainer that had been placed against him by the Pennsylvania Board of Probation and Parole).
For these reasons, the Court respectfully recommends that the claim for malicious prosecution be dismissed with prejudice, as any amendment would be futile. Amendment will not change the fact that Plaintiff was already incarcerated at the time the charges for animal cruelty were filed against him, and he would thus not be able to establish all the elements required to state the claim. While the Commonwealth Defendants do not move to dismiss the malicious prosecution claim in their Brief in Support of their Motion to Dismiss, the Court recommends sua sponte dismissing this claim against those Defendants as well, in their individual capacities, since the insufficiency of the claim also applies to them.
Furthermore, Plaintiff's conspiracy claim depends on the sufficiency of his malicious prosecution claim. Conspiracy is not independently actionable. Kilbride Invs. Ltd. v. Cushman & Wakefield of Pennsylvania, Inc., 294 F.Supp.3d 369, 380 (E.D. Pa. 2018) (“Since liability for civil conspiracy depends on performance of some underlying tortious act, the conspiracy is not independently actionable; rather, it is a means for establishing the vicarious liability for the underlying tort.”). The allegations underlying Plaintiff's conspiracy claim are that Defendants conspired to maliciously prosecute him. Without being able to state a sufficient claim for malicious prosecution, Plaintiff cannot state a conspiracy claim. See Rose v. Bartle, 871 F.2d 331, 352 (3d Cir. 1989) (discussing how a cause of action for a §1983 conspiracy claim to prosecute maliciously cannot accrue before the malicious prosecution claim accrues). Therefore, the Court respectfully recommends that the conspiracy claim be dismissed with prejudice.
III.CONCLUSION
For these reasons, it is respectfully recommended that the Motions to Dismiss (ECF Nos. 22, 38) filed by Defendants Wroble, Spada, Wharry, Hoffman, and Hoffman Kennels be granted, and that all claims against the Defendants in their official and individual capacities be dismissed with prejudice. This includes the sua sponte dismissal of the malicious prosecution claim against the Commonwealth Defendants in their official and individual capacities.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.