Opinion
Civil Action 23-785
02-23-2024
JAMES GINO MARTINETTI, Plaintiff, v. HOLDINGS ACQUISITION COMPANY, L.P. trading and doing business as RIVERS CASINO; JAMES CAHILL; MATTHEW SALISBURY, Defendants.
David S. Cercone District Judge
REPORT AND RECOMMENDATION
Re: ECF No. 40
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff James Gino Martinetti (“Martinetti”) brings this action against his former employer Rivers Casino (“Casino”); James Cahill (“Cahill”), the Director of Security at Rivers Casino (collectively, the “Casino Defendants”); and Matthew Salisbury (“Salisbury”), a Trooper with the Pennsylvania State Police. Martinetti alleges that Defendants violated his rights under federal and state law through their pursuit of a criminal charge for the summary offense of harassment involving racial animus. ECF No. 33. Plaintiff alleges the underlying incident never occurred.
Presently before the Court is a Motion to Dismiss filed on behalf of the Casino Defendants, ECF No. 40. For the following reasons, it is respectfully recommended that the Motion to Dismiss be granted in part and denied in part.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
The facts below derive from Martinetti's Second Amended Complaint and are viewed in the light most favorable to him as required at this stage of the litigation. Morse v. Lower Merion Sch. Dist, 132 F.3d 902, 906 (3d Cir. 1997).
For 12 years leading up to January 18,2022, Martinetti was employed by the Casino as an evening shift “EVS Supervisor” in the Housekeeping Department. ECF No. 33 ¶ 9. In that capacity, he supervised EVS staff who maintained the cleanliness of the facility day-to-day. Id. Floyd Mills (“Mills”) was a Casino employee who worked under Martinetti's supervision. Mills is a Black male and Martinetti is a Caucasian male over 60 years old. Id., ¶¶ 10-13.
On January 14, 2022, Mills complained to Casino security and to Cahill that Martinetti called him a “Black N..and physically assaulted him while working on the floor of the Casino. Id. ¶¶ 18-19,21. During his initial report and throughout a subsequent meeting with Cahill, Mills was highly emotional, crying and speaking loudly, and at times was unintelligible. He added inconsistent details, including the location of the incident, the nature of the contact, and the time of the encounter. Id. ¶¶ 23-39, 51. Personnel present during the interview reported that Mills smelled of alcohol, but Mills denied that he had been drinking. He attributed the smell to cough drops or ointment he had applied to his knee. Id. ¶¶ 40-41. Despite longstanding Casino policy, Mills was not required to test for alcohol consumption. Id. ¶¶ 48-52.
Given the nature of the allegations, Casino management told Mills he would need to meet with Pennsylvania State Police, but also pointed out to Mills that there were inconsistencies in his story. Id. ¶¶ 42-43. Mills attributed the inconsistencies to a head injury that affected his memory. Mills also complained that a white female supervisor harassed him. Id. ¶¶ 44-45. Mills was told that after talking with State Police, he could go home and remain on administrative leave during the investigation of his complaint. Id. ¶ 47.
After the initial report, Casino personnel interviewed two employees and reviewed security video footage from the day Mills claimed the incident occurred. Coworkers failed to corroborate Mills' account. Two interactions between Mills and Martinetti were located on video. One interaction reflected a calm discussion with Martinetti adjusting the control knob on Mills' walkie talkie. A second interaction was at the end of the shift and again no agitation or unusual behavior was observed. Id. ¶¶ 54-60, 70, 71. Mills reported that a third incident occurred three weeks earlier at about the same location, though Casino officials never tried to locate video of this alleged third encounter. Id. ¶¶ 51-66. Further, Casino officials disregarded a positive performance evaluation completed by Martinetti three weeks earlier to assess Mills for permanent employment. Id. ¶¶ 6768.
Immediately after meeting with Mills, Cahill escorted him to the Pennsylvania State Police Gaming Substation, located next to Cahill's office. Id. ¶ 72. Martinetti believes that Cahill stayed with Mills throughout the interview conducted by Trooper Salisbury and was present when Salisbury prepared Mills' written statement. The short statement was quickly prepared and contained facts that were verifiably and materially false. Id. ¶¶ 73-76. Martinetti contends that given Mills' condition and inability to effectively communicate, Cahill provided the substance of the statement to Salisbury. Id. ¶¶ 77 - 84.
Following Mills' interview, Cahill and a Human Resource representative questioned Martinetti. Martinetti explained that the January 11, 2022 encounter occurred because Mills was having problems operating his walkie-talkie, which Martinetti addressed by turning the volume up. Id. ¶¶ 85-88. Martinetti repeatedly denied the use of any racial epithets, inappropriate language, or threats. Id. ¶ 95. He was asked about suspicions that Mills was inebriated at work and disclosed that another supervisor had commented to their manager and to Martinetti that Mills smelled of alcohol four days before the incident at issue. At that time, Martinetti defended Mills and stated that he did not smell any alcohol on Mills. Id. ¶¶ 90-92. Cahill explained to Martinetti that the allegations in Mills' statement were a “mishmash” of a series of events described by Mills, and that Martinetti was required to be interviewed by the State Police. Id. ¶¶ 97-97. Casino personnel told Martinetti that the Mills' account “was being taken extremely serious,” and that an investigation was being conducted. Id. ¶¶ 99-100.
Cahill and Human Resources representatives escorted Martinetti to the Pennsylvania State Police Gaming Substation at the Casino and remained present with Martinetti throughout the interview conducted by Salisbury and Trooper Houseman. Id. ¶¶ 101-02. During the interview, Trooper Housemen reviewed the available video and stated to Martinetti that there was nothing on the video to confirm any aspect of Mills' complaint. Id. ¶ 104. Martinetti explained his encounters and denied the statements attributed to him by Mills including alleged threats involving his father, who has been deceased for over ten years and a son Martinetti does not have. Salisbury told Martinetti “he had nothing to be concerned with and told him to leave.” Id. ¶¶ 104-05.
After the interview, Casino personnel told Martinetti he was suspended pending the investigation. Id. ¶ 107. On January 18, 2022, Martinetti was contacted by a Casino Human Resource representative and was told that “they” had “talked to other people” and as a result, his employment was being terminated. Id. ¶ 112. Martinetti believes that “the other people” included two other Casino supervisors who reported that in the past, Martinetti had used inappropriate language directed to persons other than Mills. Id. ¶ 116. Martinetti also contends that his immediate supervisor failed to report her knowledge of the apparent falsity of most of the details of Mills' story, including Martinetti's family history that undercut threats Mills alleged were lodged by Martinetti. She also failed to report Martinetti's positive performance evaluation for Mills as well as his defense of Mills when another employee reported concerns related to Mills' consumption of alcohol. Id. ¶¶ 134-39.
Salisbury performed no additional investigation, but filed a report on January 19, 2022, claiming falsely that video footage revealed an “altercation” between Mills and Martinetti. That same day, Salisbury prepared a Non-Traffic Citation/Summons charging Martinetti with the summary offense of harassment in violation of 18 Pa. C.S.A. § 2709(a)(3), involving Martinetti's alleged use of a racial slur. Id. ¶ 120. The charge was filed with the Pittsburgh Municipal Court on January 20, 2022. Id.
Martinetti alleges that based on the video evidence and the obvious discrepancies and inconsistencies in Mills' report, all of the Defendants knew the substance of the charge was false when it was filed. Id. ¶ 121. In preparing the charge, Salisbury relied on Cahill's narrative summary and Cahill's later report to him of the results of the Casino's investigation and the Casino's decision to fire Martinetti. Id. ¶¶ 125-127. Martinetti contends that despite Salisbury's independent conclusion that Martinetti “had nothing to worry about,” Cahill and other Casino personnel intervened and “played a key role” in Salisbury's decision to file a criminal charge. Id. ¶¶ 128129. Martinetti asserts that the Casino's efforts in this regard sought to improve its image with respect to the treatment of minorities. Id. ¶ 126. The result was a joint effort to charge Martinetti for a crime they knew he had not committed. Id. ¶ 130.
A few weeks later, Mills was discovered in a Casino bathroom, apparently intoxicated and behaving in an aggressive fashion. Id. ¶ 144. He struggled with motor skills but denied consuming alcohol. When asked for more information, Mills alleged that a young white coworker called him a “black n...” five days earlier. Id. ¶¶ 145-48. Mills also reported (as he had as to Martinetti) that the employee threatened to kill him. State Police were contacted, and Mills repeated his allegations. Again, surveillance video failed to corroborate his claims and the accused employee denied Mills' allegations. Id. ¶¶ 149-54. Mills was also required to undergo alcohol testing conducted by the State Police. Based on the positive test results, Mills was terminated. The white employee was not disciplined by the Casino and Salisbury did not prepare a criminal complaint against him. Id. ¶¶ 155-57.
Despite nearly identical accusations and the lack of affirmative evidence, Salisbury and Cahill proceeded with prosecuting Martinetti. Id. ¶¶ 160-62. A summary trial was conducted before the Pittsburgh Municipal Court on March 15, 2022. Salisbury presented the case and “improperly steer[ed] Mill's testimony to suggest that the events in question on January 11, 2022 had happened ‘off camera' ....” Id. ¶ 163. Based on apparent inconsistencies in Mills' testimony and the available video evidence subpoenaed by Martinetti, the summary offense charge was dismissed with prejudice. Id. ¶ 164.
In the interim, the charge against Martinetti was the subject of a State Police news release and included the accusation that Martinetti used a racial slur. Id. ¶ 169. Both Salisbury and Cahill knew, before publication of the press release, that the charge was false and defamatory, but proceeded with the prosecution to show that the Casino was “politically correct.” Id. ¶¶ 170-73. In addition, the basis of Martinetti's termination is alleged to have provided cover for the Casino to terminate an older supervisor with whom there was longstanding friction resulting from Martinetti's criticism of management and the work environment. Id. ¶ 179-82.
As a result of Defendants' actions, Martinetti alleges that he has suffered damage to his reputation, well as economic loss and emotional harm. Id. ¶ 200.
Martinetti filed this action in state court on June 27, 2022, in the Court of Common Pleas of Allegheny County, Pennsylvania. ECF No. 2. He filed a Second Amended Complaint on April 21, 2023, and, for the first time, asserted federal claims. Id. The Casino filed a timely Notice of Removal within 30 days of service of the Second Amended Complaint.
In the Second Amended Complaint, Plaintiff asserts the following claims: (1) Equal Protection Violation through “Class of One Discrimination” Under 42 U.S.C. § 1983 (Count I); (2) Section 1983 Equal Protection Violation through “Selective Enforcement” Under 42 U.S.C. § 1983 (Count II); (3) Malicious Prosecution under 42 U.S.C. § 1983 (Count III); (4) Depriving Persons of Rights or Privileges under 42 U.S.C. § 1985(c) (Count IV); (5) Malicious Prosecution under Pennsylvania common law (Count V); and (6) Defamation (Count VI).
Salisbury filed an Answer to the Second Amended Complaint. ECF No. 39. The Casino and Cahill filed the pending Motion to Dismiss for failure to state a claim. ECF No. 40. Martinetti has filed a Brief in Opposition to the Motion to Dismiss, ECF No. 45, and the Casino and Cahill have filed a Reply, ECF No. 49.
The Motion to Dismiss is ripe for consideration.
B. STANDARD OF REVIEW
A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.” “[D]etailed pleading is not generally required.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). Rather, the rules require “only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Id. (quoting Bell Atl. Corp, v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face” by providing facts which “permit the court to infer more than the mere possibility of misconduct....” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In assessing the sufficiency of a complaint, the court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Ret. Sys, v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse, 132 F.3d at 906). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555. Thus, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231, 233-234 (3d Cir. 2008) (finding that, under Twombly, “labels and conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice. The complaint therefore “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s of his claim].”).
C. DISCUSSION
1. Section 1983 Claims - State Actor
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); Yoast v. Pottstown Borough, 437 F.Supp.3d 403, 420 (E.D. Pa. 2020). The Casino Defendants seek dismissal of Martinetti's Section 1983 claims against Cahill because the factual allegations in the Second Amended Complaint are not enough to establish that Cahill is a state actor. ECF No. 41 at 4-5. At this stage of litigation, the Court finds that Martinetti states a plausible claim that Cahill acted jointly with Trooper Salisbury and thus may be liable as a state actor.
Whether a defendant is acting under the color of state law depends on whether there is “such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Leshko v. Servis, 423 F.3d 337, 347 (3d Cir. 2005) (internal quotation marks omitted). In making this assessment,“[t]he Third Circuit has found three ways in which a private entity may be held to be a state actor, such that it can be liable under § 1983: ‘(1) whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state; (2) whether the private party has acted with the help of or in concert with state officials; and (3) whether the [s]tate has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.'” Damico v. Harrah's Philadelphia Casino & Racetrack, 674 Fed.Appx. 198, 203 (3d Cir. 2016) (quoting Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009)).
Martinetti relies on the concerted or joint action test set out in Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) and applied in Cruz v. Donnelly, 727 F.2d 79 (3d Cir. 1984) (abrogated on other grounds by Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)), Damico, supra, and Luck v. Mount Airy No. 1 LLC, 901 F.Supp.2d 547 (2012). ECF No. 45 at 2. In each case, ‘“the deciding inquiry was whether the state official surrendered the exercise of its official judgment to a private party, either pursuant to an agreement or statute, thus turning the private party into a state actor.'” Luck, 901 F.Supp.2d at 562 (quoting Pughv. Downs, 641 F.Supp.2d 468, 475 (E.D. Pa. 2009)).
In Cruz, the United States Court of Appeals for the Third Circuit held that summary judgment was properly entered in favor of a retail food store on the plaintiffs Section 1983 claims despite allegations that two police officers, at the request of a store employee, stripped and searched the plaintiff for stolen goods. Cruz, 727 F.2d at 80-81. This conduct was not sufficient to conclude that the store and its employees acted under color of state law because there was no evidence that (1) the police had a pre-arranged plan with the store; and (2) under the plan, the police will arrest anyone identified as a shoplifter without independently evaluating the presence of probable cause.” Id. at 81.
In the case before us, the complaint and affidavits do not satisfy the above criteria for § 1983 liability. The only allegation that colorably suggests an “understanding” or a “plan” is the claim that [the store employee] “ordered and commanded” the police officers to perform a strip search. Since police normally do not take orders from private citizens, this allegation could be construed to assert the existence of a plan whereby private store employees were substituted as commanding officers for policemen investigating shoplifting incidents. Such a construction, however, is not justified by the complaint or affidavits when they are read as a whole. Nowhere does Cruz assert that the police would not strip seach him as part of a routine shoplifting investigation, with or without [the store employee's] “order and command.” Lacking such an assertion, Cruz' allegations depict only a police investigation that happens to follow the course suggested by comments from a complainant.Id.
Similarly, in Damico, supra, summary judgment was affirmed in favor of the casino operator because there was no evidence that the casino “was effectively acting as the State” in detaining and then identifying the plaintiff to police as a counterfeiter. Damico, 674 Fed.Appx. at 203. The criminal charges were ultimately dropped but the plaintiff filed suit and alleged Section 1983 claims against the casino for its participation in his arrest. As in Cruz, the plaintiff failed to meet his burden to present evidence that the casino forced police to arrest or detain the plaintiff, or that it “behaved in any way other than that of an ordinary business employing its own security guards.” Id. “Because there was no plan providing that the police would arrest anyone identified as a counterfeiter by [the casino], [it] cannot be held to be a state actor in this context.” Id.
In contrast, the district court in Luck found that at the motion to dismiss stage, plaintiffs stated “a plausible application of the joint action test” based on allegations that the defendant casino directed state troopers to arrest plaintiffs and issue citations for criminal trespass. Further, in doing so “[p]laintiffs argue that the troopers did not conduct an independent investigation and made the arrest based on the casino security guards assertions. Plaintiffs allege [the troopers] lacked probable cause to arrest plaintiffs.” Luck, 901 F.Supp.2d at 563.
Martinetti contends Luck applies to preclude dismissal at this stage of the litigation because he has alleged sufficient facts to infer that Cahill is a state actor. ECF No. 45 at 11. First, he alleges that the working relationship between the Cahill and PSP gives rise to an inference that the PSP has a history of working with the Cahill to file criminal charges. To that end, Martinetti alleges facts related to the location of a PSP office next to Cahill's office and the high volume of criminal charges filed through the PSP's imbedded office at the Casino. Second, Martinetti alleges that Cahill required Mills to file a report with the Pennsylvania State Police and then dictated the substance of Mills' victim statement to Trooper Salisbury, who adopted it verbatim. Third, Salisbury failed to conduct an independent investigation of Mills' complaint. Fourth, Salisbury filed the criminal complaint only after learning from Cahill that Martinetti had been fired. Finally, Martinetti alleges that Salisbury filed criminal charges despite his stated conclusion that Martinetti had nothing to worry about. ECF No. 45 at 8-9 (citing ECF No. 33 ¶¶ 48-53, 109-111).
Upon review, the Court agrees that at this early stage of the litigation, Martinetti's allegations are sufficient, though barely so, to state a plausible Section 1983 claim against Cahill. Cruz and Damico that were decided in defendants' favor at the motion for summary judgment stage after discovery failed to adduce evidence to support a finding of a pre-arranged plan for police to arrest anyone identified by private party defendant. Here, at the motion to dismiss stage, the Court must accept all factual allegations in the Second Amended Complaint as true and thus is compelled to find that Martinetti states a plausible claim that Salisbury had a prearranged plan with Cahill to substitute his independent judgment with that of the Cahill's. Accordingly, it is recommended that the Court deny the Motion to Dismiss on the grounds that Cahill did not act under color of state law.
See also Cahill ex re. L.C. v. Live Nation, 512 Fed.Appx. 227, 230-31 (3d Cir. 2013) (affirming summary judgment for private entity when the plaintiff failed to present evidence that police officers substituted their own independent judgment with that of the defendant's).
2. Qualified Immunity
The Casino Defendants next assert that if Cahill is a state actor, he is protected by qualified immunity. Upon review, it is recommended that the Motion to Dismiss be denied on this basis because private parties are not entitled to immunity from Section 1983 suits.
While “[o]n its face § 1983 admits no immunities,” the Supreme Court has “consistently recognized that substantive doctrines of privilege and immunity may limit the relief available.” Tower v. Glover, 467 U.S. 914, 920 (1984). Most notably, government officials are entitled to immunity from § 1983 liability where the “tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that Congress would have specifically so provided had it wished to abolish the doctrine.” Owen v. City of Independence, 445 U.S. 622, 637 (1980) (internal quotation omitted). In Wyatt v. Cole, the Court refused to extend § 1983 immunity to private parties, finding the rationales supporting qualified immunity for government officials did not apply to private parties. 504 U.S. 158,168 (1992). But the Court differentiated defenses to suit from immunity from suit. Id. at 166. Because “principles of equality and fairness may suggest” that “private citizens who rely unsuspectingly on state laws they ... may have no reason to believe are invalid should have some protection from liability,” the Court “[did] not foreclose the possibility” that private parties “could be entitled to an affirmative defense based on good faith and/or probable cause.” Id. at 169. Instead, the Court left open the question of a good faith defense “for another day.” Id.
* * *
Accordingly, we join a growing list of our sister circuits in recognizing a good faith defense for § 1983 private defendants who relied on then-controlling Supreme
Court precedent and then-existing state law. See Lee v. Ohio Educ. Ass'n, 951 F.3d 386, 390-91 (6th Cir. 2020) (“Since Wyatt, a consensus has emerged among the lower courts that while a private party acting under color of state law does not enjoy qualified immunity from suit, it is entitled to raise a good-faith defense to liability under section 1983.).Schaszberger v. Am. Fed'n of State Cnty. & Mun. Emps. Council 13, No. 21-2172, 2022 WL 2826438, at *4 (3d Cir. July 20, 2022), cert, denied, 143 S.Ct. 428, 214 L.Ed.2d 236 (2022). Thus, qualified immunity is unavailable to Cahill. He may raise a good faith defense based on probable cause in an answer to the Second Amended Complaint and address the issue in a motion for summary judgment upon the development of an evidentiary record.
3. Equal Protection - Class of One Discrimination and Selective Enforcement (Counts I and II)
Martinetti sets forth an equal protection claim against Salisbury and Cahill pursuant to two theories of liability. Count I alleges a “class of one discrimination” equal protection claim. ECF No. 33 at 54. Count II alleges selective enforcement. Id. at 56. Both claims arise out of the differences in Defendants' treatment of Mills' complaint against a second employee for alleged racist harassment. Id. Martinetti asserts that Mills' complaint against him should have been treated the same and the failure to do so is evidence of a conspiracy to engage in “class of one” discrimination and to selectively enforce state law.
A class-of-one claim that does not involve discrimination based on a protected characteristic has three elements:
(1) differential treatment from those similarly situated;
(2) done intentionally; and
(3) without rational basis for the difference.Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). Persons are “similarly situated” for equal protection purposes when they are alike “in all relevant aspects.” Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). A class-of-one claim is sufficiently pleaded when a complaint contains specific allegations that the plaintiff was treated differently and that there was no rational basis for the difference in treatment. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 244 (3d Cir. 2008).
Phillips was decided prior to the Supreme Court's decision in Iqbal, which imposes tighter pleading standards. As explained infra, Martinetti satisfies Iqbal.
To state an equal protection selective enforcement claim, Martinetti must allege: “(1) that he was treated differently from other similarly situated individuals; and (2) that this selective treatment was based on an unjustifiable standard, such as race, religion, some other arbitrary factor or to prevent the exercise of a fundamental right.” Kams v. Shanahan, 879 F.3d 504, 520-21 (3d Cir. 2018); PG Pub. Co. v. Aichele, 705 F.3d 91, 115 (3d Cir. 2013). As with class-of-one claims, parties are “similarly situated” for when “they are alike in all relevant aspects.” Startzell, 533 F.3d at 203.
The Casino Defendants move to dismiss both equal protection claims because, unlike the alleged comparator employee, the decision to charge and terminate Martinetti was based on corroborating statements by Casino employees that supported the tenor of Mills' claims against him. ECF No. 41 at 7-9. Thus, the two employees are not similarly situated and there was a rational basis for the difference in treatment. The Casino Defendants also contend that Martinetti fails to allege that any difference in treatment was intentional or reckless
Here, in line with the requirements of Iqbal, Martinetti identifies a comparator as well as the basis for his assertion that although similarly situated, he was treated differently on an arbitrary and reckless basis. Martinetti alleges that video evidence failed to corroborate Mills' allegations of racist harassment in both incidents, Mills was inebriated at the time he lodged both accusations, and, despite the oddly identical nature and content of the allegations, only Martinetti was prosecuted and terminated from his position. ECF No. 33 ¶¶ 144-58. Martinetti may “face[] a significant hurdle in finding evidence to prove [his] allegations of selective enforcement and unequal treatment, [but] such concerns should not defeat [his] claim at the pleading stage.” Phillips, 515 F.3d at 245 (quoting DeMuria, 328 F.3d at 707). Accordingly, it is recommended that the Court deny the Motion to Dismiss Martinetti's class-of-one equal and selection enforcement equal protection claims.
4. Malicious Prosecution - Section 1983 (Count III)
Martinetti also pursues a Section 1983 malicious prosecution against Cahill, in his capacity as a state actor. A malicious prosecution claim is ordinarily alleged under the Fourth Amendment and requires the plaintiff to show: (1) the defendant initiated a criminal proceeding; (2) without probable cause; (3) the criminal proceeding ended in his favor; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Est. of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). Martinetti concedes he cannot pursue a Fourth Amendment claim for malicious prosecution because he was not subject to seizure. ECF No. 33 at 59 nN. Unable to state a Fourth Amendment claim, Martinetti asserts his malicious prosecution claim under the Fourteenth Amendment. ECF No. 33 at 58-61.
The Casino Defendants argue that the Fourteenth Amendment does not afford relief for malicious prosecution and thus dismissal of Martinetti's claim is warranted. ECF No. 41 at 10-12. Alternatively, the Casino Defendants contend that Martinetti does not allege facts sufficient to state a claim for malicious prosecution by Cahill, given that the harassment charge was filed by Salisbury on his own accord and supported by probable cause. Id.
Martinetti opposes the Motion to Dismiss on each basis. ECF No. 45 at 17-19. First, “the Third Circuit has not explicitly answered the question of whether there is a right to be free from malicious prosecution under the Fourteenth Amendment.” Hicks v. City of Philadelphia, No. 22977, 2023 WL 528713, at *7 (E.D. Pa. Aug. 16, 2023).
The confusion traces back at least to the Supreme Court's decision in Albright v. Oliver, 510 U.S. 266, 275 (1994), which held there is no right to be free from malicious prosecution under the substantive due process clause of the Fourteenth Amendment. However, the petitioner in Albright did not bring a procedural due process claim under the Fourteenth Amendment. Id. at 271. Four years later, the Third Circuit seemed to imply that a malicious prosecution claim may be brought only under the Fourth Amendment. Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998) (stating that “Albright implies that prosecution without probable cause is not, in and of itself, a constitutional tort” and instead “the constitutional violation is the deprivation of liberty accompanying prosecution”). The following month, the Third Circuit explained that “we do not read Albright to hold that a malicious prosecution claim can only be based in a Fourth Amendment violation” and specifically that a malicious prosecution claim may include conduct that violates the “procedural due process clause.” Torres [v. McLaughlin, 163 F.3d 169, 173 (3d Cir. 1998)]; see also Washington v. Hanshaw, 552 F. App'x. 169, 174 n.3 (3d Cir. 2014) (“Our cases interpreting Albright have suggested that § 1983 malicious prosecution claims may be predicated on constitutional provisions other than the Fourth Amendment, such as procedural due process.”).
The Third Circuit's observations stand to reason. The Fourteenth Amendment prohibits states from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. Due process is “flexible and calls for such procedural protections as the particular situation demands.” Morrisey v. Brewer, 408 U.S. 471, 481 (1972). It is difficult to understand how process can be due when that process comprises malicious prosecution. See Allen v. New Jersey State Police, 974 F.3d 497, 502 (3d Cir. 2020) (explaining that malicious prosecution protects the rights of individuals to be free from prosecution without probable cause); see also Wallace v. Kato, 549 U.S. 384, 390 (2007) (malicious prosecution “remedies detention accompanied, not by absence of legal process, but by wrongful institution of legal process”).Id. Thus, as in Hicks and in Crosland v. City of Philadelphia, No. 22-2416, 2023 WL 3898855 (E.D. Pa. June 8,2023), it cannot be said that the law does not permit recovery under the Fourteenth Amendment for knowingly and intentionally pursuing criminal charges that lack probable cause.
Second, the facts alleged in the Second Amended Complaint sufficiently allege that Martinetti's criminal charges resulted from Cahill's false narrative of the facts and his prompting Salisbury to commence Martinetti's prosecution. Id. Martinetti alleges facts that infer a plausible claim that Cahill pursued Martinetti's prosecution despite the known absence of probable cause to improve the image of the Casino as a non-racist environment. Accordingly, the elements of a potential Fourteenth Amendment malicious prosecution claim appear to be stated and it is I
recommended that the Motion to Dismiss Martinetti's Fourteenth Amendment claim be denied.
5. Section 1985 (Count IV)
Martinetti alleges a conspiracy claim against Cahill and Salisbury under 42 U.S.C. § 1985(3) for facilitating the filing and pursuit of a false criminal charge against Martinetti after being informed of facts establishing the lack of probable cause. ECF No. 33 at 61-63. To state a claim under Section 1985(3), a plaintiff must allege:
Plaintiff alleges in error that his claim arises under 42 U.S.C. § 1985(c).
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.Davis v. Wigen, 82 F.4th 204, 214 (3d Cir. 2023) (quoting United Bhd. Of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v, Scott, 463 U.S. 825, 828-29 (1983)). “To allege that the defendant deprived a class of persons of equal protection of the laws, the plaintiff must allege ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'” Id. (quoting Griffin v. Breckenridge 403 U.S. 88, 102 (1971)). The Casino Defendants argue that Martinetti fails to allege a conspiracy sufficient to state a claim under Section 1985(3). ECF No. 41 at 12-13. Upon review, the Court agrees.
Martinetti asserts that he was treated differently based on his age, 60, and his race, Caucasian. ECF No. 33 ¶ 230. However, the Second Amended Complaint alleges that despite receiving the same complaint from Mills about racist harassment directed at him from a younger white man, Defendants did not file criminal charges against the younger white male. Id. ¶¶ 148151, 156-57. Thus, any alleged discrimination was not based on Martinetti's race. To the extent that Martinetti infers his right to equal protection was violated because of his age, “[n] either the Supreme Court nor the Third Circuit has held that conspiracy claims pursuant to Section 1985(3) may be brought based on the plaintiff's age, but several district courts in this circuit, including one court in this district, have held that age is not a proper basis for a conspiracy claim under Section 1985(3).” Williamson v. Pennsylvania Dep't of Corr., No. 1:22-CV-01965, 2024 WL 345506, at *6 (M.D. Pa. Jan. 30, 2024) (citing Bolus v. Pa. Off, of Att'y Gen., No. 3:13-cv-01460, 2014 WL 131635, at *4-5 (M.D. Pa. Jan. 13, 2014); McCleester v. Mackel, No. 06-cv-00120, 2008 WL 821531, at *30-31 (W.D. Pa. Mar. 27, 2008); Platt v. Burroughs Corp., 424 F.Supp. 1329, 1340- 41 (E.D. Pa. 1976)).
As in Williamson, the Court need not decide whether age is a protected class under Section 1985(3) because Martinetti has not alleged any facts to support a claim that Salisbury conspired with Cahill to initiate criminal charges against older Casino employees because of their age. See, e.g., Landis v. Ebbert, No. 1:21-CV-244, 2022 WL 178589, at *3 (M.D. Pa. Jan. 19, 2022), aff'd, No. 22-1265,2022 WL 17496012 (3d Cir. Dec. 8,2022), cert, denied, 143 S.Ct. 2673,216 L.Ed.2d 1245 (2023) (citing Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972)) (“[a] conspiracy claim based upon § 1985(3) requires a clear showing of invidious, purposeful and intentional discrimination between classes or individuals.”); Davis, 82 F.4th at 214-15 (“[t]he Supreme Court later elaborated ... in Ashcroft v. Iqbal, holding that to plausibly allege discrimination ‘because of a protected characteristic, the plaintiff ‘must plead sufficient factual matter' to show that the defendants took the challenged action ‘not for a neutral ... reason but for the purpose of discriminating on account' of the protected characteristic.”). With no factual support to plausibly infer that a conspiracy based on age was the motivating factor, Martinetti's Section 1985(3) claim fails.
6. Malicious Prosecution - State Law (Count V)
Martinetti brings a state law claim for malicious prosecution against the Casino Defendants. ECF No. 33 at 64-5. Under Pennsylvania law, a claim based on the common-law tort of malicious prosecution is identical to its federal counterpart except that it does not require a plaintiff to allege that the unlawful act deprived him/her of his/her liberty. See Henderson v. City of Philadelphia, 853 F.Supp.2d 514, 518 (E.D. Pa. 2012) (citing Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791 (3d Cir. 2000)). Private parties may be liable for malicious prosecution if they are responsible for the institution of criminal proceedings. Bradley v. Gen. Accident Ins. Co., 778 A.2d 707, 711 (Pa. Super. Ct. 2001).
To determine a defendant's responsibility for the charges, Pennsylvania courts follow Section 653, comment g, of the Restatement (Second) of Torts.
A private person who gives to a public official information of another's supposed criminal misconduct, of which the official is ignorant, obviously causes the institution of such subsequent proceedings as the official may begin on his own initiative, but giving the information or even making an accusation of criminal misconduct does not constitute a procurement of the proceedings initiated by the officer if it is left entirely to his discretion to initiate the proceedings or not....
If, however, the information is known by the giver to be false, an intelligent exercise of the officer's discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information. In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by his direction, request or pressure of any kind, was the determining factor in the
official's decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false.Bradley, 778 A.2dat711.
The Casino Defendants move to dismiss Martinetti's claim because he “failed to show [they] ‘initiated' the criminal proceeding,” and because Salisbury had probable cause to charge him. ECF No. 41. Upon review, it is recommended that the Motion to Dismiss Martinetti's state law malicious prosecution claim be denied.
The Second Amended Complaint alleges facts that support a plausible inference that Cahill prompted the encounter with Salisbury and provided all of the information relied on to charge Martinetti, despite knowing that Mills' underlying complaint was false. Given these allegations, it would be premature to determine whether probable cause existed when the charge against Martinetti was filed. Watson v. Witmer, 183 F.Supp.3d 607, 613 (M.D. Pa. 2016) (where complaint alleges that police officer knew at the time of the arrest that probable cause was wanting because of physical differences between plaintiff and perpetrator, a determination of probable cause is premature at motion to dismiss stage). Thus, it is recommended that the Court deny the motion to dismiss Martinetti's state law malicious prosecution claim.
7. Defamation (Count VI)
Martinetti's final claim is against the Casino for defamation arising out of the republication of the criminal charge against him on a Casino-specific police blotter and local news outlets. Under Pennsylvania law, a plaintiff must allege facts sufficient to show: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged occasion. 42 Pa. Cons. Stat. Ann. § 8343(a). “A statement is defamatory if ‘it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'” Graboff v. Colleran Firm, 744 F.3d 128, 136 (3d Cir. 2014) (quoting Tucker v. Fischbein, 237 F.3d 275, 282 (3d Cir. 2001)). “But the statement must do more than merely embarrass or annoy the plaintiff; it must provoke ‘the kind of harm which has grievously fractured [one's] standing in the community of respectable society.'” Id. (quoting Tucker v. Phila. Daily News, 848 A.2dll3, 124 (Pa. 2004)).
Here, the Casino seeks to dismiss Martinetti's claim because it did not “publish” the defamatory content of the criminal charge. ECF No. 41. But as Martinetti argues, “[i]n addition to direct publication, publication can also be procured, which requires the plaintiff to show that the ‘third party-defendant directed or participated in the publication of the defamatory publication by another ... [and] requires, at very least, evidence of some affirmative action on the part of the defendant.'” Martin v. Finley, 349 F.Supp.3d 391, 424-25 (M.D. Pa. 2018), on reconsideration, No. 3:15-CV-1620, 2019 WL 1473421 (M.D. Pa. Apr. 3, 2019) (quoting Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038, 1043 (1996)); see also Ralston v. Garabedian, 623 F.Supp.3d 544, 612 (E.D. Pa. 2022) (“[the defendant] is also liable for harms caused by ‘republication' of the falsehood if ‘the recipient was privileged to repeat it, or if the repetition was authorized or intended by the original defamer, or if the repetition was reasonably to be expected.'”).
Upon review, the Second Amended Complaint alleges that the Casino knew that the criminal charge directed or initiated by Cahill through his narrative report to Salisbury would be the subject of a State Police news release published in the local newspapers, and thereby permit the Casino to portray itself to the public and its minority client base as a defender against racial inequity. ECF No. 33 ¶¶ 165, 169,170, 173,174,181. At the pleading stage, these allegations are sufficient, though barely so, to state a claim for defamation based on the Casino's procurement of the publication of Martinetti's criminal charge. Thus, it is recommended that the Court deny the Motion to Dismiss Martinetti's state law claim for defamation.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss, ECF No. 40, be granted as to Martinetti's claim under 42 U.S.C. § 1985(3), but denied as to all remaining claims.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193n. 7 (3d Cir. 2011). Any party opposing objections may respond to the objections within 14 days in accordance with Local Civil Rule 72.D.2.