Opinion
Civil Action 1:20-CV-1549
07-27-2021
LLOYD J. BRIGMAN, Plaintiff v. ADAM SCHAUM, et al., Defendants
REPORT & RECOMMENDATION DEFENDANT SCHAUM'S MOTION TO DISMISS (DOC. 23)
William I. Arbuckle U.S. Magistrate Judge.
On August 28, 2020, Lloyd James Brigman (“Plaintiff”) initiated the above-captioned civil rights action arising out of an October 2019 arrest in York County, Pennsylvania for failing to respond to two traffic citations. In his Complaint, Plaintiff asserts claims against the following seven Defendants:
(1) Adam Schaum (arresting officer);
(2) Magisterial District Judge Robert A. Eckenrode;
(3) Constable Shannon;
(4) Common Pleas Judge Amber A. Kraft;
(5) David W. Sunday, Jr. (York County District Attorney);
(6) Kyle Thomas (York County Assistant District Attorney); and
(7) Daniel Byrnes.(Doc. 1).
On April 15, 2021, Defendants Shannon and Byrnes were terminated from the case. (Doc. 35).
Presently pending before this Court is a Motion to Dismiss filed by Defendant Adam Schaum. (Doc. 23). On March 5, 2021, Defendant Schaum filed a brief in support. (Doc. 24). On May 5, 2021, Plaintiff filed a brief in opposition. (Doc. 37). On May 18, 2021, Defendant Schaum filed a reply. (Doc. 38).
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. After reviewing Plaintiff's Complaint (Doc. 1), and the arguments raised in the parties' briefs, I RECOMMEND that Defendant Schaum's Motion to Dismiss (Doc. 23) be GRANTED IN PART and DENIED IN PART as follows:
(1) Plaintiff's Fourth Amendment False Arrest and False Imprisonment claims against Defendant Schaum be allowed to proceed; and
(2) All other claims against Defendant Schaum be DISMISSED.
I. BACKGROUND & PROCEDURAL HISTORY
On October 7, 2019, Plaintiff was charged with two summary traffic offenses: failure to pass in a lane not adjacent to that of an emergency response area in violation of 75 Pa.C.S. § 3327; and driving while his license was suspended or revoked in violation of 75 Pa.C.S. § 1543. See Commonwealth v. Brigman, No. MJ-19311-TR-0002692-2019 (Magis. Ct.); Commonwealth v. Brigman, No. MJ-19311-TR-0002691-2019 (Magis. Ct.).As to Defendant Schaum, Plaintiff alleges:
Ruling on Motions to dismiss, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). Therefore, I take judicial notice of the state court criminal dockets associated with this civil case.
On October 7th in the year of our lord 2019 at 10:43 pm while stopped for fuel at the Rutters #57 located in the United States of America, Commonwealth of Pennsylvania, Court of York, Springesttsbury Township, 1450 Mount Zion road, I was approached by a man, Adam Schaum in the capacity of a law enforcement office badge # 2615, officer identification # 39028 from the Commonwealth of Pennsylvania, Hellam Township police department, under his oath of office. Adam Schaum approached me in a hostile manner yelling with his hand on his weapon. Adam Schaum was in dishonor. After asking Adam Schaum to identify himself many times, he finally identified himself as Officer Schaum. Seconds after he identified himself I was assaulted on video by Adam Schaum and three other, to this day, unidentified men in the capacity of law enforcement officers, from the Commonwealth of Pennsylvania, Springettsbury township, under their oath of office. During the assault Adam Schaum and gang bound me in chains and looted my belongings.
In violation of Article 1 section 1 of the Constitution, for the Republic of the Commonwealth of Pennsylvania and ARTICLE XIV.
SECTION 1, Of the constitution of the United States of America.
1. My liberty.
In violation of Article 1 section 8 of the Constitution, for the Republic of the Commonwealth of Pennsylvania and ARTICLE [IV.] of the Constitution of the United State of America. Bill of Rights.
2. My person.
3. My things.
At this time I informed Adam Schaum that anything I do from this time forward, I do under duress. I specifically informed Adam Schaum that I do not give you permission to do anything to me and to release me. Adam Schaum did not release me. Adam Schaum and his gang then demanded me to identify myself, because they Could not find a picture identification in my looted belongings. I told them if they would release me I would show them where to procure some form of identification. Adam Schaum and his gang still did not release me. Under duress, I told Adam Schaum and his gang the where about of some identification. I directed Adam Schaum and his gang to the glove compartment of my conveyance. There Adam Schaum and his gang were served with Notarized Affidavit of reservation of rights UCC 1-308/1-207 (see exhibit A) and a certified copy of my certification of Birth from the Commonwealth of Pennsylvania, Department of Health. (see exhibit B) At this time I informed Adam Schaum and his gang that I was a citizen of the Republic of the Commonwealth of Pennsylvania. I was and am, always in my individual capacity. At this time one of Adam Schaum's gang members labeled me as a sovereign citizen. (on April 13th in the year of our lord 2010 the Federal Bureau of Investigation labeled, sovereign citizens as “Domestic terrorist and anti-government extremist”)
In violation of Article 1 section 1 of the Constitution, for the Republic of the Commonwealth of Pennsylvania and the Constitution of the United States of America, ARTICLE XIV. Section 1.
4. My reputation.
After serving Adam Schaum and his gang with the Notarized Affidavit of reservation of rights UCC 1-308/1-207, (see exhibit A) Adam Schaum nor his gang did not abate or question the contract, they remained silent, therefore they gave their implied consent, and a contract was formed.
Adam Schaum and his gang then forced me into their conveyance and I was taken to the jail, located in the Commonwealth of Pennsylvania, County of York, City of York, 45 north George street, at the York
county court house. On arrival Adam Schaum told the no less than five Sheriffs who were at the scene that I was a sovereign citizen. This is collusion and fraud.
In violation of Article 1 section 1 of the Constitution, for the Republic of the Commonwealth of Pennsylvania and the Constitution of the United States of America. ARTICLE XIV, SECTION 1.
5. My reputation.
I did not speak another word to any officials, until my release at approximately 10:30am on October 8th in the year of our lord 2019. Adam Schaum and his gang, employed by the Hellam township police Department and possibly other county and State departments, whom are not laymen, are under contract for the 11 hour and 30 minutes I was unlawfully detained. (see attached copy of Notarized Affidavit of reservation of rights UCC 1-308/1-207) (see exhibit A) Totaling $11,500,000.00 dollars in gold and silver. Which I am entitled to as a citizen of the Republic of the Commonwealth of Pennsylvania.
Officer Adam Schaum and his gang who claims to be officers of the law and have an oath of office, and are not laymen, willingly and knowingly with intent, “immediate breach” (Black's Law Dictionary, ninth edition.) oath of office and are guilty of no less than five acts of treason. In addition to those acts of treason, Adam Schaum is guilty of issuing two citations under the UCC common law where there is no corpus delicti and no proof of commerce. “ The exchange of goods and services, esp. on a large scale involving transportation between cities, states, and nations. “ (Black's Law Dictionary, ninth edition.) Citation 1 (see exhibit C) title 75 section 3327 subsection A1 and (see exhibit Dj) citation 2 title 75 section 1542 subsection A. These citation and my unlawful imprisonment (kidnapping) are in direct violation of 18 U.S. Code 241 (see exhibit E) and 18 U.S.Code 242 (see exhibit F) under color of law.(Doc. 1, pp. 3-5).
Plaintiff alleges that, after he was pulled over, he was transported by Defendant Schaum “and his gang” to the York County Jail. (Doc. 1, p. 4). Plaintiff reports that he was released the next morning, on October 8, 2019. Id.
On November 12, 2019, Plaintiff received summary trial notices listing Defendant Eckenrode as the Magisterial District Judge, scheduling a court dates on December 11, 2019 for both October 2019 traffic offenses. Id.; (Doc. 1-2, pp. 12, 14). On December 11, 2019, orders imposing sentence were sent to Plaintiff, informing him that his trial had been held in his absence, and that he had been found guilty of both traffic offenses. (Doc. 1-2, pp. 16-17). Pursuant to those orders, Plaintiff was fined $358.00 for driving with a suspended or revoked license, and $259.50 for passing improperly in an emergency response area. Id.
On January 16, 2020, Plaintiff filed a summary appeal in both cases. See Commonwealth v. Brigman, No. MJ-19311-TR-0002692-2019 (Magis. Ct.); Commonwealth v. Brigman, No. MJ-19311-TR-0002691-2019 (Magis. Ct.). Defendant Kraft was assigned the role of presiding judge in the summary appeal. Commonwealth v. Brigman, No. CP-67-SA-0000020-2020 (C.C.P. York County). The docket in this case suggests that Plaintiff entered a guilty plea on July 30, 2020. Id. Plaintiff alleges he did not enter a guilty plea.
On August 28, 2020, Plaintiff filed this pro se civil Complaint in federal court alleging violations of his constitutional rights under 42 U.S.C. § 1983. (Doc. 1). Plaintiff paid the filing fee and served the Complaint. On February 22, 2021, Defendant Schaum filed a Motion to Dismiss (Doc. 23). On March 5, 2021, Defendant Schaum filed a supporting brief (Doc. 24). On May 4, 2021, Plaintiff filed a brief in opposition. (Doc. 37). On May 18, 2021, Defendant Schaum filed a reply. (Doc. 38).
As relief, Plaintiff generally asks that all Defendants “receive their just deserts [sic]” and for reimbursement of court costs and lost wages. (Doc. 1, p. 2). As to Defendant Schaum, Plaintiff specifically requests “$11,500,000.00 dollars in gold and silver.” (Doc. 1, p. 5).
II. LEGAL STANDARD
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss, the court “must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In reviewing a motion to dismiss, a court must “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. However, the court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Further, it is not proper to “assume that [the plaintiff] can prove facts that [he] has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following the rule announced in Ashcroft v. Iqbal, “a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite factual allegations enough to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three-step analysis:
First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief" and instead must ‘show' such an entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the court of appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.'” Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment.”) However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien &Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
III. ANALYSIS
A. Exhibit Attached to Plaintiff's Brief in Support
On May 4, 2021, Plaintiff filed a Brief in Opposition to Defendant Schaum's Motion to Dismiss. (Doc. 37). Attached to this Brief is a 17-page transcript of proceedings before Defendant Kraft. (Doc. 37-1).
The Third Circuit allows courts to consider matters of public record when ruling on a motion to dismiss. In re Rockefeller Center Properties, Inc. Sec. Litig., 184 F.3d 280, 292-93 (3d Cir. 1999). Judicial proceedings are public records of which courts may take
judicial notice. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). Matters of public record have been limited to criminal case dispositions such as convictions or mistrials, letter decisions of government agencies and published reports of administrative bodies. Id. at 293 (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (taking judicial notice of bankruptcy court opinion).
“[J]udicial noticing the existence of a published opinion is proper to resolve a 12(b)(6) motion.” Southern Cross, 181 F.3d at 427, n.7. Nonetheless, the Third Circuit did not call into question its earlier holding that when “a court . . . examines a transcript of a prior proceeding to find facts [it] converts a motion to dismiss into a motion for summary judgment.” Id. (citing Kauffman v. Moss, 420 F.2d 1270, 1274-75 (3d Cir. 1970)). Thus, there is a distinction between “judicially noticing the existence of prior proceedings and judicially noticing the truth of facts averred in those proceedings.” Id. (citing 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5106, at 247 (1999 Supp.). An analogy is the hearsay rule, which allows an out-of-court statement to be admitted into evidence for purposes other than establishing the truth of the statement. Id.; see also Colonial Leasing Co., Inc. v. Logistics Control Group Int'l, 762 F.2d 454, 459 (5th Cir. 1985) (making the distinction between existence and truth). Additionally, where an affidavit is filed in opposition to a pending motion to dismiss, it is clearly a matter outside the pleading “which, if not excluded by the court, required the court to convert the pending motions to dismiss into motions for summary judgment.” Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 1989).Easterling v. Perez, No. 16-4463, 2017 WL 3610484 at *3-4 (D.N.J. Aug. 22, 2017).
Although the Court has taken judicial notice of the state court criminal dockets associated with this case, it has not considered the transcript of the prior court proceedings for the truth of the facts asserted therein. This type of evidence may be appropriately presented in support of a motion for summary judgment, but cannot be considered at the motion to dismiss stage.
B. Plaintiff's Claims Against Defendant Schaum
It is not entirely clear from the face of the complaint what claims Plaintiff intended to bring against Defendant Schaum. In his complaint, Plaintiff generally alleges that he wishes to file a complaint under: “civil rights violations under Bill of rights article 4, United States Constitution Article 14 Section 1 and 18 U.S.C. 241 and 242 and title 42 U.S.C. 1983.” (Doc. 1, p. 1).
As it pertains to Defendant Schaum, Plaintiff also alleges the following claims in an attached “Affidavit of Fact”:
(1) “violation of Article 1 section 1 of the Constitution, for the Republic of the Commonwealth of Pennsylvania and ARTICLE XIV, ” (Doc. 1, p. 3);
(2) violation of “SECTION 1, Of the constitution of the United States of America, ” (Doc. 1, pp. 3);
(3) violation of “Article 1 section 8 of the Constitution, for the Republic of the Commonwealth of Pennsylvania, ” (Doc. 1, p. 3);
(4) violation of “ARTICLE [IV.] of the Constitution of the United States of America. Bill of Rights.” (Doc. 1, p. 3);
(5) violation of “Article 1 section of the Constitution, for the Republic of the Commonwealth of Pennsylvania, ” (Doc. 1, p. 4);
(6) violation of “ARTICLE XIV. SECTION 1.” of the United States Constitution, (Doc. 1, p. 4); and
(7) violation of 18 U.S.C. § 241 and 242 (Doc. 1, p. 5).
In his brief, Defendant Schaum construes Plaintiff's complaint as alleging claims under the Fourteenth Amendment (false arrest), Fourth Amendment (false arrest, unlawful seizure, excessive force), breach of contract, Pennsylvania Constitutional claims, and § 1983 conspiracy.
In his brief in opposition, Plaintiff seems to confirm he is bringing claims under the Fourth (false arrest and unlawful seizure) and Fourteenth (due process and equal protection) Amendments. (Doc. 37, pp. 1-2). Plaintiff also confirms he is bringing a breach of contract claim. Plaintiff alleges that he is not alleging excessive force, and “is willing to drop the charges under the Pennsylvania constitutional claim.” Id.
Based on Plaintiff's representations, I construe the complaint as asserting the following claims against Defendant Schaum:
(1) Fourth Amendment: False Arrest/False Imprisonment;
(2) Fourteenth Amendment, Equal Protection and violations of 18 U.S.C. §§ 241 and 242; and
(3) Breach of Contract.
C. False Arrest/False Imprisonment Claims
It appears that Plaintiff's false arrest and false imprisonment claims all stem from the same conduct-the allegedly unlawful seizure of Plaintiff's person by Defendant Schaum. Plaintiff alleges that when he stopped for fuel Defendant Schaum approached Plaintiff in a hostile manner. (Doc. 1, p. 3). Plaintiff alleges that Defendant Schaum did not immediately identify himself, but also implies that Plaintiff refused to identify himself as well. (Doc. 1, p. 3) (“Adam Schaum . . . then demanded me to identify myself . . . . I told them if they would release me I would show them where to procure some form of identification . . . .”). As a result of this interaction, Plaintiff was charged with two traffic offenses and was “taken to jail.” (Doc. 1, p. 4). Plaintiff was released the next morning. Id.
Plaintiff also asserts an “unlawful seizure” claim. However, this claim appears to refer to the “seizure” of his person. Thus, to the extent Plaintiff is asserting an “unlawful seizure” claim related to the seizure of his person, this claim is construed as false arrest/false imprisonment and is duplicative of his false arrest/false imprisonment claims.
The Fourth Amendment protects “[t]he rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV . To assert a false arrest claim a plaintiff must allege that he or she was arrested without probable cause. Dillard v. Cornick, No. 1:18-CV-70, 2018 WL 4679952, at *4 (M.D. Pa. Sept. 28, 2018); citing Andrews v. Scuilli, 853 F.3d 690, 697 (3d Cir. 2017) (internal citation omitted). “[P]robable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.” Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995).
Like a claim for false arrest, a claim for false imprisonment under § 1983 is based in the Fourth Amendment and the guarantee against unreasonable seizures. Garcia v. County of Bucks, 155 F.Supp.2d 259, 265 (E.D. Pa. 2001). “[W]here the police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention pursuant to that arrest.” Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). Therefore, where a claim for false arrest is sustained, a claim for false imprisonment may also be sustained.
1. Whether Plaintiff's Fourth Amendment Claims are Heck Barred
In his brief, Defendant Schaum argues that:
Brigman's allegations for false arrest/false imprisonment must be dismissed where he pled guilty to the underlying charges. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
To recover damages for an allegedly unconstitutional imprisonment or harm, “a § 1983 Plaintiff must prove that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of writ of habeas corpus.” Heck, 512 U.S. at 486-87.
As evidenced by the averments in Brigman's Complaint and attached Court Dockets, Brigman pled guilty to violations listed as: (1) Duty of Driver in Emergency Response Areas-Pass in Lane Not Adjacent to Area; and (2) Driv While Oper Priv Susp OR Revoked. (See ECF 1, p. 4; ECF 1-2, pp. 16-17, 22).
As a result of the finding of guilt, which has not been reversed on appeal, Brigman's Fourth Amendment false arrest/false imprisonment claim is Heck barred and must be dismissed, as a matter of law. Heck, 512 U.S. at 486-87(Doc. 24, pp. 10-11).
In response, Plaintiff argues:
Fourth Amendment false arrest/false imprisonment and Unlawful seizure is Heck Barred, The plaintiff is not seeking to overturn a conviction. In addition the plaintiff has no other remedy to seek relief because at this time the plaintiff cannot file a writ under habeas Corpus.(Doc. 37, p. 1).
In reply, Defendant Schaum argues:
Although Brigman asserts he “is not seeking to overturn a conviction” and that he “has no other remedy to seek relief because . . . [he] cannot file a writ under habeas Corpus, ” Brigman provides no argument in opposition to Officer Schaum's argument that Brigman's Fourth Amendment False Arrest/False Imprisonment and Unlawful Seizure claims should be Heck-barred. (See ECF 37, p. 1; ECF 24, pp. 10-11). Brigman fails to prove, or even argue, that his guilty plea to (1) Duty of Driver in Emergency Response Areas-Pass in Lane Not Adjacent to Area; and (2) Driv While Oper Priv Susp Or Revoked has been reversed, expunged, declared invalid, or called into question by a federal court's issuance of a writ of habeas corpus, as required by Heck, 512 U.S. at 486-87. (See ECF 1, p. 4; ECF 1-2, pp. 16-17, 22). Rather, Brigman attaches a July 30, 2020 transcript of proceedings, wherein he was found guilty to the above-mentioned charges by the York County Court of Common Pleas. (See ECF 37-1, p. 16).(Doc. 38, pp. 4-5).
Plaintiff alleges that Defendant Schaum approached Plaintiff at a gas station and “bound him in chains.” (Doc. 1, p. 3). Plaintiff alleges Defendant Schaum took him to jail. (Doc. 1, p. 4). Plaintiff also alleges that he was “unlawfully detained, ” “unlawfully imprisoned, ” and “kidnapped.” (Doc. 1). Drawing all reasonable inferences in Plaintiff's favor, he alleges that on October 7, 2019, he was arrested without probable cause and imprisoned. This is enough to state a plausible claim for false arrest and false imprisonment under the Fourth Amendment.
Defendant Schaum argues that Plaintiff was arrested based on two traffic violations: failure to pass in a lane not adjacent to that of an emergency response area in violation of 75 Pa. C. S. § 3327; and driving while his license was suspended or revoked in violation of 75 Pa. C. S. § 1543. Defendant Schaum argues that Plaintiff's false arrest and false imprisonment claims are barred under Heck v. Humphrey, because Plaintiff was convicted of these offenses.
The only case cited by Defendant Schaum in support of his argument is Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, a plaintiff filed a lawsuit under 42 U.S.C § 1983 seeking civil damages against state prosecutors and police seeking money damages because the misconduct of the state prosecutors and police resulted in plaintiff's conviction for manslaughter. 512 U.S. at 479. The plaintiff's appeal of his conviction was pending at the time he filed his complaint in federal district court. Id. When this case reached the United States Supreme Court, it held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486-87. Conversely, “[a] claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 487.
However, the delayed accrual rule articulated in Heck does not always apply to false arrest/false imprisonment claims, Wallace v. Kato, 549 U.S. 384, 390 (2007), and false arrest/false imprisonment claims do not always “render a sentence or conviction invalid.” Burke v. Twp. of Cheltenham, 742 F.Supp.2d 660, 669 (E.D. Pa. 2010) (“It is at least conceivable that arresting officers could lack probable cause to arrest and detain even if the evidence later supports conviction beyond reasonable doubt. . . . Consequently, a plaintiff alleging false arrest and false imprisonment need not necessarily also imply the invalidity of a later conviction.”).
In his argument, Defendant Schaum suggests that the conviction itself demonstrates the existence of probable cause at the time of the arrest. He does not, however, provide any analysis of the facts of this case or explain why Plaintiff's conviction demonstrates the existence of probable case. Although courts have found false arrest and false imprisonment claims were Heck barred at the motion to dismiss stage in other cases, they did so following an analysis of the particular facts of the case. For example, in Burke, the Court dismissed a plaintiff's false arrest/false imprisonment claim based on the following facts:
Here, however, Burke pled guilty to disorderly conduct under 18 Pa.C.S.A. § 5503(a)(2), which provides that “[a] person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . makes unreasonable noise.” Burke admits in his complaint that on the evening of April 6, 2008, (1) he was listening to music at a decibel level disturbing to Welch; (2) after asking Burke to turn down the music, Welch called the police; (3) upon arriving at the scene, Corbo told Burke to turn down his radio; and (4) shortly thereafter, the arresting officers placed Burke under arrest. Thus, at the time of the arrest, the arresting officers had access to all the information regarding Burke's conduct on the evening of April 6, 2008 that later supported his conviction for disorderly conduct-either second-hand, through Welch's complaint, or first-hand, through observation of Burke's behavior. Thus, it is not possible for Burke to argue that the arresting officers lacked probable cause to arrest and detain him without also arguing that his later conviction for disorderly conduct was invalid. Heck v. Humphrey thus forecloses Burke's claims of false arrest and false imprisonment under Counts I and II.742 F.Supp.2d at 669-670. In another case, the Court found that a false arrest/false imprisonment claim was Heck barred at the motion to dismiss stage where the Plaintiff conceded that the officers had probable cause. Kokinda v. Brenier, 557 F.Supp.2d 581, 592-594 (M.D. Pa. 2008).
This case is distinguishable from Burke and Kokinda. The Complaint and attached exhibits do not allege any facts as to the actions by Plaintiff, or suggest what Defendant Schaum might have seen, that led to the charge of failure to pass in a lane not adjacent to that of an emergency response area in violation of 75 Pa.C.S. § 3327. Plaintiff has not conceded that probable cause existed at the time of the arrest. Thus, the Court cannot ascertain at this stage of the proceedings whether Defendant Schaum had probable cause to arrest Plaintiff on that charge.
Plaintiff was also charged with driving while his license was suspended or revoked in violation of 75 Pa.C.S. § 1543. However, it is not clear from the Complaint whether Plaintiff identified himself before or after he was taken into custody. The facts alleged in the Complaint suggest that Plaintiff refused to identify himself or provide valid photo identification. (Doc. 1, p. 3) (“Adam Schaum and his gang then demanded me to identify myself, because they could not find a picture identification in my looted belongings. I told them if they would release me I would show them where to procure some form of identification. Adam Schaum and his gang still did not release me.”). Because it is not clear whether Defendant Schaum knew Plaintiff's identity at the time of the arrest, I cannot conclude at this stage of litigation that there was probable cause for an arrest based on the charge of driving with a suspended or revoked license. Plaintiff has not conceded that Defendant Schaum had probable cause to support this charge.
Accordingly, I am not persuaded by Defendant Schaum's argument that Plaintiff's Fourth Amendment claims are Heck barred.
Defendant Schaum also generally argues that qualified immunity should apply. (Doc. 24, pp. 14-15). In the body of this argument, however, Defendant Schaum only discussed the second prong (whether Defendant Schaum violated a clearly established constitutional right) in the context of an excessive force claim that Plaintiff has since clarified he is not asserting. (Doc. 24, p. 15) (“As Officer Schaum did not violate a clearly established constitutional right by approaching Brigman with his hand on his weapon, he is entitled to qualified immunity on this issue.”). There is no discussion of why qualified immunity should apply to Plaintiff's false arrest/false imprisonment claim.
“[Q]ualified immunity will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.” Thomas v. Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006) (quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001)). The qualified immunity analysis has two prongs. Pearson v. Callahan, 555 U.S. 223, 232 (2009). One prong of the analysis is whether the facts that the plaintiff has alleged or shown make out a violation of a constitutional right. Id. The other prong of the analysis is whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001).
As discussed above, Plaintiff has pleaded a plausible false arrest/false imprisonment claim. As a matter of law, it is “clearly established that probable cause for arrest does not exist where the circumstances do not suggest that an individual had committed or was about to commit a crime.” Noble v. City of Camden, 112 F.Supp.3d 208, 231 (D.N.J. 2015). Relying only on the allegations in the Complaint, Defendant Schaum has not demonstrated that he is entitled to qualified immunity at this stage of the litigation.
D. Fourteenth Amendment Equal Protection Claim/ Violations of 18 U.S.C. §§ 241, 242
The basis of Plaintiff's Fourteenth Amendment claim or claims is not immediately clear from the face of his complaint. In his Brief, Defendant Schaum argues that, to the extent Plaintiff is asserting false arrest or false imprisonment claims, these claims arise under the Fourth (not the Fourteenth) Amendment. (Doc. 24, pp. 9-10).
In his brief, Plaintiff suggests he is alleging due process and equal protection claims under the Fourteenth Amendment. Specifically, Plaintiff states:
Under the defendants claim of the fourteenth amendment being improperly filed, we need to look at UNITED STATES, Appellant, v. Herbert GUEST et al. By ignoring my status as a privet citizen and creating false reports specifically to drag the plaintiff in to an Article one court. The defendant violated by rights to due process and Equal Protection.(Doc. 37, p. 1).
In reply, Defendant Schaum argues that Plaintiff's Fourteenth Amendment claims cannot proceed for three reasons: (1) Plaintiff did not include enough allegations in the Complaint to support a plausible equal protection or due process claim; (2) United States v. Guest does not support Plaintiff's due process or equal protection claims; and (3) Defendant Schaum is entitled to qualified immunity.
1. Plaintiff has Not Pleaded a Plausible Due Process or Equal Protection Claim
The Equal Protection Clause directs that all similarly situated individuals be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Plaintiff does not allege membership in a protected class, as such a I construe the complaint as alleging a claim under a “class of one” theory. Under the class-of-one theory, a plaintiff may advance an equal protection claim absent membership in a protected class if the plaintiff shows that the defendants engaged in irrational and intentional differential treatment of him when compared with similarly situated individuals. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). This theory allows a plaintiff to assert an equal protection claim regardless of protected class when the government irrationally treats the plaintiff differently from similarly situated individuals. Id. at 564; Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). To prevail on a class-of-one claim, Plaintiff must demonstrate that: (1) the defendants treated him differently from others similarly situated; (2) the defendants did so intentionally; and, (3) there was no rational basis for the difference in treatment. Hill, 455 F.3d at 239.
A due process claim requires a two-part analysis. First, the court must determine whether the interest asserted by the plaintiff is within the scope of protection of life, liberty, or property found in the Due Process Clause. Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000). Second, if the interest is one that is protected by the Due Process Clause, “the question then becomes what process is due to protect it.” Id.
In reply, Defendant Schaum argues:
In Plaintiff, Llyod Brigman's (“Brigman”), response to Officer Schaum's Motion to Dismiss, for the first time, he asserts a 14th Amendment Equal Protection claim against Officer Schaum. (ECF 37, p. 1). Brigman's attempt to assert a new Equal Protection claim fails for a number of reasons.
First, Brigman is prevented from asserting new Equal Protection claims in his Brief in Opposition to Officer Schaum's Motion to Dismiss. See Hughes v. United Parcel Service, Inc., 639 Fed.Appx. 99, 104 (3d Cir. 2016) (“it is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”).
Second, even assuming the claim is validly pled, which is denied, Brigman fails to assert any allegations to support an Equal Protection claim against Officer Schaum. Rather, he asserts factual allegations for unlawful deprivations of liberty incident to criminal proceedings. (See ECF 1). These must be analyzed under the Fourth Amendment as set forth more fully in Officer Schaum's Brief in Support. (ECF 24, pp. 9-10).
. . . .
Brigman fails to allege that he was a member of a protected class or that he was treated differently from similarly situated persons outside of his protected class. (See ECF 1; ECF 37). Rather, Brigman asserts that Officer Schaum allegedly “ignore[ed] [his] status as a privet[sic] citizen” and “create[ed] false reports specifically to drag the plaintiff in to an Article one court.” (ECF 37, p. 1).(Doc. 38, pp. 1-3).
I am persuaded by Defendant Schaum's argument that Plaintiff has not pleaded a plausible equal protection claim or due process claim in his Complaint.
Plaintiff contends that, pursuant to the “Affidavit of reservation of rights UCC-1-308/207” served on Defendant Schaum during the October 2019 arrest, he is entitled to be tried in an Article 3 court. Plaintiff appears to allege that his due process rights were violated because he was charged in state court, instead of in an Article 3 Court. This claim has no legal merit. As explained in Section III. E., See infra, of this Report, Plaintiff did not form any binding contract with Defendant Schaum when he served him with his “Affidavit.” Furthermore, I am not persuaded by Plaintiff's position that UCC 1-308 has any impact over the jurisdiction of the state courts and judges as it relates to the state court summary offenses at issue here. See e.g., Brzezinski v. Smith, 2013 WL 2397522 (E.D. Mich. May 31, 2013) (“The UCC speaks only to commercial law and does not provide a proper basis for appealing a criminal conviction, writing a habeas petition, or brining a civil rights action); Hanloh v. People of the State of California, Nos. SACV 17-00113, SACV 17-00114, SACV 17-00116, 2017 WL 489407 at * (C.D. Cal. Feb. 6, 2017) (“The UCC is not a federal law and it has no application to a criminal conviction.”); Commonwealth v. McGarry, 172 A.3d 60 (Pa. Super. 2017); Commonwealth v. Lewis, No. 1857 WDA 2017, 2018 WL 2728337, at *2 (Pa. Super. June 8, 2018). Furthermore, under Pennsylvania law, state magisterial district judges have jurisdiction over summary offenses like those at issue in this case. 42 Pa. C.S. § 1515. The court of common pleas has “exclusive jurisdiction of appeals from final orders of the minor judiciary established within the judicial district.” 42 Pa. C.S. § 932. Accordingly, I find that Plaintiff has failed to plead a plausible due process claim against Defendant Schaum.
I am also persuaded by Defendant Schaum's argument that Plaintiff has failed to plead a plausible equal protection claim. Plaintiff alleges that he was arrested, taken to prison, and charged with two traffic offenses. He does not, however, allege that Defendant Schaum treated him differently than any other similarly situated individual who engaged in the same conduct as Plaintiff. Accordingly, I find that Plaintiff has failed to plead a plausible equal protection claim against Defendant Schaum.
2. Plaintiff's Reliance on U.S. v. Guest is Misplaced & Plaintiff Cannot Bring Claims Under 18 U.S.C. §§ 241, 242
Section 241 of Title 18 of the United States Code is a federal criminal statute, which provides:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to his by the Constitution of laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with the intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secures-
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years for life, or both, or may be sentenced to death.
Section 242 of Title 18 of the United States Code is a federal criminal statute, which provides:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.United States v. Guest, involves the sufficiency of an indictment, which among other things, charged six individuals of conspiring to interfere with the right of African American citizens to travel freely to and from the state of Georgia in violation of 18 U.S.C. § 241. 383 U.S. 745, 747, n. 1 (1966). When this case reached the United States Supreme Court, the Court held that an individual who violates another's Fourteenth Amendment right to equal protection may be prosecuted under 18 U.S.C. § 241. Id. at 753-758.
As discussed above, Plaintiff relies on United States v. Guest, to support his Fourteenth Amendment due process and equal protection claims. (Doc. 37). Plaintiff also cites to 18 U.S.C. §§ 241 & 242 in his Complaint.
In his reply brief, Defendant Schaum argues:
Alternatively, Brigman's reliance on United States v. Guest, 383 U.S. 745 (1966) is misplaced. Guest involved the alleged prevention of the right to travel and whether motivated by racial discrimination, the conspiracy becomes a proper object of 18 U.S.C.S. § 241. Id. at 760. In Guest, the Supreme Court held an allegation in an indictment of state involvement in a criminal conspiracy was sufficient to charge a violation of rights protected by the Fourteenth Amendment. The Court specified that it was dealing with “issues of statutory construction, not with issues of constitutional power.” Id. at 749.
Brigman appears to rely on Guest for a charge of “active connivance by agents of the state in the making of . . . false reports or other conduct amounting to official discrimination” is necessarily sufficient to “constitute denial of rights protected by the Equal Protection Clause.” Id. at 756-57; ECF 37, p. 1. In relying on the same, Brigman cites to dicta (by way of a hypothetical) whether the allegations contained within the criminal indictment expresses state involvement in a criminal conspiracy to deprive African American's the right to travel. Guest, 383 U.S. at 756-57. As more fully set forth in Officer Schaum's Brief in Support (ECF 24, pp. 17-18), Brigman failed to adequately plead claims of collusion and fraud. He likewise failed to allege facts to support a claim that Officer Schaum and York County Sheriff's “reached an agreement to deprive him of a constitutional right under color of law, ” as required to sustain a § 1983 conspiracy claim. See Parkway Garage, Inc., v. City of Phila., 5 F.3d 685, 700 (3d Cir. 1993) abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA, 316 F.3d 392 (3d Cir. 2003). Further, Brigman failed to allege in the Complaint that Officer
Schaum engaged in a conspiracy to deprive him of the right to travel. (ECF 1); see Hughes, 639 Fed.Appx. at 104.(Doc. 38, pp. 3-4).
As discussed in Section III. D. 1., See supra, of this Report, Plaintiff has not pleaded a plausible due process or equal protection claim against Defendant Schaum. His reliance on United States v. Guest does not cure that deficiency. Furthermore, to the extent Plaintiff is relying on this case in an attempt to assert claims against Defendant Schaum under 18 U.S.C. § 241 & 242, these claims are not plausible. These statutes establish criminal liability for certain deprivations of civil rights and conspiracy to deprive civil rights. Shahin v. Darling, 606 F.Supp.2d 525, 538 (D. Del. 2009). Criminal charges cannot be brought under these statutes through a private lawsuit, and these sections do not give rise to a civil cause of action. Id.
E. Breach of Contract
In his complaint, Plaintiff alleges that Defendant Schaum was “served with Notarized Affidavit of reservation of rights UCC 1-308/1-207, ” when they searched Plaintiff's glovebox during the October 7, 2019 arrest. (Doc. 1, p. 4). That reservation of rights is attached to the complaint as exhibit A. (Doc. 1-2, pp. 1-2). The reservation of rights, signed by Plaintiff only, states that:
THIS IS A PUBLIC COMMUNICATION TO ALL Notice to agents is notice to principles Notice to principles is Notice to Agents Applications to all successors and assigns
All are without excuse(Doc. 1-2, p. 1). The notice then identifies that Plaintiff has reserved all of his rights under UCC 1-308/1-207, provides an address and phone number, and identifies Plaintiff as “Non-domestic without the United States.” Id. UCC 1-308 is also quoted. Then, it states:
I retain all of my rights and liberties at all times and in all places, nunc pro tunc (now for then) from the time of my birth and forevermore. Further, I retain my rights not to be compelled to perform under any contract or commercial agreement that I did not enter knowingly, voluntarily and intentionally. And furthermore, I do not accept the liability of the compelled benefit of any unrevealed contract or commercial agreement. I am not ever subject to silent contracts and have never knowingly or willingly contracted away my sovereignty.
Further, I am not a United States citizen or a 14th amendment citizen. I am a State Citizen of the republic and reject any attempted expatriation. See 15 united States statute at large, July 27th, 1868 also known as the expatriation statute
Violation fee of my liberty is $250,000 per incident or per 15 minutes or any part thereof. Wherefore all have undeniable knowledge.(Doc. 1-2, pp. 1-2) (emphasis in original). Plaintiff alleges that “Adam Schaum nor his gang did not abate or question the contract, they remained silent, therefore they gave their implied consent and a contract was formed.
Defendant Schaum argues:
Brigman asserts a breach of contract claim based upon violation of the UCC. “It is black letter law that in order to form an enforceable contract, there must be an officer, acceptance, consideration or mutual meeting of the minds.” Jenkins v. City of Schuylkill, 658 A.2d 380,
383 (Pa. Super. 1995). Further, “silence will not constitute acceptance of an offer in the absence of a duty to speak. Solis-Cohen v. Phoenix Mut. Life Ins. Co., 198 A.2d 554, 555 (Pa. 1964); In re Baum's Estate, 117 A. 684, 685 (Pa. 1922) (“silence and inaction cannot be construed as an assent to the offer”).
Officer Schaum did not accept any purported contract. Brigman purportedly presented Officer Schaum with a UCC 1-308/1-207 document. (ECF 1, pp. 1-2). Officer Schaum remained silent upon presentation of Brigman's purported contract. Id. Brigman's assertion that he unilaterally contracted with Officer Schaum based upon his purported silence and implied consent is “simply incorrect as a matter of black-letter contract law.” Brown v. Aponte, No. Civil Action No. 06-2096, 2006 WL 2869524, at *4 (E.D. Pa. Oct. 3, 2006). Accordingly, Brigman's breach of contract claim fails as a matter of law and must be dismissed.(Doc. 24, pp. 15-16).
Plaintiff responds:
Regarding breach of contract, It has never been contested that Adam Schaum received exhibit A, Reservation of right. Clearly Schaum is in violation of Agent-principle. Notice to agent is notice to principle, notice to principle is notice to agent. By ignoring 1000 year old agent, principle agreement and by receiving exhibit A, Schaum failed to perform. In addition to going against his oath of office to the Constitution for the United States Of America, it also breaches his oath to hold the UCC.(Doc. 37, p. 2) (errors in original).
In reply, Defendant Schaum argues:
Brigman cites to no caselaw or statutory authority to support his allegation that “receipt” of a document constitutes acceptance of the UCC 1-308/1-207 document. (See ECF 37, p. 2). Additionally, although Brigman asserts that Officer Schaum “breache[d] his oath to hold the UCC, ” he cites to no caselaw or statutory authority to support his claim that Officer Schaum has a duty to uphold the UCC, a comprehensive set of laws governing commercial transactions.(Doc. 38, p. 6).
I agree with Defendant Schaum that Plaintiff failed to plead a plausible breach of contract claim. As explained in Smithson v. York County Court of Common Pleas:
Under Pennsylvania law, “[t]o be a contract, the offer must be accepted. An offeree has a right to make no reply to offers, and his silence and inaction cannot be construed as an assent to the offer.” In re Baum's Estate, 117 A, 684, 685 (Pa. 1922); see also Cohen v. Johnson, 91 F.Supp. 231, 236 (M.D. Pa. 1950) (citing Baum's Estate).
To form an enforceable contract, both parties must manifest an intention to be bound by its terms. The “decisive inquiry in contract formation is the ‘manifestation of assent of the parties to the terms of the promise and to the consideration for it.'” Silence will not constitute acceptance of an offer in the absence of a duty to speak. Merely sending an unsolicited offer does not impose upon the party receiving it any duty to speak or deprive the party of its privilege of remaining silent without accepting.
Brown [v. Aponte, No. 06-2096, 2006 WL 2869524, at *4 (E.D. Pa. Oct. 3, 2006)] (citations omitted).No. 1:15-CV-01794, 2016 WL 4521854 at *5 (M.D. Pa. Aug. 3, 2016) report and recommendation adopted by 2016 WL 4523985 (M.D. Pa. Aug. 29, 2016).
In this case, Plaintiff alleges that Defendant Schaum was “served” with a copy of Plaintiff's notice of rights when he searched Plaintiff's glove compartment incident to arrest. Defendant Schaum was “silent.” Based on the allegations in the complaint, no contract was formed because Defendant Schaum did not manifest an intention to be bound by the terms of that notice. Accordingly, Plaintiff's breach of contract claim should be dismissed because no contract was formed.
IV. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) Plaintiff's Fourth Amendment False Arrest and False Imprisonment claims against Defendant Schaum be allowed to proceed at this time; and
(2) All other claims against Defendant Schaum be DISMISSED.