Opinion
1:22-CV-00068
07-19-2023
RON ALLEN HUNTER JR., Plaintiff v. CHRISTOPHER WEBER, TPR., Defendant
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION ON MOTION TO DISMISS IN RE: ECF NO. 43
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that Defendant's Motion to Dismiss Plaintiffs Complaint be granted in part and denied in part. Specifically, it is recommended that:
• Defendant's motion to dismiss Plaintiffs Fourth Amendment false arrest and false imprisonment claims be DENIED;
• Defendant's motion to dismiss Hunter's malicious prosecution claims under federal and state should be GRANTED, but these claims should be DISMISSED without prejudice and with leave to file an amended complaint;
• Defendant's motion to dismiss Plaintiffs defamation claim under state law should be GRANTED, but this claim should be DISMISSED without prejudice and with leave to file an amended complaint;
• Plaintiffs failure to protect claim should be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B);
• Plaintiffs cruel and unusual punishment, humiliation, deformity, and “corrupt authority” claims should be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
II. Report
A. Procedural Posture
Plaintiff Ron Allen Hunter commenced this pro se civil rights action against Defendant Christopher Weber, a Pennsylvania State Trooper, alleging that Weber arrested and detained him without probable cause, used excessive force against him during the arrest, and defamed him. See ECF No. 8 (Complaint). Weber has moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Hunter's claims for false arrest, false imprisonment, and defamation. See ECF No. 43. The motion has been fully briefed and is before the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
When Hunter filed his Complaint, he listed his mailing address as the “County Jail, 1618 Ash Street, Erie, Pa. 16503.” See ECF No. 8, p. 1. In November of 2022, Hunter filed a notice of a change of address, listing an address in Albion, Pennsylvania. See ECF No. 35. He changed his address again on June 12, 2023, this time to a listing in Erie, Pennsylvania. See ECF No 50. Neither of these latter two addresses are for correctional institutions. From this, the Court infers that Hunter is no longer incarcerated.
Weber is not challenging the legal sufficiency of Hunter's Fourth Amendment excessive force claim at this stage of the proceedings.
B. Factual Allegations and Claims Asserted
The Complaint alleges that Weber arrested Hunter on January 11, 2022. Id. at p. 5. Regarding the circumstances and mechanics of the arrest, Hunter avers:
I was walking trying to find a person's house. I was having a hard time finding the house and out of nowhere a cop (aka) a state trooper Christopher Weber jumped out and falsely accused me of being in a car crash I was never in. He grabbed me, dropped me to the ground. I never resisted. He fractured by ribs and put me in the hospital. His body camera will show I was never in the wrong
so I was an innocent person walking and I got assaulted by a state trooper Christopher Weber.Id. at p. 4 (numerous spelling errors corrected). Hunter further asserts that “I was never in a car crash, there was no car wreck, there ain't even any evidence.” Id.
Hunter's Complaint attaches several legal labels to Weber's alleged conduct. These include “aggravated assault with a deadly weapon, assault,” “diformity (sic), false imprisonment, defamation of character, false arrest, a failure to protect, fuls (sic) accusations, defamation of character, humiliation ... and abuse of authority.” Id., pp. 4-5. Upon review, Hunter's Complaint is best construed as raising claims for excessive force, false arrest, false imprisonment, and, possibly, malicious prosecution under the Constitution, and state law claims for defamation and malicious prosecution. Id. By way of relief, Hunter asks that his medical bills be paid, a protection from abuse order be entered against Weber, and damages be awarded to him in the sum of $1,327,000. Id:, ECF No. 25, p. 1.
C. Standard of Decision
A motion to dismiss pursuant to Rule 12 (b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176,183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C+01. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Iqbal, 556 U.S. 662. Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint need not include detailed factual allegations to survive a motion to dismiss, it must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126,143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must ‘tak[e] 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.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121,130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Plaintiff is proceeding pro se, the allegations in the complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”).
D. Discussion and Analysis
1. The Complaint alleges facts sufficient to state Fourth Amendment false arrest and false imprisonment claims.
The elements Hunter must establish to prevail on his Fourth Amendment false arrest and false imprisonment claims are similar. To state a false arrest claim, the factual allegations of his Complaint must support: “(1) that there was an arrest; and (2) that the arrest was made without probable cause.” James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012) (citing Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)); Pinkney v. Meadville, Pennsylvania,, 2023 WL 24297, at *9 (W.D. Pa. Jan. 3, 2023). Similarly, to state a claim for false imprisonment, his allegations must show: (1) that he was detained; and (2) that the detention was unlawful. James, 700 F.3d at 682 (citing Wallace v. Kato, 549 U.S. 384, 389 (2007)). Weber acknowledges, as he must, that he arrested and detained Hunter. See, e.g., ECF No. 13, ¶ 4 (“Plaintiff was arrested and charged with two misdemeanor and two summary offenses.”). He argues, however, that he did so based on probable cause. Indeed, “[f]alse arrest and false imprisonment claims will ‘necessarily fail if probable cause existed for any one of the crimes charged against the arrestee.'” Harvard, 973 F.3d at 199 (quoting Dempsey v. Bucknell Univ., 834 F.3d 457, 477 (3d Cir. 2016)). Conversely, “where 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).
“[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) (citation omitted). Courts “consider the existence of probable cause via a ‘common sense approach' based on the totality of the circumstances, and viewed from the perspective of an objectively reasonable police officer.” Young v. City of Pittsburgh, 562 Fed.Appx. 135,140 (3d Cir. 2014) (internal citation omitted). The standard is “not whether the person arrested in fact committed the offense but whether the arresting officers had probable cause to believe the person arrested had committed the offense.” Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir. 1988).
The facts alleged in Hunter's Complaint, examined in isolation, clearly support a finding that Weber arrested and detained him without probable cause. Hunter alleges that Weber arrested him based on a false accusation that he had been involved “in a car crash.” ECF No. 8, p. 4. Hunter further alleges that “I was never in a car crash, there was no car wreck, there ain't even any evidence. There was no VIN, no make, no model, nothing.” Id. These allegations support an inference that Weber had no basis to reasonably believe that an offense had been or was being committed by Hunter, and nothing in the Complaint leads to a contrary inference. See Kanshaw v. William Paterson Univ., 2019 WL 4200706, at *6 (D.N.J. Sep. 5, 2019). Compare Cromwell v. Fichter, 2023 WL 3734969, at *2 (3d Cir. May 31, 2023) (dismissing false arrest claim where plaintiff made no factual allegations to support his conclusory statements).
This conclusion, however, does not necessarily end the analysis. Weber points out that Hunter was ultimately convicted of a criminal offense based on the incident on January 11, 2022. According to the publicly available docket of the Erie County Court of Common Pleas, Hunter was charged at case number CP-25-CR00437-2022 with resisting arrest, disorderly conduct, public drunkenness, and investigation by officer/duty of operator. Available at https://www.pacourts.us/courts/courts-of-common-pleas/docket-sheets. The Court may take judicial notice of a criminal docket and sentencing order such as those pertinent to this case. See Behanna v. Pennsylvania, 2021 WL 1091354, at *4 (W.D. Pa. Feb. 23, 2021), report and recommendation adopted, 2021 WL 1089607 (W.D. Pa. Mar. 22, 2021). A jury acquitted Hunter of the more serious charges of resisting arrest, disorderly conduct, and public drunkenness, but the trial judge convicted him of the summary offense of “investigation by officer/duty of operator,” a violation of the Pennsylvania Vehicle Code, Section 6308(a). See 75 Pa. C.S.A. § 6308(a); ECF No. 44, p. 4. See also Commonwealth v. Rollins, 292 A.3d 873, 879 (Pa. 2023).
In Rollins, the Supreme Court of Pennsylvania explained that the Pennsylvania Vehicle Code distinguishes between summary offenses and misdemeanors. The Code provides that “it is a summary offense for any person to violate any provision of this title unless the violation is by this title or other statute of this Commonwealth declared to be a misdemeanor or felony.” 75 Pa. C.S.A. § 6502(a). A person convicted of a summary offense “shall be sentenced to pay a fine of $25.00.” Id. Unlike Section 6308(d) of the Code, a violation of which is a third-degree misdemeanor, Section 6308(a), the provision under which Hunter was charged and convicted is a mere summary offense punishable only by a fine.
Weber argues that the state trial judge's conviction of Hunter of the summary offense conclusively establishes that probable cause supported his arrest. See ECF No. 44. In support of this argument, he relies on the favorable-termination rule articulated in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that
to recover damages [or other relief] 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 [.]Heck, 512 U.S. at 486-87) (footnote omitted); see also Moore v. Allison, 2020 WL 3574668, at *4 (W.D. Pa. July 1, 2020).
In this case, the Court must determine “whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his” summary offense conviction. Luna v. Allison, 2019 WL 3997895, at *4 (W.D. Pa. July 26, 2019) (citing Heck, 512 U.S. at 484); see also Grega v. Vroman, 2023 WL 3585758, at *8 (W.D. Pa. May 22, 2023). While courts have noted that probable cause is “conclusively established to exist at the time the arrest was made when there is a guilty plea or conviction,” Vratoric, 2010 WL 4737826, at *5, the Court of Appeals has cautioned that Heck does not automatically bar claims of false arrest and false imprisonment. See Montgomery v. De Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998) (“claims of false arrest and false imprisonment are not the type of claims contemplated by the Court in Heck which necessarily implicate the validity of a conviction or sentence.”); see also Cruz v. City of Pottsville, 2022 WL 2733207, at *6 (M.D. Pa. May 19, 2022), report and recommendation adopted, 2022 WL 2132844 (M.D. Pa. June 14, 2022) (holding that claims for false arrest or false imprisonment are not automatically subject to the favorable-termination rule). “Because a conviction and sentence may be upheld even in the absence of probable cause for the initial stop and arrest... claims for false arrest and false imprisonment are not the type of claims contemplated by the Court in Heck which necessarily implicate the validity of a conviction or sentence.” Montgomery, 159 F.3d at 126 n.5 (citing Mackey v. Dickson, 47 F.3d 744, 746 (5thCir. 1995) (stating that “[i]t is well established that a claim of unlawful arrest, standing alone, does not necessarily implicate the validity of a criminal prosecution following the arrest”). Put another way, “there are circumstances in which it is at least conceivable that arresting officers could lack probable cause to arrest and detain even if the evidence later supports conviction beyond a reasonable doubt.” Burke v. Twp. of Cheltenham, 742 F.Supp.2d 660, 669 (E.D. Pa. 2010).
Accepting, as the Court must, Hunter's allegations as true, it is at least plausible that Weber did not have probable cause for Hunter's arrest despite his subsequent conviction for the summary offense. In other words, a finding of liability against Weber on Hunter's false arrest or false imprisonment claim would not necessarily render Hunter's conviction and sentence for his summary offense violation invalid. The only allegations before the Court at this juncture are that, on January 11, 2022, Weber arrested Hunter without justification as he was walking down the street looking for a friend's house, that in effectuating the arrest, Weber threw Hunter to the ground, assaulted and attacked him, and that Hunter was later convicted of violating 75 Pa. C.S.A. § 6308(a). See ECF No. 8, p. 4. As noted, a jury acquitted Hunter on the three more serious charges against him, resisting arrest, disorderly conduct, and public drunkenness. The summary offense concerning which the trial judge convicted Hunter was punishable only by a fine. The record includes no other information concerning the circumstances leading up to Hunter's arrest or the relationship between those circumstances and his later summary offense conviction. Thus, Hunter has alleged facts sufficient to support a finding that Weber arrested him without probable cause, and the record, as it presently exists, does not support that such a finding would necessarily imply the invalidity of Hunter's conviction on the summary offense. See, e.g., Cruz v. City of Pottsville, 2022 WL 2733207, at *7 (M.D. Pa. May 19, 2022) (premature to find plaintiffs false arrest claim against officer Heck barred where complaint supported inference that officer lacked probable cause to arrest despite plaintiff s subsequent guilty plea); Brigman v. Schaum, 2021 WL 3862023, at *4 (M.D. Pa. Aug. 26, 2021).
In Brigman, the district court addressed whether Heck barred the plaintiff s false arrest claim where the only allegations before the court were that the plaintiff was arrested while pumping gas, that he was “assaulted” and “bound ... in chains” by the arresting officer “purportedly for no reason,” that he was taken into custody, and that he was later released after being convicted of summary offenses. Id. Because the plaintiff had been found guilty of two summary offenses, the arresting officer moved to dismiss the false arrest claim based on the Heck favorable-termination rule. Id., p. 3. In declining to apply the Heck bar, the court noted that dismissal “would require the court to assume facts not in the record and draw impermissible inferences in [the defendant-officer's] favor.” Id., p. 4. The court denied the motion to dismiss the false arrest claim without prejudice to the officer's right to reassert his arguments on a more developed record. Id.
At this early stage then, the Court cannot hold that Hunter's false arrest and false imprisonment claims are Heck barred. Accordingly, it is recommended, as relates to those claims, the motion to dismiss be denied, without prejudice to Weber's right to reassert his Heck argument after the record is further developed.
2. The Complaint fails to allege facts sufficient to state a malicious prosecution claim under federal or state law.
It is possible to infer a malicious prosecution claim from Hunter's allegation of Weber's “abuse of authority,” see ECF No. 8, pp. 3, 5, and Weber has interpreted Hunter's Complaint as raising this claim. See ECF No. 43, ¶ 2. Accordingly, the Court will construe the Complaint as raising the claim under both federal and Pennsylvania law. Consistent with his argument for dismissal of Hunter's false arrest and false imprisonment claims, Weber asserts that Hunter's conviction on the summary offense charge conclusively bars his malicious prosecution claim.
a. Malicious Prosecution Under the United States Constitution
“The following elements are necessary to establish a claim for malicious prosecution pursuant to the Fourth Amendment: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiffs favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Bartley v. Rinker, 2023 WL 2758928, at *6 (W.D. Pa. Apr. 3, 2023) (quoting Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014)). As with Hunter's claims for false arrest and false imprisonment, a claim of malicious prosecution also requires that he plead facts to support the absence of probable cause. Weber argues that Hunter's conviction on the summary offense charge conclusively establishes that there was probable cause to prosecute him for that offense. Case law supports Weber's position. See Berete v. Cortazzo, 2012 WL 6628040, at *3 (E.D. Pa. Dec. 18, 2012) (probable cause is conclusively established in a § 1983 malicious prosecution action where the plaintiff has been convicted of the underlying offense and the conviction has not been overturned); Shelley v. Wilson, 339 Fed. App. 136,139 (3d Cir. 2009) (“The jury's finding that Shelley committed each element of these offenses beyond a reasonable doubt defeats his assertion that there was no probable cause to arrest him.”). But the existence of probable cause to prosecute this single charge does not entitle him to dismissal of Hunter's malicious prosecution claim in this case. As noted, Hunter was acquitted on all charges against him except the summary offense. As a result, his allegations satisfy the favorable termination requirement as to those charges See Buxton v. Dougherty, 686 Fed.Appx. 125, 127 (3d Cir. 2017) (holding that “because Buxton was not convicted of all of the charges, he might be able to meet the favorable termination requirement”) (citing Kossler v. Crisanti, 564 F.3d 181,188 (3d Cir. 2009) (en banc) (“[T]he favorable termination of some but not all individual charges does not necessarily establish [or disestablish] the favorable termination of the criminal proceeding as a whole.”)). In addition, the alleged conduct that served as the basis for the charges on which Hunter was acquitted and the conduct which provided the basis for the summary offense charge for which he was convicted appear to be distinct. As a result, a finding that Weber is liable on Hunter's malicious prosecution claim with respect to the former charges would not “necessarily imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487 (emphasis added). See also, Madero v. Luffey, 549 F.Supp.3d 435, 444 (W.D. Pa. 2021) (observing that “Heck, by its own terms, is inapplicable” and will “only bar § 1983 claims” where a finding on liability on such claims “would "necessarily imply the invalidity of his conviction or sentence.””) (emphasis in original) (quoting Heck).
The existence of probable cause for any of the multiple charges upon which an officer arrested the plaintiff has been held to require dismissal of a false arrest claim and a contrary finding would demonstrate the invalidity of the plaintiff's conviction of a charge or charges. See e.g., Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995) (holding that Heck bars a false arrest claim, when probable cause exists for any charges against the plaintiff and his “proof to establish his false arrest claim, i.e., that there was no probable cause to arrest... would demonstrate the invalidity of [plaintiffs] conviction”). The rationale underlying such holdings, however, does not extend to a malicious prosecution claim arising out of a prosecution that results in a mixed outcome. See Buxton, 686 Fed.Appx. at 127.
Having determined that Heck does not bar Hunter's claim, the Court also finds, consistent with its evaluation of his false arrest and false imprisonment claims, that the facts alleged in the Complaint support the absence of probable cause for his prosecution. Hunter's allegations that Weber lacked probable cause to arrest and detain him also satisfy this element of his malicious prosecution claim. See, e.g., Moffitt, 2023 WL 1863314, at *3 (allegations indicating defendant lacked probable cause for false arrest and false imprisonment claim also support lack of probable cause for malicious prosecution claim). More problematic, however, is the first element of the claim: that Weber initiated criminal proceedings against him.
Typically, a prosecutor initiates criminal proceedings. Courts have noted that, “[i]n most circumstances, a plaintiff cannot establish the initiation element of a malicious prosecution claim against a police officer because prosecutors, rather than police officers, initiate criminal proceedings. See Milbourne v. Baker, 2012 WL 1889148, at *11 (E.D. Pa. May 23, 2012) (citing Albright v. Oliver, 510 U.S. 266, 279 n.5 (1994) (Ginsburg, J., concurring) (“The principal player in carrying out a prosecution ... is not a police officer but a prosecutor.”)). See also Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007). Where a prosecutor, rather than a police officer initiates charges, the police officer is subject to liability for malicious prosecution only if the officer “fails to disclose exculpatory evidence to prosecutors, makes false or misleading reports to the prosecutor, omits material information from the reports, or otherwise interferes with the prosecutor's ability to exercise independent judgment in deciding whether to prosecute.'” Zeglen v. Miller, 2008 WL 696940, at *8 (M.D. Pa. Mar. 12, 2008) (quoting Telepo v. Palmer Twp., 40 F.Supp.2d 596, 610 (E.D.Pa.1999)). In the present case, Hunter does not identify who signed the criminal complaint or otherwise initiated the prosecution against him. Assuming a district attorney or other prosecutor initiated the charges against him, as is typically the case, Hunter also has not alleged that Weber failed to disclose exculpatory evidence to prosecutors, made false or misleading reports to the prosecutor, omitted material information from the reports, or otherwise interfered with the prosecutor's ability to exercise independent judgment in deciding whether to prosecute. Given the omission of factual allegations to support the first element of his malicious prosecution claim, it is recommended that this claim be dismissed. It is further recommended, however, that Hunter be given leave to amend his Complaint to allege the necessary facts, if he is able.
b. Malicious Prosecution Under Pennsylvania Law
Hunter's malicious prosecution claim under Pennsylvania law is subject to the same disposition as his federal constitutional claim. In Pennsylvania, “a party bringing a malicious prosecution claim must demonstrate that: ‘(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiffs favor; (3) the proceeding was initiated without probable cause; and (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice.'” Bristow v. Clevenger, 80 F.Supp.2d 421, 432 (M.D. Pa. 2000) (quoting Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir.l 996)). Thus, the elements of a malicious prosecution claim under Pennsylvania law are the same as under federal law except that the fifth element-that the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding-is not required under Pennsylvania law. Basile v. Twp. of Smith, 752 F.Supp.2d 643, 659 (W.D. Pa. 2010) (citing Kossler v. Crisanti, 564 F.3d 181, 186 n. 2 (3d Cir.2009)) (additional citation omitted). The Pennsylvania Supreme Courts has upheld a malicious prosecution verdict against a police officer who arrested the plaintiff and referred plaintiffs case to prosecutors without probable cause where the evidence supported a finding that the officer's arrest was motivated by a malicious intent. See Neczypor v. Jacobs, 169 A.2d 528, 531 (Pa. 1961) (affirming jury verdict in favor of plaintiff for claim of malicious prosecution against police officer who arrested plaintiff without probable cause and based on a grudge or resentment towards the plaintiff). (“The law in Pennsylvania on malicious prosecution has developed to a large extent based upon the Restatement (Second) of Torts.” Bradley v. Gen. Acc. Ins. Co., 778 A.2d 707, 710-11 (Pa. Super. Ct. 2001). The Restatement (Second) of Torts explains: “criminal proceedings [for the purpose of a malicious prosecution claim] may be instituted by lawful and valid arrest of the accused on a criminal charge.” § 654 cmt. e. Thus, under Pennsylvania law (in contrast to federal law), an officer's arrest without probable cause, standing alone, satisfies the “initiation” of a criminal prosecution element of the claim. Because Hunter has adequately alleges the absence of probable cause for his arrest, his Complaint satisfies the first element of his state law malicious prosecution claim. But that claim nevertheless fails based on the inadequacy of his allegations to satisfy its fourth element, that Weber initiated the prosecution “maliciously or for a purpose other than bringing the plaintiff to justice.” This element is distinct from the probable cause element. In other words, the absence of probable cause alone does not establish that the arrest or prosecution was malicious. See Neczypor, 169 A.2d at 531. Hunter has not alleged any facts to support a finding that Weber arrested him based on any malicious intent or improper motive. Absent such allegations, the claim must be dismissed. Again, however, it is recommended that Hunter be given leave to amend his Complaint to allege the necessary facts, if he is able.
3. Hunter's Complaint fails to state a claim for defamation under Pennsylvania law.
Hunter's Complaint includes “defamation of character” and “defamation of character: humiliation” among its list of legal theories. See, e.g., ECF No. 8, pp. 3, 5. The Court construes this claim as a defamation claim under Pennsylvania state law. See Morrison v. City of Reading, 2007 WL 764034, at *10 (E.D. Pa. Mar. 9, 2007) (noting, “Defamation is not actionable under § 1983”) (citing Kulwicki v. Dawson, 969 F.2d 1454,1468 (3d Cir.1992)). The Complaint includes no allegations specifically relating to this claim. It appears that Hunter contends that his arrest itself has damaged his reputation and caused him humiliation. This is insufficient to state a claim.
To state a defamation claim under Pennsylvania law, the plaintiff must allege facts to support 1) the defamatory character of the communication, 2) publication, 3) that the communication refers to the plaintiff, 4) the third party's understanding of the communication's defamatory character, and 5) injury.” Goldman v. Bennett, 292 A.3d 625 (Pa. Commw. Ct. 2023) (quoting Walder v. Lobel, 488 A.2d 622, 339 (Pa. Super. Ct. 1985)). The facts alleged in Hunter's Complaint do not support any of these required elements. The Complaint does not allege that Weber published any allegedly defamatory communication regarding Hunter to any third party who understood it or that Hunter suffered any resulting reputational injury. See, e.g., Goins v. MetLife Home Loans, 2014 WL 5431154, at *8 (E.D. Pa. Oct. 24, 2014) (defamation claim fails where plaintiff did not allege that defendant published any communication). Thus, Hunter's mere inclusion of “defamation” in his list of legal theories fails to state a claim. See Twombly, 550 U.S. at 555 (conclusions and labels without supporting factual allegations fail to support a claim). Accordingly, this claim should be dismissed.
4. To the extent Hunter's Complaint raises a failure to protect claim against Weber, that claim should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Hunter's Complaint also includes a reference to Weber's “failure to protect” him. See ECF No. 8, p. 3, 5. He appears to premise this claim on Weber's alleged use of excessive force. Weber has not addressed this potential claim in his motion to dismiss. Despite this, district courts must independently review the sufficiency of complaints in civil actions where the plaintiff is proceeding in forma pauperis and suing “a governmental entity or officer or employee of a governmental entity.” See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a). District courts must sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b). When considering a dismissal for failure to state a claim on which relief can be granted, courts apply the same standard of review as that for dismissing a complaint under Rule 12(b)(6). Schreane v. Seana, 506 Fed.Appx. 120,122 (3d Cir. 2012). Thus, to survive sua sponte screening for failure to state a claim, the complaint must allege “sufficient factual matter” to show that the claim is facially plausible. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the [alleged] misconduct.” Iqbal, 556 U.S. at 678. Moreover, while courts liberally construe pro se pleadings, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).
A failure to protect claim is not available under the Eighth Amendment unless it involves “punishment” of an individual who has “already been convicted of a crime.” Walker v. George, 2022 WL 229063, at *2 (S.D.N.Y. June 24, 2022) (citing City of Revere v. Mass. Gen. Hosp., 462 U.S. 239, 244 (1983) (“State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law”) (alterations omitted) (quotation omitted)). See also Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 n.8 (3d Cir. 2003) (failure to protect claim under the Eighth Amendment applies only after the state has secured a formal adjudication of guilt). However, such a claim is potentially available based on pre-conviction conduct under the Due Process Clause of the Fourteenth Amendment. See, e.g., Purdie v. Barmore, 2023 WL 2991459, at *3 (E.D. Pa. Apr. 18, 2023). To state such a claim, he must plead facts which, if proven, would show that “(1) he was incarcerated under conditions posing a substantial risk of serious harm, (2) the [defendants were] deliberately indifferent to that substantial risk to his health and safety, and (3) the [defendants'] deliberate indifference caused him harm.” Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012). Where a defendant has no “realistic and reasonable opportunity to intervene” or otherwise protect the plaintiff, however, he cannot be held liable for failing to protect the plaintiff. Id. at 371.
Hunter appears to allege that Weber, the arresting officer, failed to protect him from his own use of excessive force during the arrest. See ECF No. 8, pp. 3, 5. That is, Weber is the alleged perpetrator of the alleged excessive force from which he failed to protect Hunter. In this regard, Hunter's duty to protect claim is entirely redundant with his Fourth Amendment excessive force claim. A duty to protect or intervene arises only when the harm or threatened harm originates from a person other than defendant officer. Recognizing a duty to protect claim in this context would imply the existence of such a claim in every case where an officer is alleged to have used excessive. Logic defies the proposition that an officer has a separate duty to intervene in his or her own independently actionable use of excessive force. See Lee v. Clark, 2020 WL 8768344, at *7 (W.D. Pa. Dec. 14, 2020), report and recommendation adopted, 2021 WL 630961 (W.D. Pa. Feb. 18, 2021). Therefore, this claim should be dismissed with prejudice.
5. Hunter's Complaint states claim for assault and battery under state law, but to the extent he attempts to allege any other state law claims, they should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Finally, Hunter's Complaint also includes references to aggravated assault, assault with a deadly weapon, corruption of authority, reckless endangerment, humiliation, “deformity,” and cruel and unusual punishment. ECF No. 8, pp. 3, 5. These claims should also be dismissed.
Hunter contends that Weber subjected him to “cruel and unusual punishment” during the arrest. Id. To the extent Hunter is raising a claim under the Eighth Amendment, it should be dismissed because he had not yet been convicted of a crime. See, e.g., Cameron v. Johnson, 2006 WL 1878329, at *2 (E.D. Pa. July 6, 2006). The claim also fails under the “cruel and unusual punishment clause of the Pennsylvania state Constitution. See Williams v. PA Dep't of Corr., 2019 WL 1434670, at *6 (M.D. Pa. Jan. 24, 2019) (the Pennsylvania Constitution's cruel and unusual punishment clause is “coextensive with the Eighth ... Amendment” and therefore “provides no greater protections than that afforded under the Eighth Amendment to the United States Constitution”), report and recommendation adopted in part, rejected in part sub nom. Williams v. PA Dept of Corr., 2019 WL 1429349 (M.D. Pa. Mar. 29, 2019). It appears that Hunter is once again seeking to repackage his Fourth Amendment excessive force claim under a different legal label that does not fit the facts of this case. Accordingly, his cruel and unusual punishment claim should be dismissed.
However, Hunter's allegations of aggravated assault and assault with a deadly weapon, construed as claims of assault and battery under Pennsylvania law, should not be dismissed.
Aggravated assault, assault with a deadly weapon, and reckless endangerment are crimes identified in the Pennsylvania Crime Code. See 18 Pa. C.S.A. § 2702(a)(1) (aggravated assault); 18 Pa. C.S.A. § 2702(a)(4) (deadly weapon); 18 Pa. C.S.A. § 2705 (reckless endangerment). As a private individual, Hunter cannot initiate criminal proceedings against Weber, apolice officer. See Manivann v. County Centre, Pennsylvania, 2022 WL 18276907, at *11 (M.D. Pa. Aug. 19, 2022).
Hunter's Complaint states a claim for excessive force under the Fourth Amendment. See, e.g., Angle v. Smith, 2023 WL 2873255, at *9 (W.D. Pa. Feb. 7, 2023), report and recommendation adopted, 2023 WL 2299304 (W.D. Pa. Mar. 1, 2023). Allegations that support an excessive force claim against an officer have been determined to also state claims for assault and battery under Pennsylvania law where the force applied by a defendant was more than necessary. See Zimmerman v. Schaeffer, 654 F.Supp.2d 226, 256 (M.D. Pa. Aug. 17, 2009). Accordingly, because Hunter's allegations of excessive force in violation of the Fourth Amendment also support assault and battery claims against Weber under Pennsylvania law, this claim should not be dismissed.
The Court expresses no opinion whether these claims are barred by any immunity recognized under Pennsylvania state law.
In contrast, no authority exists to support an independent claim or right to be free of humiliation, “corruption of authority,” and/or deformity. Thus, to the extent Hunter attempts to bring claims pursuant to § 1983 or under state law for those alleged harms, such claims should be dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). See, e.g., Grega, 2023 WL 3585758, at *8; Carter v. Crozier Hospital, 2023 WL 3806351, at *5 (E.D. Pa. June 1, 2023).
E. Leave to Amend
The Court of Appeals for the Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103,108 (3d Cir. 2002). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, amendment would be futile as to Hunter's failure to protect, “cruel and unusual punishment, and his failure to protect, humiliation, deformity, and “corrupt authority” claims. These claims should be dismissed with prejudice. However, amendment may not be futile as to his malicious prosecution and defamation claims. These claims should be dismissed without prejudice, and Hunter should be offered leave to amend as to these claims within twenty (20) following the disposition of this Report and Recommendation. If Hunter fails to file an amended complaint within that time, his malicious prosecution and defamation claims should be dismissed with prejudice.
III. Conclusion
In summary, it is respectfully recommended that:
• Weber's motion to dismiss Hunter's Fourth Amendment false arrest and false imprisonment claims be DENIED;
• Weber's motion to dismiss Hunter's malicious prosecution claims under federal and state should be GRANTED, but these claims should be DISMISSED without prejudice and with leave to file an amended complaint;
• Weber's motion to dismiss Hunter's defamation claim under state law should be GRANTED, but this claim should be DISMISSED without prejudice and with leave to file an amended complaint;
• Hunter's failure to protect claim should be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B);
• Hunter's claims of cruel and unusual punishment, humiliation, deformity, and “corrupt authority” should be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B); and
• Hunter's claims of aggravated assault and assault with a deadly weapon should be construed as state tort law assault and battery claims and should survive screening pursuant to 28 U.S.C. § 1915(e)(2)(B).
IV. Notice Regarding Objections
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72((b)(2), and Local Rule 72(D)(2), the parties are permitted to 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, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72(D)(2).