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Torres v. McLaughlin
United States District Court, E.D. Pennsylvania.November 21, 1996Not Reported in F.Supp. (Approx. 15 pages)
Torres v. McLaughlin
United States District Court, E.D. Pennsylvania.November 21, 1996Not Reported in F.Supp. (Approx. 15 pages)
Only the Westlaw citation is currently available.
United States District Court, E.D. Pennsylvania.
Felix TORRES
v.
John McLAUGHLIN, et al.
CIV.A. No. 96-5865.
Nov. 21, 1996.
Attorneys and Law Firms
Anthony L. Cianfrani, Philadelphia, PA, for Felix Torres.
John O.J. Shellenberger, III, Office of Attorney General, Philadelphia, PA, Shelley R. Smith, Asst. City Solicitor, City of Philadelphia Law Dept., Philadelphia, PA, for John McLaughlin, John Sunderhauf, Commonwealth of Pennsylvania, Office of Attorney General's Bureau of Narcotics Investigations.
Shelley R. Smith, Asst. City Solicitor, City of Philadelphia Law Dept., Philadelphia, PA, for City of Philadelphia.
MEMORANDUM
DALZELL, District Judge.
*1 Felix Torres has brought this action under 42 U.S.C. §§ 1983 and 1985, seeking money damages for alleged violations of his constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments stemming from his arrest and prosecution on state criminal charges. Torres also has asserted supplemental state law claims for assault, battery, and official oppression. The defendants have moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). For the reasons that follow, we will grant in part and deny in part defendants' motion.
I. Factual Background
According to his complaint, on June 2, 1994, while walking alone on the streets of Philadelphia, Torres was arrested by defendant John McLaughlin, a police officer for the City of Philadelphia and the Pennsylvania Attorney General's Bureau of Narcotics Investigations. McLaughlin then took Torres to the parking lot of the Office of the Pennsylvania Attorney General's Bureau of Narcotics Investigation, where McLaughlin allegedly threw Torres to the ground and assaulted him, kicking him in the back, shoulders, and sides. See Compl. at ¶¶ 10-11. Torres was ultimately charged with the manufacture, delivery and/or possession of a controlled substance, a felony under Pennsylvania law. See Compl. at ¶ 12.
On June 10, 1994, McLaughlin testified at the preliminary hearing that he had observed Torres engage in a drug transaction on June 2 and, after arresting Torres, had confiscated a quantity of controlled substances from him. See Compl. at ¶ 13. As a result of that allegedly perjured testimony, Torres was held for trial. See id.
McLaughlin testified against Torres again on April 13, 1995, at a pretrial hearing and, on September 29, 1995, at Torres's state trial, where Torres was found guilty of possession with intent to deliver controlled substances. See Compl. at ¶ 14. Torres claims McLaughlin gave perjured testimony at both the pretrial hearing and trial. See id. Following his conviction on September 29, Torres was remanded into custody. On April 18, 1996, Torres was sentenced to a term of thirty-six to seventy-two months incarceration, fined ten thousand dollars, and assessed one hundred ninety-one dollars in mandatory court costs. See Compl. at ¶¶ 15-16.
Torres remained incarcerated until May 13, 1996, when the Honorable Genece Brinkley “vacated his sentence, dismissed all charges, and ordered his immediate release from custody.” Compl. at ¶ 17.
On August 26, 1996, Torres filed this suit against McLaughlin, John Sunderhauf (the Zone Commander of the Philadelphia Region of the Attorney General's Bureau of Narcotics Investigation), the Commonwealth of Pennsylvania's Office of the Attorney General's Bureau of Narcotics Investigation, and the City of Philadelphia. Torres alleges in his complaint that these defendants violated his “rights to be secure in his person and property, to be free from excessive use of force, and from malicious prosecution, and due process” as well as the “rights secured [to him] by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.” Compl. at ¶¶ 22-23.
*2 Defendants have moved to dismiss the action pursuant to Rules 12(b)(1) and 12(b)(6), asserting that: (1) in their official capacitates, they are not persons subject to suit under § 1983; (2) they are immune from suit in their official capacities under the Eleventh Amendment; (3) the claims arising from Torres's arrest are time barred; (4) McLaughlin is immune from claims arising from his testimony in Torres's criminal prosecution; (5) Torres has not pled a cause of action under the First, Fifth, or Fourteenth Amendment; (6) the complaint does not properly allege supervisory liability against Sunderhauf; and, finally, (7) we should decline to exercise supplemental jurisdiction over Torres's state law claims.
Taking all of the well-pleaded allegations as true and construing the complaint in the light most favorable to the plaintiff, we must determine whether, under any circumstances, the plaintiff might be entitled to relief. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Williams v. Hepting, 844 F.2d 138, 140 (3d Cir.), cert. denied, 488 U.S. 851 (1988). Because federal courts merely require “notice pleadings,” we will construe Torres's pleadings liberally. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 113 S. Ct. 1160, 1163 (1993).
II. Malicious Prosecution or False Arrest
Defendants argue that the facts pled in the complaint regarding Torres's arrest state a cause of action for false arrest, which they claim the applicable statute of limitations bars. Torres seeks to blunt the statute of limitations defense by characterizing the cause of action arising from his arrest as a § 1983 action for malicious prosecution,1 which he maintains is not time barred.
A. Applicable Statute of Limitations
Congress has never enacted a specific statute of limitations for §§ 1983 or 1985. Instead, the Supreme Court in Wilson v. Garcia, 471 U.S. 261, 276, 280 (1985), held, as a matter of federal law, that for § 1983 actions the courts should “borrow” the state statute of limitations period applicable to personal injury torts.2 See Springfield Township Sch. Dist. v. Knoll, 105 S. Ct. 2065 (1985) (“[A]ll § 1983 claims should be characterized for statute of limitations purposes as actions to recover damages for injuries to the person.”).
Accordingly, our Court of Appeals has held that the appropriate limitations period for § 1983 claims in this district is Pennsylvania's two-year statute of limitations for personal injury actions, 42 Pa. Cons. Stat. Ann. § 5524(1) (Purdon Supp. 1996).3 See Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985), cert. denied, 474 U.S. 950 (1985).
Our Court of Appeals has also held that because § 1985, like § 1983, seeks to remedy deprivations sounding in tort, Pennsylvania's two-year statute of limitations for personal injury also applies to § 1985 claims. See Bougher v. University of Pittsburgh, 882 F.2d 74, 79 (3d Cir. 1989) (citing cases).
*3 Though the applicable limitations period governing personal injury actions is borrowed from the law of the forum state, federal law supplies the applicable accrual rule. See Albright, 114 S. Ct. at 813 n.6 (Ginsburg, J., concurring). It is well-established that the statute of limitations period for §§ 1983 and 1985 claims “begins to run from the time when the plaintiff knows or has reason to know of the injury which is the basis of the section 1983 action.” Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991) (citation omitted); see Deary v. Three Un-Named Police Officers, 746 F.2d 185, 193 (3d Cir. 1984); Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982) (per curiam). In order to determine when a plaintiff knew or had reason to know of the alleged constitutional tort, we look to the common law cause of action most closely analogous to the constitutional right allegedly infringed. See Heck v. Humphrey, 114 S. Ct. 2364, 2371 (1994); Albright, 114 S. Ct. at 811.
B. Constitutional Tort Pled in the Complaint
Viewed in the light most favorable to Torres, his seizure was unreasonable, in violation of the Fourth Amendment (as applied to the states through the Fourteenth Amendment), because his arrest was not supported by probable cause and because his conviction was ultimately vacated. This claim bears resemblance to two common law causes of action which the courts often confuse, and which the parties here certainly confuse -- false arrest and malicious prosecution. See Heck, 114 S. Ct. at 2371. The distinction between the two torts here is blurred because the same set of alleged facts may give rise to what Torres characterizes as a claim for malicious prosecution and what defendants describe as a claim for false arrest. Because artful pleading will not avoid statute of limitations difficulties, we examine which cause of action -- false arrest or malicious prosecution -- exists as a matter of law on the complaint's alleged facts.
The Supreme Court differentiated the torts of false arrest and malicious prosecution in Heck v. Humphrey, 114 S. Ct. 2364 (1994). In examining the proper relationship between § 1983 and habeas corpus proceedings, the Court held that a convicted criminal defendant may only bring a § 1983 action if he pleads and proves the unlawfulness of his conviction or confinement. Id. at 2370. In explaining its holding, the Court stated that the common law tort of malicious prosecution provided the closest analogy to the claim at issue there since “unlike the related cause of action for false arrest or imprisonment, [malicious prosecution] permits damages for confinement imposed pursuant to legal process.” Id. at 2371.
The Court of Appeals for the Second Circuit has explained that this “legal process” will ordinarily “be either in the form of a warrant, in which case the arrest itself may constitute the seizure, or a subsequent arraignment, in which case any post-arraignment deprivations of liberty (such as being bound over for trial) might satisfy this constitutional requirement.” Singer, 63 F.3d at 117 (quoting Broughton v. State of New York, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 93 (N.Y.), cert. denied, 423 U.S. 929 (1975)); see Burt v. Ferrese, 871 F.2d 14, 17 (3d Cir. 1989) (“The New York Court of Appeals ... provides a useful discussion of the distinction between these two torts [false arrest and malicious prosecution] in Broughton” (citation omitted)).
*4 The Court of Appeals for the First Circuit, drawing on the teachings of Heck, helpfully distinguished these torts in Calero-Colón v. Betancourt-Lebrón, 68 F.3d 1 (1995):
The critical inquiry that distinguishes malicious prosecution from false arrest in the present context is whether the arrests were made pursuant to a warrant. As a general rule, an unlawful arrest pursuant to a warrant will be more closely analogous to the common law tort of malicious prosecution. An arrest warrant constitutes legal process, and it is the tort of malicious prosecution that permits damages for confinement pursuant to legal process. On the other hand, wrongful warrantless arrests typically resemble the tort of false arrest.
In sum, allegations that a warrantless arrest was not supported by probable cause advance a claim of false arrest at common law,5 see Heck, 114 S. Ct. at 2371, which allows a plaintiff to recover damages from “‘the time of the detention up until issuance of process or arraignment, but no more.”’ Id. (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 119, at 888 (5th ed. 1984)).
By contrast, allegations seeking damages for an arrest made pursuant to an arrest warrant that was not supported by probable cause, or for the period after legal process was initiated, are analogous to the common law tort of malicious prosecution. See id. The tort allows a successful plaintiff to recover for damages covering post-arraignment arrest or imprisonment. See id. (citing Keeton et al., supra, § 119, at 888).
Applying these tenets to the facts pled in the complaint, there were three restraints on Torres's personal liberty that may constitute a sufficient deprivation of liberty to rise to the level of a constitutional violation, see Memphis Community Sch. Dist. v. Stachura, 106 S. Ct. 2537, 2544 (1986): first, Torres's warrantless arrest on June 2, 1994 (see Compl. at ¶ 10); second, the preliminary hearing on June 10, 1994 (see id. at ¶ 13); and, finally, Torres's conviction on September 29, 1995, and his subsequent incarceration until May 13, 1996 (see Compl. at ¶¶ 14-17).
i. Arrest
Torres cannot, as a matter of law, use his arrest as the predicate for a malicious prosecution claim. In order to assert a § 1983 claim for malicious prosecution under the Fourth Amendment, the seizure must have been effected “pursuant to legal process.” Heck, 114 S. Ct. 2371. “Legal process” will ordinarily be either in the form of a warrant or arraignment. Singer, 63 F.3d at 117. Because Torres's arrest was a warrantless arrest and thus not made “pursuant to legal process,” Heck, 114 S. Ct. at 2371, Torres's claim arising out of his arrest most closely resembles a cause of action for false arrest, not malicious prosecution. See Calero-Colón, 68 F.3d at 4 (“[W] rongful warrantless arrest typically resemble the tort of false arrest”); Singer, 63 F.3d at 115-16; cf. Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir. 1996) (seizure pursuant to legal process -- in this case, an arrest warrant -- most closely analogous to common law tort of malicious prosecution).
*5 It is well settled that a § 1983 claim for false arrest accrues on the date of the plaintiff's arrest. See Rose v. Bartle, 871 F.2d 331, 348-51 (3d Cir. 1989); Deary, 746 F.2d at 197 n.16; Hamidian v. Occulto, 854 F. Supp. 350, 353 (M.D. Pa. 1994); Cunnane, No. 92-4844, , at *2 (E.D. Pa. Jan. 26, 1993). Thus, as a matter of federal law, any § 1983 cause of action for false arrest accrued on June 2, 1994, when Torres was allegedly falsely arrested. See Compl. at ¶ 10.6 Since Torres filed his complaint on August 26, 1996, over two months beyond the expiration date of the two-year limitations period, we shall dismiss any claim for false arrest as time barred. See Rose, 871 F.2d at 352 (approving dismissal of § 1983 claims for false arrest because complaint was filed beyond the two-year limitations period); Hamidian 854 F. Supp. at 353 (same). We will therefore grant defendants' motion to dismiss to the extent Torres seeks to recover for injuries arising out of his warrantless arrest.7
ii. Preliminary Hearing and Post-Conviction Detention
In order successfully to assert a § 1983 action for malicious prosecution, Torres must point to some post-preliminary hearing deprivation of his Fourth Amendment right to liberty. See Singer, 63 F.3d at 117.
The preliminary hearing on June 10, 1994 can serve as the predicate for a malicious prosecution claim. Torres alleges that following the preliminary hearing he “was held for trial on all charges.” Compl. at ¶ 13. Viewed in the light most favorable to Torres, the complaint suggests that Torres was taken into physical custody after the preliminary hearing. Accordingly, we find that there was then a post-preliminary hearing “seizure” in Torres's state criminal case sufficient to implicate the Fourth Amendment. See Albright, 114 S. Ct. at 813 (plurality of the Court refused to decide whether subjecting oneself to the restrictions that usually accompany one's release on bail constitutes a “seizure” under the Fourth Amendment); cf. Singer, 63 F.3d at 117; Niemann v. Whalen, 911 F. Supp. 656, 670, 671 (S.D.N.Y. 1996) (“[T]he requirement that plaintiff appear before the court for hearings or trial on the charge against her would not seem, by itself, to constitute the requisite constitutional injury.... Without any indication that plaintiff was subject to restrictions on her liberty -- such as travel restrictions or posting bail -- in violation of her Fourth Amendment right to be free from unreasonable seizure of her person, she may not maintain a § 1983 claim for malicious prosecution.”).8
Torres may also base a malicious prosecution claim on his detention from September 29, 1995 (following his conviction at trial) to May 13, 1996. See Brooks, 85 F.3d at 183; Simpson v. Rowan, 73 F.3d 134, 136 n.4 (7th Cir. 1995), cert. denied, 117 S. Ct. 104 (1996); Calero-Colón, 68 F.3d at 3-4; Singer, 63 F.3d at 117-18.
*6 Because a malicious prosecution claim does not accrue until a favorable termination is obtained, Rose, 871 F.2d at 349,9 which in this case appears to be May 13, 1996, Torres's malicious prosecution claim (filed on August 26, 1996) is not untimely to the extent that he alleges that Officer McLaughlin offered perjured testimony at Torres's preliminary hearing and trial, resulting in his conviction and incarceration.
In addition to the elements necessary to establish a claim under § 1983,10 a plaintiff alleging malicious prosecution must show that (1) the defendant initiated a criminal proceeding, (2) which ended in plaintiff's favor, and (3) which was initiated without probable cause, and that (4) the defendant acted with actual malicious purpose or for a purpose other than bringing the defendant to justice. See Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988) (“Actual malice in the context of malicious prosecution is defined as either ill will in the sense of spite, lack of belief by the actor himself in the propriety of the prosecution, or its use for an extraneous improper purpose.”); see also 52 Am. Jur. 2d Malicious Prosecution § 6 (1970); Restatement (Second) of Torts §§ 668, 672 (1977).
It is axiomatic that termination of the underlying criminal proceeding in favor of the accused is an essential element of a malicious prosecution claim. See Heck, 114 S. Ct. at 2371 (“One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused.”).11 Termination vel non, however, is not sufficient. Instead, the “favorable termination” necessitates that the termination be in a fashion that suggests that the plaintiff is innocent.
Torres alleges that following his conviction he remained in custody “until May 13, 1996, at which time the Honorable Genece Brinkley vacated his sentence, dismissed all charges, and ordered his immediate release from custody.” Compl. at ¶ 17. In light of our Court of Appeals's exposition in Hilferty v. Shipman, 91 F.3d 573, 579-81 (3d Cir. 1996), on this threshold requirement for a claim for malicious prosecution, we find that Torres has not yet demonstrated that the criminal proceedings in state court ended sufficiently in his favor. We shall therefore grant defendants' motion to dismiss Torres's malicious prosecution claim, but we shall do so without prejudice to his right to amend his complaint to satisfy his pleading burden, consistent with Rule 11, if he does so in fifteen days.
III. Immunity from Claims Arising Out of Perjured Testimony
Officer McLaughlin, plaintiff complains, gave perjured testimony at the preliminary hearing, see Compl. at ¶ 13, at the pre-trial hearing, see Compl. at ¶ 14, and at the trial in plaintiff's state court case, see id., at which Torres was convicted of possession of a controlled substance with intent to deliver. See id.
*7 In Briscoe v. LaHue, 460 U.S. 325 (1983), the Supreme Court held that a police officer is entitled to absolute immunity from suit under § 1983 for giving perjured testimony at a criminal defendant's trial. The Court held that:
A police officer on the witness stand performs the same functions as any other witness; he is subject to compulsory process, takes an oath, responds to questions on direct examination and cross-examination, and may be prosecuted subsequently for perjury.
Id. at 342. The Court specifically left open the issue of immunity for perjured testimony at pretrial proceedings, such as probable cause hearings. see id. at 328 n.5.
Our Court of Appeals has extended a police officer's immunity from suits under § 1983 to perjured testimony at pretrial hearings. See William v. Hepting, 844 F.2d 138, 141 (3d Cir.) (policy considerations of Briscoe “support the extension of the absolute immunity doctrine to a witness at the pretrial stage of the judicial process”), cert. denied, 488 U.S. 851 (1988); Kulwicki v. Dawson, 969 F.2d 1454, 1467 n.16 (3d Cir. 1992); McArdle v. Tronetti, 961 F.2d 1083, 1085 (3d Cir. 1992). Torres, however, argues that under Malley v. Briggs, 475 U.S. 335 (1986), and the Second Circuit's interpretation of that decision in White v. Frank, 855 F.2d 956 (2d Cir. 1988),12 McLaughlin is a “complaining witness” and thus is not entitled to absolute immunity for false testimony made in initiating a prosecution. In Malley, a state trooper arrested the plaintiff on an arrest warrant lacking probable cause. In the § 1983 action that followed, the state trooper claimed absolute immunity because “his function in seeking an arrest warrant was similar to that of a complaining witness.” 475 U.S. at 340. In response, the Court held:
The difficulty with this submission is that complaining witnesses were not absolutely immune at common law. In 1871, the generally accepted rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held liable if the complaint was made maliciously and without probable cause. Given malice and the lack of probable cause, the complainant enjoyed no immunity.
Id. at 340-41 (citing actions for malicious prosecution).
Our Court of Appeals in Kulwicki v. Dawson, 969 F.2d 1454, 1467 n.16 (3d Cir. 1992), recognized the tension “between the Supreme Court's sweeping protection of all witness testimony in Briscoe, and the common law distinction, noted in Malley v. Briggs.” Our Court of Appeals reconciled the two Supreme Court cases this way:
In Malley, the Supreme Court noted, in the context of rejecting immunity for a police officer's baseless application for an arrest warrant, that complaining witnesses were not afforded immunity at common law. The Court was not addressing the issue of testimony at trial, as it did in Briscoe. We decline to interpret the language in Malley as overriding the broad witness protection announced in Briscoe.
*8 Id.; see Pansy v. Preate, 870 F. Supp. 612, 630 (M.D. Pa. 1994) (noting that in Kulwicki and McArdle v. Tronetti, 961 F.2d 1083 (3d Cir. 1992), the Third Circuit affirmed its extension in Williams v. Hepting of absolute immunity to police officers for their testimony at preliminary hearings), aff'd, 61 F.3d 896 (3d Cir. 1995).
Accordingly, we hold that McLaughlin is absolutely immune from suit under § 1983 for any alleged false testimony he may have offered at Torres's preliminary hearing, pretrial hearing, or trial because, under our Circuit's law, a police officer who gives false testimony in a Pennsylvania court may be prosecuted for perjury or false swearing but cannot be sued for damages under § 1983. Accord Jones v. Conway, No. 92-3883, , at *1 (E.D. Pa. July 21, 1992); Williams v. Hill, No. 92-2379, , at *2 (E.D. Pa. Apr. 28, 1992); Stover v. Palma, No. 92-2051, , at *1 (E.D. Pa. Apr. 16, 1992).13
IV. Eleventh Amendment Immunity
The Eleventh Amendment bars Torres's claims for money damages under §§ 1983 and 1985 against the Commonwealth of Pennsylvania's Office of the Attorney General's Bureau of Narcotics Investigation.14 See Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) (state is not a “person” liable under § 1983 and Eleventh Amendment bars § 1981 damage actions in federal court against state and their officers). Accordingly, we dismiss all claims against the Bureau of Narcotics.
V. Supervisory Liability
The Eleventh Amendment also bars Torres's claims under § 1983 for money damages against Sunderhauf in his official capacity. See Will, 491 U.S. at 58. Sunderhauf acknowledges, as he must, see Kentucky v. Grahan, 473 U.S. 159, 166 (1985), that he is subject to suit under § 1983 in his individual capacity. Def. Reply at 1.
As McLaughlin's supervisor, Sunderhauf may only be held liable under § 1983 for the wrongs allegedly committed by McLaughlin if Torres demonstrates that Sunderhauf “exhibited deliberate indifference” to the alleged deprivations of constitutional rights. Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989); see Rizzo v. Goode, 423 U.S. 362, 370 (1976) (no respondeat superior liability in § 1983 actions). In order to be liable in his supervisory capacity, Sunderhauf must have known of the constitutional deprivation, participated in the deprivation or acquiesced to the wrongful conduct. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Black v. Stephens, 662 F.2d 181, 189 (3d Cir. 1981), cert. denied, 455 U.S. 1008 (1982). Accordingly, in order to hold Sunderhauf liable, Torres must: “1) identify with particularity what the supervisory official failed to do that demonstrates his deliberate indifference; and 2) demonstrate a close causal relationship between the identified deficiency and the ultimate injury.” Kis v. County of Schuylkill, 866 F. Supp. 1462, 1474 (E.D. Pa. 1994) (citing Sample and City of Canton v. Harris, 489 U.S. 378 (1989)).
*9 Torres's claim of supervisory liability is premised, in part, on Sunderhauf's alleged failure adequately to train McLaughlin. See Compl. at ¶ 24. Our Court of Appeals has instructed us that, “[a] § 1983 plaintiff pressing a claim of this kind must identify a failure to provide specific training that has a causal nexus with his or her injury and must demonstrate that the failure to provide that specific training can reasonably be said to reflect a deliberate indifference to whether constitutional deprivations of the kind alleged occur.” Colburn v. Upper Darby Township, 946 F.2d 1017, 1030 (3d Cir. 1991).
With regard to Sunderhauf, Torres alleges:
Defendant[], John Sunderhauf ... knew or should have known of Defendant, John McLaughlin's violent nature and his pattern of falsely arresting citizens. [[[This] defendant[] [was] put on actual and/or constructive notice of Defendant McLaughlin's violent tendencies and his habit of falsely arresting citizens based on a repeated pattern of behavior and yet failed to act accordingly to correct said actions.
Compl. at ¶ 19. In addition, Torres asserts that “[d]efendant[], John Sunderhauf ... as a matter of policy and practice, [has] with deliberate indifference” (a) failed to adequately discipline, train or otherwise direct police officers and agents concerning the rights of citizens, see Compl. at ¶ 24; (b) failed to properly sanction or discipline police officers and agents, including Defendant McLaughlin, for violations of the constitutional rights of citizens, see id. at ¶ 25; and (c) failed to sanction or discipline police officers and agents, including Defendant McLaughlin, who conceal violations of constitutional rights of citizens by other officers and agents, see id. at ¶ 26. According to Torres, each of these failures on the part of Sunderhauf have “caus[ed] police officers and agents to engage in unlawful conduct.” Compl. at ¶¶ 24, 25 & 26.
Among the deficiencies in Torres's pleadings are his failure to allege any specific facts to support his conclusory allegation that McLaughlin had a pattern or habit of falsely arresting citizens, or to point to any specific conduct on Sunderhauf's part that is indicative of deliberate indifference, or to provide any factual basis demonstrating that Sunderhauf was involved in or acquiesced in McLaughlin's alleged misconduct. Despite these shortcomings, however, we are not prepared at this time to find that there is no set of facts under which Torres may be entitled to relief.15 Accordingly, we shall deny Sunderhauf's motion to dismiss Torres's claim of supervisory liability.
VI. First and Fifth Amendment Claims and § 1985 Claim
Though Torres asserts a violation of the First Amendment, see Compl. at ¶ 6, he fails to plead any facts that suggest any violation of his First Amendment rights. Indeed, Torres appears to have abandoned his First Amendment claim in the complaint itself. See Compl. at ¶ 23 (plaintiff deprived of his “rights secured by the Fourth, Fifth, and Fourteenth Amendments”).16 We shall therefore dismiss plaintiff's First Amendment claim.
*10 Torres also asserts a claim under the Fifth Amendment. Viewing the facts pled in the light most favorable to Torres, we construe his Fifth Amendment claim to relate to McLaughlin's alleged exertion of excessive force when he arrested Torres. In Graham v. Connor, 490 U.S. 386, 395 (1989), the Supreme Court held “that all claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard, rather than under a ‘substantive due process' approach.” As we explained above in considerable detail, see supra Part II, all claims regarding Torres's claim arrest accrued on the date of his arrest and are now time barred. Accordingly, Torres's improperly denominated Fifth Amendment claim, which we view as a claim to be free from unreasonable seizure under the Fourth Amendment, is also dismissed as time barred. See Jackson v. Nicolletti, 875 F. Supp. 1107, 1109 (E.D. Pa. 1994).
Finally, Torres alleges a cause of action under 42 U.S.C. § 1985. See Compl. at ¶ 6. Despite the lack of specificity, Torres's only possible cause of action under 42 U.S.C. § 1985 is under § 1985(3).17 To state a claim actionable under § 1985(3), a complaint must allege two elements: (1) the existence of a conspiracy, and (2) some “class-based, invidiously discriminatory animus behind the conspirators' action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); see Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753, 756 (1993). The complaint lacks any allegation that a conspiracy existed or that Torres was deprived of the equal protection of the law or equal privileges and immunities because of discrimination based on a constitutionally protected classification. Plaintiff's § 1985 action is therefore dismissed for failure to state a claim upon which relief may be granted. See Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.), cert. denied, 464 U.S. 857 (1983) (“A Complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.”).18
VII. Supplemental State Law Claims
Having dismissed all of plaintiff's federal claims against McLaughlin, we must decide whether to entertain or dismiss the state claims against McLaughlin, an issue statutorily committed to our discretion. See 28 U.S.C. § 1367. The Supreme Court has, however, mandated that “if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” United States Mineworkers v. Gibbs, 383 U.S. 715, 726 (1966); see Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (Gibbs analysis informs federal courts' discretion to discuss supplemental state law claims under § 1367). Accordingly, we exercise our discretion to dismiss the supplemental state law claims against McLaughlin, see Counts III, IV & V.19
*11 An appropriate Order follows.
ORDER
AND NOW, this 21st day of November, 1996, upon consideration of defendants' motion to dismiss, the plaintiff's response, and defendants' reply, and in accordance with the accompanying Memorandum Opinion, it is hereby ORDERED that:
1. Defendants' motion to dismiss plaintiff's § 1985 claim, see Compl. at ¶ 6, First Amendment claim, see id., and Fifth and Fourteenth Amendment claims in Count I is GRANTED as to all defendants;
2. Defendant McLaughlin's motion to dismiss is GRANTED as to plaintiff's § 1983 claims for false arrest and malicious prosecution in Count I, and plaintiff's claims in Counts III, IV, and V;
3. In view of ¶¶ 1 and 2, JUDGMENT IS ENTERED in favor of defendant John McLaughlin and against plaintiff on all claims in the complaint;
4. Defendant John Sunderhauf's motion to dismiss is GRANTED IN PART and DENIED IN PART, in that it is:
(a) GRANTED as to all claims asserted against defendant Sunderhauf in his official capacity in Count I;
(b) DENIED as to plaintiff's claim for supervisory liability in Count I;
5. Defendant Commonwealth of Pennsylvania Office of Attorney General's Bureau of Narcotics Investigations' motion to dismiss is GRANTED as to all claims in Counts I; and
6. Plaintiff is GRANTED LEAVE to amend his claim for malicious prosecution if he can do so in conformity with (a) our Memorandum of today, and (b) Fed. R. Civ. P. 11, and do so within fifteen days of this Order.
All Citations
Not Reported in F.Supp.,Footnotes
Though there is no Fourteenth Amendment substantive due process right to be free from malicious prosecution, see Albright v. Oliver, 114 S. Ct. 807, 811 (1994); Singer v. Fulton County Sheriff, 63 F.3d 110, 115 n.3 (2d Cir. 1995) (quoting excerpts from all four concurring opinions in Albright for the proposition that a plaintiff may not assert a claim for malicious prosecution as a substantive due process claim), cert. denied, 116 S. Ct. 1676 (1996); Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994) (“Albright would appear virtually to foreclose reliance on substantive due process as the basis for a viable malicious prosecution claim under section 1983 ....”); , the Supreme Court has not foreclosed the possibility that a malicious prosecution cause of action may be actionable under the Fourth Amendment in a § 1983 claim, see Albright, 114 S. Ct. at 813; Singer, 63 F.3d at 115 n.4 (analysis of the four separate opinions in Albright yields the conclusion that the Fourth Amendment is the source for a § 1983 action premised on a person's arrest); Smart v. Board of Trustees, 34 F.3d 432, 434 (7th Cir. 1994) (reading Albright as allowing malicious prosecution claims so long as they are brought under the Fourth Amendment), cert. denied, 115 S. Ct. 941 (1995). Accordingly, despite the fact that Torres's complaint does not allege a specific constitutional provision under which his malicious prosecution claim arises, construing his allegations in the light most favorable to Torres, we assume that the claim is pled under the Fourth Amendment.
Id. at 278 (“In essence, § 1983 creates a cause of action where there has been injury, under color of state law, to the person or to the constitutional or federal statutory rights which emanate from or are guaranteed to the person. In the broad sense, every cause of action under § 1983 which is well-founded results from ‘personal injuries.”’).
The statute provides in relevant part:
The following actions and proceedings must be commenced within two years:
(1) An action for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process.
The treatise American Jurisprudence explains the difference this way:
The essential difference between false imprisonment and malicious prosecution is the validity of the legal authority for the restraint imposed. In malicious prosecution the detention is malicious, but under due form of law, whereas in false imprisonment the converse is true. The detention is unlawful, but malice and lack of probable cause are not essential, as a general rule, to the cause of action. Thus, were the process on which an arrest is made is regular and legal in form and issued by a court of competent authority, but issued maliciously and without probable cause, the remedy is an action for malicious prosecution. However, a suit for false arrest or imprisonment is the proper action where the aggrieved party is arrested without legal authority, as where he or she is arrested pursuant to process that is void.
In some instances, the court may find that both malicious prosecution and false imprisonment are involved in the same dispute. If so, the fact that they follow each other in successive events does not in any way merge the wrongs inflicted, or deprive the plaintiff of his or her right to recover damages for each offense.
Prosser differentiates between the torts by explaining that:
If the defendant complies with the formal requirements of the law, as by swearing out a valid warrant, so that the arrest of the plaintiff is legally authorized, the defendant is not responsible for the actions of the court and its officers. The defendant is therefore liable, if at all, only for a misuse of legal process to effect a valid arrest for an improper purpose. The action must be for malicious prosecution, upon proof of malice and want of probable cause, as well as termination of the proceeding in favor of the plaintiff.
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 11, at 54 (5th ed. 1984). Prosser further explains:
Frequently malicious prosecution claims are coupled with claims for false imprisonment, but the two are entirely distinct. So long as the plaintiff has been detained by legal process, it cannot be said that he has been falsely imprisoned and the claim, if there is one, must be for malicious prosecution, where malice and a want of probable cause must be shown. If there is no process issued at all and the plaintiff is arrested without a warrant or any other valid basis for an arrest, there is no malicious prosecution but a false arrest. Where an unjustified detention takes place, followed by improper prosecution, the plaintiff may be required to assert both false imprisonment and malicious prosecution to recover all his damages.
Id. at 885-86.
Typically, the elements of a false arrest claim are: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the defendant had no privilege to cause the confinement. See Restatement (Second) of Torts §§ 35, 118 cmt. b (1965). Neither actual malice nor lack of probable cause is an element of false arrest.
See Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992), aff'd on other grounds, 114 S. Ct. 807 (1994); Johnson v. Johnson County Comm'n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988); Davis v. Harvey, 789 F.2d 1332, 1333 n.1 (9th Cir. 1986); Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980), cert. denied, 450 U.S. 920 (1981).
Dismissal is appropriate when the face of the complaint clearly reveals the existence of a meritorious affirmative defense such as a statute of limitations bar. See 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 352 (1990) (“A complaint showing that the statute of limitations has run on the claim is the most common situation in which the affirmative defense appears on the face of the pleading,” rendering dismissal under Rule 12 appropriate).
Cf. Johnson v. City of New York, No. 93-7263, , at *3 (S.D.N.Y. Sept. 24, 1996) (“[Plaintiff] alleges that he was released immediately following his appearance before Judge Goldberg. Because Johnson fails to allege that he suffered a post-arraignment deprivation of liberty, his malicious prosecution claim will be dismissed.”) (citing Gonzalez v. City of New York, 94-7377, , at *3 (S.D.N.Y. May 3, 1996)); Murphy v. Lynn, 903 F. Supp. 629, 632 (S.D.N.Y. 1995) (dismissing malicious prosecution claim because “plaintiff [did] not allege any post-arraignment deprivation of liberty”).
To hold otherwise would result in requiring a plaintiff to file a § 1983 suit alleging malicious prosecution before he even knew that he had a cause of action.
To recover under § 1983, Torres must plead and prove two essential elements. First, there must be a deprivation of Torres's “rights, privileges, or immunities secured by the Constitution and laws” of the United States. Baker v. McCollan, 443 U.S. 137, 140 (1970); see Parratt v. Taylor, 451 U.S. 527 (1981). Section 1983 is not in itself a source of substantive federal rights. See Albright, 114 S. Ct. at 811. Instead, in order to state a cognizable § 1983 claim, a plaintiff must allege a violation of a particular federal right. See Heck, 114 S. Ct. at 2370 (section 1983 creates “a species of tort liability” for redressing deprivations of federal constitutional rights (quoting Stachura, 477 U.S. at 305)); Albright, 114 S. Ct. at 811; Carey v. Piphus, 435 U.S. 247, 253 (1978) (section 1983 “was intended to ‘[create] a species of tort liability’ in favor of persons who are deprived of ‘rights, privileges, or immunities secured’ to them by the Constitution.” (quoting Imbler v. Pachtman, 424 U.S. 409, 417 (1976))).
Second, Torres must allege that the defendants deprived him of these constitutional rights “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” Monroe v. Pape, 365 U.S. 167, 171-88 (1961); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970).
See also Hilfirty v. Shipman, 91 F.3d 573, 579-81 (3d Cir. 1996); Dunn v. Tennessee, 697 F.2d 121, 127 (6th Cir. 1982) (citing cases), cert. denied, 460 U.S. 1086 (1983); Singleton, 632 F.2d at 194-95 (in order to assert malicious prosecution claim, plaintiff must allege and prove that prosecution terminated in some manner indicating that plaintiff was not guilty of the offense charged); Cap v. K-Mart Discount Stores, Inc., 515 A.2d 52 (Pa. Super. 1986); Keeton et al., supra, § 119, at 874-75; Restatement (Second) of Torts § 653(b) (1977).
In White, two Poughkeepsie, New York police officers testified before a grand jury and then again at trial that they had witnessed plaintiff White sell cocaine. White was convicted. The two officers were subsequently swept up in a police corruption scandal, and one of the officer admitted to having offered perjured testimony at White's trial. White, after serving two years in prison, was freed and sued the two officers under § 1983 for false arrest, false imprisonment, and malicious prosecution.
In rejecting the defendants' assertion of absolute immunity for their admittedly perjured testimony, the Second Circuit explained:
The common law made a subtle but crucial distinction between two categories of witnesses with respect to their immunity for false testimony. Those whose role was limited to providing testimony enjoyed immunity; those who played a role in initiating a prosecution -- complaining witnesses -- did not enjoy immunity. The distinction reflected the difference between the two causes of action by which those falsely accused sought to hold witnesses liable.
855 F.2d at 958-59. In an action for defamation, the court continued:
[T]he perjurious witness was sought to be held liable only for the defamatory effect of his testimony, and in such an action he enjoyed absolute immunity upon a threshold showing that the allegedly defamatory statements were relevant to the judicial proceeding. This immunity applied to grand jury as well as trial testimony.
Id. (citation omitted). By contrast,
in an action for malicious prosecution, the complaining witness was sought to be held liable for his role in initiating a baseless prosecution, and ‘complaining witnesses were not absolutely immune at common law.’
Id. (quoting Malley, 475 U.S. at 340). Therefore, the court concluded that:
Where [] the constitutional tort is the action of a police officer in initiating a baseless prosecution [a claim of malicious prosecution], his role as a ‘complaining witness' renders him liable to the victim under Section 1983, just as it did at common law, and the fact that his testimony at a judicial proceeding may have been the means by which he initiated the prosecution does not permit him to transpose the immunity available for defamation as a defense to malicious prosecution.
Id. at 961 (criticizing its fellows circuits, including the Third, for failing to recognize the distinction). See generally, Eugene Scalia, Police Witness Immunity Under § 1983, 56 U. Chi. L. Rev. 1433 (1989).
In addition, McLaughlin is immune from suit in his official capacity under the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 27 (1991) (“State officers sued for damages in their official capacity are not ‘persons' for purposes of the suit because they assume the identity of the government that employs them.”) (affirming Melo v. Hafer, 912 F.2d 628, 634 (3d Cir. 1990) (noting that “neither a state nor state officials sued in their official capacities for money damages are ‘persons' under § 1983”)).
The Office of the Attorney General is an administrative department of the Commonwealth's executive branch. See 71 Pa. Cons. Stat. §§ 61, 732-201. The Attorney General is authorized to establish bureaus like the Bureau of Narcotics, see id. § 732-201(c), which are entitled to the Eleventh Amendment immunity, because the Commonwealth has expressly withheld consent to be sued in federal court, see 42 id. § 8521(b).
But see Brown v. Stewart, 910 F. Supp. 1064, 1068 (W.D. Pa. 1996) (under the Third Circuit's heightened pleading standard for evaluating the sufficiency of civil rights complaints brought against governmental officials in their personal capacity, complaints must allege “the time and place of the unlawful conduct, and the identity of the responsible officials”); House v. New Castle County, 824 F. Supp. 477, 482-83 (D. Del. 1993) (granting summary judgment for failure to plead supervisory liability with any specificity).
Our conclusion is buttressed by Torres's failure to respond to defendant's motion to dismiss his First Amendment claim.
Torres has not alleged that he is a federal office holder, see 42 U.S.C. § 1985(1), or that any of the defendants conspired against him because he was a party or witness in federal court, see id. § 1985(2).
This dismissal is of course without prejudice to plaintiff's right to present his claims in state court (although we harbor substantial doubt about the validity of these claims, see supra Parts II & VI).
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