personal decisions (the autonomy branch). The Whalen Court also recognized a constitutionally protected privacy interest in the right against disclosure of personal matters (the confidentiality branch).
Because Mr. Garner asserts his claim under the confidentiality branch, my first inquiry is whether the type of information disclosed -- the fact that Mr. Garner's business operations were implicated in a police and grand jury investigation -- is the type of "private" information protected by the constitution. See Scheetz v. The Morning Call, Inc., 946 F.2d 202, 206 n.5 (3rd Cir. 1991), cert. denied, 117 L. Ed. 2d 417, 112 S. Ct. 1171 (1992). I find that it is not.
The fact that an individual is the subject of a police or grand jury investigation is, by its nature, the type of public information in which a plaintiff does not have a federally protected privacy interest. See, e.g., Paul v. Davis, supra, (publication of arrest does not implicate constitutional privacy rights); Scheetz v. The Morning Call, Inc., supra, (information in a police report is not protected by constitutional right to privacy); Trade Waste Management Ass'n Inc. v. Hughey, 780 F.2d 221, 234 (3rd Cir. 1985) (disclosure of criminal convictions and pending criminal charges not protected and any expectation of privacy in the conduct underlying the charges has never been "reenforced" by law). Compare Fraternal Order of Police, Lodge No. 5 v. Philadelphia, 812 F.2d 105 (3rd Cir. 1987) (there is no absolute protection against disclosure of constitutionally protected medical information if government's interest in disclosure outweighs individual's privacy interest); United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3rd Cir. 1980) (same).
Here, regardless of whether the investigation was properly initiated, it was initiated and, thus, any disclosures fell within the ambit of public information in which Mr. Garner did not have a constitutional privacy interest. Indeed, in his briefs, Mr. Garner relies on state tort law as the basis of his claim. Whether or not plaintiff could succeed on a state cause of action for invasion of privacy is irrelevant to this claim for violation of a constitutional privacy right. Scheetz v. The Morning Call, supra, 946 F.2d at 206-207 (citing United States Dept. of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989)); Jones/Seymour v. LeFebvre, 781 F. Supp. 355, 358 (E.D.Pa. 1991), aff'd, 961 F.2d 1567 (3rd Cir. 1992). Because disclosure that an individual is implicated in a police or a grand jury investigation does not violate a constitutionally protected privacy interest, I will enter summary judgment on defendants' motions for summary judgment as to Count I of plaintiff's second amended complaint in so far as it states a Section 1983 claim for tortious invasion of privacy.
D. The revocation of Mr. Garner's towing privileges did not invoke the procedural due process protections of the constitution.
Mr. Garner also alleges that Chief Hughes and the Wrightstown defendants deprived him of his constitutional right to procedural due process under the Fourteenth Amendment when Chief Hughes revoked his towing privileges without a hearing. In order to succeed on this claim, Mr. Garner must establish that he had a constitutionally protected interest in his informal, unwritten towing agreement with the township. I find that he did not.
"Property interests are not created by the Constitution, 'they are created and their dimensions are defined by existing rules or understanding that stem from an independent source such as state law . . .' ". Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 539, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). "To have a property interest in a benefit, a person clearly must have . . . a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
For example, the United States Supreme Court has found that a civil service job is a constitutionally protected property interest mandating full due process protections of notice and a fair hearing prior to dismissal. Loudermill, supra. Likewise, there is a protected entitlement to welfare benefits requiring notice and a hearing before the benefits can be terminated. Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970). By comparison, because a one year non-tenure employment contract did not create a constitutionally protected property interest, an assistant professor at a state university was not entitled to a hearing under the due process clause when his contract was not renewed. Board of Regents v. Roth, supra.
Mr. Garner relies on the Supreme Court's decision in Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971), to argue that his towing agreement with the township was an entitlement invoking the full panoply of procedural due process protections under the Fourteenth Amendment. In Bell, the Court held that the state could not suspend an issued driver's license without procedural due process required by the Fourteenth Amendment. In his brief, Mr. Garner, who testified that the towing agreement was his "livelihood", seizes upon on the Court's statement in that case that "once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood," id. at 1589, to attempt to persuade me that I should follow Bell and find a constitutional entitlement in this case.
I see no analogy that can been drawn between Bell and the facts of this case. If Mr. Garner's state salvor's license had been suspended or revoked, I would be inclined to agree that Bell would apply. However, granting every possible favorable inference to the non-moving party, Mr. Garner had, at best, nothing more than a garden variety contract
with the township and not a constitutionally protected entitlement; therefore, the termination of the agreement, at most, could give rise to a claim for breach and not for deprivation of a constitutional right.
Indeed, this procedural due process claim trivializes the protections extended by the Constitution. Mr. Garner shares responsibility with the moving defendants for any losses suffered by his business during the brief interlude during which his towing privileges were suspended. He admitted that he refused Chief Hughes' offer to restore his towing privileges four days after they were terminated and that he could not recall whether he was the township's designated tower during the intervening four days. Moreover, the towing privileges were restored on March 24, 1988, one month after being terminated, after Mr. Garner made a formal request for reinstatement as a township towing agent. Therefore, I will grant defendants' motion for summary judgment as to Count II of plaintiff's second amended complaint.
E. Mr. Garner cannot maintain a Section 1983 claim for "abuse of process/malicious prosecution" against defendants for initiating and conducting a grand jury investigation of his business operations because he has not identified any facts establishing any process such as arrest or the filing of criminal charges that deprived him of a constitutionally protected liberty interest without due process of law.
Finally, both Counts I and III of plaintiff's complaint apparently allege that defendants' abuse of process violated Mr. Garner's constitutionally protected rights. I find that Mr. Garner has not stated a cognizable Section 1983 "malicious prosecution/abuse of process" claim as alleged in the second amended complaint.
Plaintiff is correct that viable actions for malicious prosecution and malicious abuse of process can be maintained under Section 1983. See Losch v. Borough of Parkesburg, 736 F.2d 903, 907-08 (3rd Cir. 1984); Jennings v. Shuman, 567 F.2d 1213, 1220 (3rd Cir. 1977); Brown v. Johnston, 675 F. Supp. 287 (W.D.Pa. 1987). "State tort claims do not necessarily constitute a claim under § 1983 but state law torts for false arrest, abuse of process, and malicious prosecution may under some circumstances also provide the basis for a claim under the section." Mines v. Kahle, 557 F. Supp. 1030, 1039 n. 5 (W.D.Pa. 1983) (The Third Circuit's decision in Kulwicki v. Dawson, 969 F.2d 1454 (3rd Cir. 1992), disagreed with the Mines decision on the issue of absolute immunity.)
One commentator has noted, "by now it is abundantly clear that common law torts committed by local governments or government employees do not, on that basis alone, constitute Fourteenth Amendment violations actionable under § 1983. Thus, strictly speaking, it is incorrect to talk about a malicious prosecution or abuse of process action premised solely on state tort law elements. Rather, what must be identified in every § 1983 case, including these, is the constitutional provision allegedly violated." S. Nahmod, Civil Rights and Civil Liberties Litigation § 3.15 (3rd ed. 1991).
Plaintiff has correctly cited Losch v. Borough of Parkesburg, 736 F.2d 903 (3rd Cir. 1984), as authority that a malicious prosecution claim is actionable under Section 1983. In Losch, the district justice dismissed criminal charges filed against plaintiff. The court held (1) that "the filing of criminal charges without probable cause and for reasons of personal animosity is actionable under § 1983" and (2) that the filing of criminal charges to penalize the plaintiff for exercising his First Amendment right to criticize the performance of public officials was a cognizable constitutional deprivation. Id. at 907-08.
In Jennings v. Shuman, 567 F.2d 1213, 1218 (3rd Cir. 1977), the Third Circuit held that abuse of process was actionable under Section 1983 in the context of a grand jury investigation where the defendants made extortion demands on plaintiff after initiating process against him. The court found that plaintiff's constitutionally protected liberty interest was violated by the defendants' conspiracy to arrest him pursuant to a falsely sworn criminal complaint in order to effectuate the extortion: "Such deprivations without [procedural] due process state an injury actionable under section 1983." Id. at 1220.
Viewing the facts in the light most favorable to Mr. Garner, there is no dispute that, at the very least, Mr. Garner's business operations were the subject of the investigation despite the testimony of he Bucks County detectives that he was not the "primary target" of the grand jury investigation. Nonetheless, his claim fails for two reasons.
First, the "process" against Mr. Garner consisted of one interview, with his attorney present, and the production of his business records pursuant to a subpoena. Unlike the plaintiff who stated a viable Section 1983 malicious prosecution claim in Losch, there was no dismissal of a criminal complaint against Mr. Garner. Moreover, unlike the plaintiff who stated a viable Section 1983 abuse of process claim in Jennings, no criminal charges were ever brought against Mr. Garner and he was never arrested.
Second, Mr. Garner has failed to establish that he was deprived of a constitutionally protected interest by the investigation. At best, Mr. Garner makes an untenable claim that the grand jury investigation deprived him of a liberty interest in his reputation. (See response to the Bucks County defendants' motion for summary judgment at p. 20 and to Chief Hughes' motion for summary judgment at p. 13.)
Because Mr. Garner has failed to identify any facts establishing any violation or deprivation by the grand jury investigation of a constitutionally protected liberty interest invoking the due process clause, I will grant defendants' motions for summary judgment as to Count I, in so far as it states a Section 1983 claim for "malicious prosecution/abuse of process", and Count III of plaintiff's second amended complaint.
For the foregoing reasons, I will grant the summary judgment motions of the Wrightstown defendants, Chief Hughes, and the Bucks County defendants and enter judgment against plaintiff and in favor of defendants on all Section 1983 claims against defendants set forth in plaintiff's second amended complaint. Pursuant to 28 U.S.C § 1367(c)(3), I decline to exercise supplemental jurisdiction over plaintiff's state law claims alleging violations of plaintiff's rights under the Pennsylvania state constitution and dismiss Count IV of plaintiff's second amended complaint without prejudice to his right to re-file in the state court. An appropriate order follows.
AND NOW, this 16th day of April, 1993, upon consideration of the defendants' motions for summary judgment and plaintiff's responses thereto and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1. the motion for summary judgment of defendants Wrightstown Township, Board of Supervisors of Wrightstown Township, Eric Curtis, Chester Poganowski, Ken Cronlund, George Donat, and the Wrightstown Township Police Department is granted and judgment is entered in favor of defendants and against plaintiff on all Section 1983 claims set forth against defendants in the second amended complaint;
2. the motion for summary judgment of defendant Walter Hughes is granted and judgment is entered in favor of defendant and against plaintiff on all Section 1983 claims set forth against defendant in the second amended complaint;
3. the motion for summary judgment of defendants Alan Rubenstein, Dale Reichley, William Brosha, Harry Armitage, and the Bucks County District Attorney's Office is granted and judgment is entered in favor of defendants and against plaintiff on all Section 1983 claims set forth against defendants in the second amended complaint.
Pursuant to 28 U.S.C § 1367(c)(3), I decline to exercise supplemental jurisdiction over any state law claims and dismiss Count IV of the second amended complaint without prejudice to his right to file an action for these claims in state court. [See 28 U.S.C. § 1367(d), that the claim should be filed in the state court within thirty (30) days.]
ANITA B. BRODY, J.
Date: April 16, 1993.