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ZEGLEN v. PAPPERT

September 22, 2005.

LANCE A. ZEGLEN, Plaintiff,
v.
GERALD PAPPERT, PAUL EVANKO, JEFFREY MILLER, CYNTHIA TRANSUE, JOHN DUBY, FARZAD SHARIF, BARRY TITLER, CHRISTOPHER CARUSONE, CHRISTOPHER SAITES, RICK BROWN, MICHAEL PATRICK, GARRETT RAIN, and BROOKE QUICK, Defendants.



The opinion of the court was delivered by: JAMES MUNLEY, District Judge

MEMORANDUM

Presently before the Court are Defendants' joint objections to Magistrate Judge Malachy E. Mannion's Report and Recommendation, which suggests that we deny their Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. Defendants' objections have been fully briefed and are ripe for disposition. For the following reasons we will grant the objections.

I. Background*fn1

  Plaintiff Lance Zenglen is a Pennsylvania State Police ("PSP") Trooper. Defendant Gerald Pappert was a Deputy Attorney General for the Commonwealth of Pennsylvania at the time relevant to the Complaint. Defendant Paul Evanko is the former Commissioner of the PSP, and Jeffrey Miller is the present commissioner. Defendant Cynthia Transue is the Deputy Commissioner of Administration for the PSP. Defendants John Duby, Farzad Sharif, Barry Titler, Rick Brown, Nicolas Saites, Michael Patrick, and Garrett Rain are PSP officers. Defendant Christopher Carusone was an attorney for the PSP. Defendant Brooke Quick was a witness in a PSP investigation into Zenglen's activities.

  In 1996, Zenglen publicly lobbied against the PSP's plan to disband Interstate Troop S. He also instructed his fellow troopers to distribute tickets in a manner that infuriated Commissioner Evanko. In retaliation, Defendant Evanko filed an Internal Affairs Division ("IAD") complaint against Zenglen. This investigation lasted two years. In the summer of 2000, Zenglen learned that Evanko intended to retaliate against him and that he and the entire Department "were out to get him." (Compl. ¶ 24).

  Also in the summer of 2000, another internal investigation revealed that a young woman named Brooke Quick claimed she had an affair with Zenglen when she was only sixteen. Even though the accusations were untrue, on June 13, 2000 the PSP restricted Zenglen to barracks duty, ordered him not to gather witnesses, and instructed him not to appear at, or near, a local mall. During an investigation into Quick's accusations, some of the defendants obtained a search warrant, searched Zenglen's home, cars, boat, work locker, and computer. They also conducted DNA tests and wiretapped his phone.

  The next incident began in January 2001, when Robert Morgan accused Zenglen of kissing his fifteen year-old stepdaughter and giving her beer. After an initial investigation established the accusations were meritless, PSP "higher-ups" ordered a reinvestigation. On May 9, 2001, Plaintiff was suspended after he sought help from his PSP peer counselor. In August 2001, Lt. Gilbert of the PSP told Zenglen that the IAD's reinvestigation was retaliatory. That same month, the PSP sought approval to proceed with charges from Pike County District Attorney Douglas Jacobs. He declined to prosecute and referred the matter to the Pennsylvania Attorney General's office.

  Tom O'Hara of the Attorney General's office declined to prosecute the case in November 2001, but Defendant Jeffrey Miller continued to investigate Zenglen's activities. At some point thereafter, Defendant Pappert ordered O'Hara to prosecute the case, and O'Hara complied. In January 2004, Zenglen was acquitted. Thereafter, Defendants Transue and Titler increased the restrictions on Zenglen's travel and speech.

  II. Standard

  When a 12(b)(6) motion is filed, the sufficiency of a complaint's allegations are tested. The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). "A court should not dismiss a complaint under Rule 12(b)(6) for failure to state a claim for relief `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.'" Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 559 (3d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). III. Discussion

  On August 31, 2004, Plaintiff filed a Complaint advancing three counts. Count I is a section 42 U.S.C. § 1983 claim alleging that Defendants Miller, Evanko, Transue, Carusone, and Brown conspired to retaliate against him for protected speech in violation of the First Amendment. Count II advances a section § 1983 malicious prosecution claim against every defendant. Count III presents pendent state law defamation and false light claims against Defendant Brooke Quick.

  Defendants*fn2 filed a joint motion to dismiss Counts I and II pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn3 Regarding Count I, they argued that many of the retaliatory actions were time barred and those actions that were not time barred are too temporally remote from the protected speech to constitute retaliation. They argued that Count II should be dismissed because the Complaint does not assert that Zenglen suffered a deprivation of liberty necessary to give rise to a malicious prosecution claim. Finally, they argued that Defendant Pappert is entitled to prosecutorial immunity.

  Magistrate Mannion issued a Report and Recommendation proposing that we deny Defendants' motion to dismiss in its entirety. Defendants now object to the Magistrate's analysis with regard to Count I and Defendant Pappert's prosecutorial immunity.*fn4 Thus, we have three issues before us: 1) whether Pappert is entitled to prosecutorial immunity; 2) whether some of the alleged retaliatory actions are barred by the statute of limitations; and 3) whether the actionable retaliatory incidents ...


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