United States District Court, M.D. Pennsylvania
September 22, 2005.
LANCE A. ZEGLEN, Plaintiff,
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
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.
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
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.
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 are too temporally remote from
the alleged protected speech to state a cause of action. We will
address these issues in seriatim
A. Prosecutorial Immunity
Attorney General Pappert argues that the Magistrate erred in
denying his motion to dismiss based on prosecutorial immunity.
The sole factual allegation against Pappert in the Complaint is
that he ordered Assistant Attorney General Tom O'Hara to initiate
charges against Zenglen. The Magistrate interpreted the Complaint
to additionally allege that Attorney General Pappert "acted
behind the scenes to influence the PSP administration to take
adverse personnel actions against the Plaintiff" and "acted
entirely outside the scope of his prosecutorial discretion in
influencing PSP administration to take retaliatory action against
the plaintiff by leveling employment sanctions against him."
(Report & Recommendation 21). Considering the plaintiff's briefs
and the Complaint on the whole, the Magistrate misinterpreted the
allegations against Attorney General Pappert.
The Complaint presents one factual allegation regarding
Pappert, and repeats it three times. "[T]he PSP went to Michael
Fisher and Gerald Pappert in the Attorney General's office to encourage the Attorney General to prosecute the case. . . .
Later, Pappert ordered O'Hara to prosecute the case." (Compl. ¶
32-33). Later, it again focuses on the decision to prosecute.
"After Zenglen was found not guilty in a court of law in January
2004, where he was prosecuted only after Pappert, at Miller's
request, ordered O'Hara to prosecute the plaintiff." (Compl. ¶
41). The complaint repeats this factual allegation a third time.
"It was at that time that the plaintiff learned that the
defendant Pappert had personally ordered O'Hara to prosecute
plaintiff." (Compl. ¶ 42). These are the sole factual allegations
against Pappert, and each one references the same decision to
order O'Hara to prosecute. Based on this one incident, Zenglen
advances a retaliation and a malicious prosecution claim against
Pappert. First, the retaliation claim states:
The defendants Pappert, Miller, Evanko, Transue,
Carusone, and Brown have unlawfully worked together
to retaliate against plaintiff by bringing false and
malicious charges and conducting baseless unfounded
harassing and intimidating searches and
investigations into the plaintiff's affairs and by
assessing unfounded and unjustified punishments and
disciplines against plaintiff because he spoke out on
matters of public concern in the past.
(Compl. ¶ 46).
The malicious prosecution count alleges "the defendants above
named all participated in efforts as specified in the complaint
above to falsely investigate and bring charges against plaintiff
which were unsupported and unsupportable and which were designed
to retaliate against the plaintiff." (Compl. ¶ 48).
We do not read Counts I and II to allege that Pappert committed
any action other than ordering O'Hara to prosecute. Pappert is
not identified as participating in any employment discipline, or
any investigation into Zenglen. He is referenced only three
times, each with regard to the order. Furthermore, in his brief in opposition to
the defendants' objections, Zenglen succinctly clarified his
claims against Pappert. In opposing absolute immunity, he said,
"The issue is that Pappert ordered a subordinate to initiate a
prosecution, i.e., he was involved with working `behind the
scenes' to persecute Zenglen in cooperation with the PSP
defendants."*fn5 (Pl. Br. in Opp. to Def. Obj. 4). Thus, we
do not read the Complaint to allege that Pappert retaliated
against O'Hara or worked in conjunction with the other defendants
in any way other than by ordering O'Hara to initiate prosecution.
We find that Pappert is entitled to qualified immunity for this
act. A prosecutor has absolute immunity for all actions performed
in a quasi-judicial role, including the decision to prosecute.
Kulwicki v. Dawson, 969 F.2d 1454, 1463-64 (3d Cir. 1992). The
prosecutor's motive for filing a charge, even if malicious, is
irrelevant to the absolute immunity analysis. Id. A prosecutor
does not, however, have absolute immunity for actions taken in an
administrative capacity. Carter v. Philadelphia, 181 F.3d 339,
356 (3d Cir. 1999). Prosecutors have only qualified immunity for
administrative actions. Id.
Zenglen argues that absolute immunity does not protect
Pappert's order because this was an administrative, rather than
prosecutorial, action. He argues that had Pappert decided to
prosecute the case himself, he would be absolutely immune, but
the act of ordering a subordinate is administrative. Zenglen
mischaracterizes his own complaint. On the one hand, he seeks to base liability on Pappert's retaliatory decision to
prosecute, but on the other he seeks to circumvent prosecutorial
immunity by arguing that his complaint seeks liability based on
the administrative assignment of the case to O'Hara. We find this
argument specious. The Complaint does not allege that the act of
assigning the case harmed him. Indeed, had Pappert assigned the
case to O'Hara with instructions not to prosecute, Zenglen would
certainly have no malicious prosecution or retaliation claim
against him. Rather, Zenglen seeks damages for Pappert's decision
to prosecute through O'Hara, and it is this decision that
absolute immunity protects.
In Kulwicki, prosecutor John Dawson sought immunity for a
malicious prosecution claim even though he did not file the
charges himself, but rather ordered his subordinate Jack
Loutzenhiser to do so. Kulwicki, 969 F.2d at 1459. In granting
absolute immunity, the court explained, "Dawson was performing a
core prosecutorial function in causing Loutzenhiser to file
criminal charges against Kulwicki." Id. at 1464. Furthermore,
the decision to order a subordinate to prosecute is easily
distinguishable from administrative acts. For example, in
Carter, the plaintiff's claim against Philadelphia District
Attorney was "premised on their failure as administrators to
establish training, supervision and discipline policies."
Carter, 181 F.3d at 343. Thus, the court found absolute
immunity inapplicable because liability was not grounded in the
decision to prosecute, but was based on purely administrative
Here, however, we find that the sole allegation in the
complaint against Pappert is that he ordered O'Hara to prosecute
Zenglen. As the decision to prosecute is entitled to absolute
immunity, we will dismiss this allegation against Pappert with
prejudice because any amendment would be futile. Alston v. Parker, 363 F.3d 229, 235
(3d Cir. 2004) ("We have held that even when a plaintiff does not
seek leave to amend, if a complaint is vulnerable to 12(b)(6)
dismissal, a District Court must permit a curative amendment,
unless an amendment would be inequitable or futile."). We dismiss
without prejudice to Zenglen's ability to file an amended
complaint basing Pappert's liability on acts other than his order
to O'Hara to prosecute, insofar as these other acts are
B. Statute of Limitations
The defendants next argue that the Magistrate erred when he
denied the motion to dismiss the retaliatory actions that took
place more than two years prior to the initiation of the
complaint. We agree.
"While the language of FED.R.CIV.P. 8(c) indicates that a
statute of limitations defense cannot be used in the context of a
Rule 12(b)(6) motion to dismiss, an exception is made where the
complaint facially shows noncompliance with the limitations
period and the affirmative defense clearly appears on the face of
the pleading." Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380, 1385 n. 1 (3d Cir. 1994). For § 1983 claims, the
appropriate statute of limitations is the state's statute of
limitations for personal injury. Sameric v. Philadelphia,
142 F.3d 582, 599 (3d Cir. 1998). Pennsylvania's personal injury
statute of limitations is two years. Id. As Zenglen filed the
instant suit on August 31, 2004, events occurring before August
31, 2002 are time barred. From the face of the Complaint, many of
the allegedly retaliatory actions occurred before this date.
Zenglen, however, relies on the continuing violations doctrine to
support liability for otherwise time-barred incidents. "[T]he continuing violations doctrine is an `equitable exception to the
timely filing requirement." Cowell v. Palmer Township,
263 F.3d 286, 292 (3d Cir. 2001) (applying the continuing violations
doctrine to a § 1983 claim). The Magistrate relied on Cowell to
hold that the continuing violations theory applied to Zenglen's
We find it necessary to reevaluate Cowell in light of the
Supreme Court's subsequent decision in National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101 (2002). There, the Court
addressed the continuing violation doctrine in the context of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.
Id. at 104. The plaintiff claimed that "he had been subjected
to discrete discriminatory acts and retaliatory acts and had
experienced a racially hostile work environment throughout his
employment." Id. Some of the allegedly discriminatory and
retaliatory events occurred before the timely filing period, but
others occurred within the timely period. Id. at 106. The
defendants filed a motion to dismiss, arguing that the events
occurring before the timely filing period were barred by the
statute of limitations. Id. The Court explained:
[D]iscrete discriminatory acts are not actionable if
time barred, even when they are related to acts
alleged in timely filed charges. Each discrete
discriminatory act starts a new clock for filing
charges alleging that act. The charge, therefore,
must be filed within the [statutory] time period
after the discrete discriminatory act occurred.
Id. at 113.
The Court reasoned that "each incident of discrimination and
each retaliatory adverse employment decision constitutes a
separate actionable `unlawful employment practice.' [The
plaintiff] can only file a charge to cover discrete acts that
`occurred' within the appropriate time period." Id. at 114.
We find that Morgan controls our analysis of Zenglen's § 1983
retaliation claim. See Hildebrandt v. Illinois Dept. of
Natural Resources, 347 F.3d 1014, 1036 (7th Cir. 2004) (finding
that the Morgan analysis applies to § 1983 claims); Sharpe v.
Cureton, 319 F.3d 259, 267-68 (6th Cir. 2003) (finding discrete
retaliatory acts occurring before the appropriate time period
barred and holding that they could not serve as the basis for
liability for a First Amendment § 1983 retaliation claim even if
they were sufficiently related to actions occurring within the
appropriate time period); RK Ventures, Inc. v. City of Seattle,
307 F.3d 1045, 1061 (9th Cir. 2002) (applying Morgan to a §
1983 equal protection claim and holding that discrete actions
occurring prior to the limitations may not serve as a basis for
liability even if they are related to acts alleged in timely
In Sharpe, the plaintiffs were firefighters who supported a
losing candidate in a mayoral campaign. 319 F.3d at 262. Shortly
after the election, the winning candidate transferred the
plaintiffs to less desirable locations within the fire
department. Id. at 262-63. Additionally, the plaintiffs were
denied merit pay for the next two years, they were denied bonus
pay, and the mayor "refused to consider a reasonable request to
modify their pension plans." Id. at 263. The plaintiffs filed
suit under section 1983, alleging that the defendants committed
these acts in retaliation for speech protected by the First
Amendment. Id. The defendants argued that the transfers, which
occurred before the statutory timely period, were barred even
though the remaining retaliatory acts occurred within the time
period. Id. at 265-66. The plaintiffs relied on the continuing
violation doctrine to argue that the transfers were indeed actionable. Id. at 267. Applying Morgan, the court
rejected the continuing violation doctrine because the
plaintiff's transfers were discrete acts "as they were made aware
of the retaliatory transfers on specific dates [before the timely
period]." Id. at 268.
Similarly, in Harry v. Philadelphia, No.CIV.A.03-661, 2004 WL
1387319, at *10-11 (E.D. Pa. 2004), the court applied the
Morgan analysis to a § 1983 First Amendment claim. The
plaintiff claimed that the defendants retaliated against him by
preventing him from taking examinations necessary to obtain a
promotion and by excluding him for the relevant promotion
eligibility lists. Id. at *10. The court found these actions
equivalent to a retaliatory failure to promote. Id. at *11.
Thus, it concluded that the retaliatory actions were discrete
retaliatory incidents and, although related to claims within the
statutory period, were time barred. Id.
Zenglen alleges that the defendants individually deprived him
of his First Amendment rights and conspired to deprive him of his
First Amendment rights. He alleges he suffered four adverse
employment actions prior to August 31, 2002. First, Evanko
investigated him for two years sometime between 1996 and
2000.*fn6 (Compl. ¶ 22-23). Next, the PSP investigated him again in the summer of 2000 and placed a number of restrictions
on him on June 13, 2000. (Compl. ¶ 34-35). In early 2001, the PSP
"higher-ups" reinvestigated a claim. (Compl. ¶ 25-27). On May 9,
2001, Zenglen was suspended for speaking with a peer counselor.
(Compl. ¶ 36). O'Hara initiated a prosecution in compliance with
Pappert's orders sometime either in or before August
2002.*fn7 (Compl. ¶ 41-42).
Plaintiff suffered two additional adverse employment actions,
although it is either unclear from the face of the complaint when
they happened or they clearly occurred within the limitations
period. Jeffrey Miller investigated Zenglen sometime after
November 2001. (Compl. ¶ 34-35). On February 9, 2004, Transue,
Titler, and Miller increased Zenglen's employment restrictions.
(Compl. ¶ 41).
Thus, the Complaint lists a series of discrete adverse
employment actions, committed by various different defendants,
under the supervision of different defendants, and each
potentially giving rise to its own cause of action. Plaintiff was
aware of the restrictions and the suspension when they were
implemented. Furthermore, he was aware that the investigations
were retaliatory in the summer of 2000, long before the
appropriate time period. Plaintiff connects each of these discrete actions with a
conspiracy allegation. For the purposes of a civil conspiracy
claim, overt actions occurring prior to the timely period are
barred by the statute of limitations. In a civil conspiracy
claim, each overt act causing damage is the basis for liability,
and a conspiracy with no damaging overt act is not actionable.
See Beck v. Prupis, 529 U.S. 494, 501-03 (2000). The statue
of limitations "period runs from each overt act causing damage. . . .
For each act causing injury, a claimant must seek redress
within the prescribed limitations period. . . . In the civil
case, actual injury is the focal point, not the illegal agreement
per se." Wells v. Rockefeller, 728 F.2d 209, 217 (3d Cir.
1984); see also Ammlung v. City of Chester, 494 F.2d 811,
814-15 (3d Cir. 1974) (noting that the statute of limitations for
civil rights conspiracy claims pursuant to § 1983 runs from each
Therefore, we hold that the discrete retaliatory actions
occurring prior to August 31, 2002 are barred by the statute of
limitations and Zenglen may not recover damages caused by these
acts. Accordingly, we will dismiss without prejudice the portion
of Zenglen's retaliation claim based on these actions.*fn8
Defendants argue that the Complaint does not state a
retaliation claim because the lapse of time between the protected
speech and the retaliatory action is too great to support the
causation element. We find that despite the wide time range,
Zenglen could potentially offer some facts to prove causation.
See Brennan v. Norton, 350 F.3d 399, 420 (3d Cir. 2003) (finding that a significant delay between the protected speech
and the retaliation does not prevent a plaintiff from
establishing the required nexus where there is "evidence of
continuing hostility to connect events that would not otherwise
appear to be related to each other") (citing Abramson v. William
Paterson College, 260 F.3d 265, 288 (3d Cir. 2001)). For
example, one of the defendants may admit that their actions were
in retaliation for his protected speech. Furthermore, even though
time-barred retaliatory actions cannot serve as a basis for
liability, they are relevant to establish that timely incidents
were retaliatory. Morgan, 536 U.S. at 113. Accordingly, we find
that the delay between the protected speech and the timely
retaliatory incidents does not preclude Zenglen from producing
other facts sufficient to support the causation element of his
claim. Therefore, we will deny the motion to dismiss Zenglen's
We hold that Defendant Pappert is entitled to prosecutorial
immunity for claims for damages based on his order to O'Hara to
prosecute Zenglen. This portion of the Complaint is dismissed
with prejudice because amendment would be futile. We dismiss
without prejudice to Plaintiff's ability to file an amended
complaint basing Pappert's liability on some other action. We
dismiss without prejudice the portion of the complaint seeking to
base liability on retaliatory adverse employment actions
occurring before August 31, 2002. We deny the motion to fully
dismiss the retaliation claim.
For those claims we dismiss without prejudice, Zenglen may
proceed as described in the attached order. An appropriate order
AND NOW, to wit, this 22nd day of September 2005, Defendants'
objections to Magistrate Mannion's Report and Recommendation
(Doc. 18) are SUSTAINED in part and OVERRULED in part. It is
hereby ORDERED that:
1) The portion of the complaint seeking damages for
Defendant Gerald Pappert's order to a subordinate to
prosecute Plaintiff is DISMISSED with prejudice.
2) The portion of the complaint seeking damages for
Defendants' retaliatory actions occurring before
August 31, 2002 are DISMISSED without prejudice.
3) Defendants' motion to dismiss Plaintiff's
retaliation claim because he cannot establish
causation is DENIED.
4) For those claims dismissed without prejudice,
Plaintiff may file an amended complaint within
fifteen days of the issue of this Order. If Plaintiff
does not desire to amend, he may file a notice of his
intention and we will order these claims dismissed
with prejudice. Should Plaintiff fail to file a
notice or an amended complaint within fifteen days,
these claims will be dismissed with prejudice and the
action will proceed with the Complaint as filed.
5) This case is remanded to the Magistrate to conduct
further proceedings consistent with this opinion.
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