United States District Court, M.D. Pennsylvania
September 28, 2005.
DAVID F. McANDREW, and MARGARET McANDREW, his wife Plaintiffs,
BOROUGH OF JIM THORPE, BARRY ANDREW, Individually and in his Official Capacity as Police Chief, JOSEPH SCHATZ, Individually and in his Official Capacity as Detective Defendants.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
This matter is before the Court on Defendants' Motion for
summary judgment. (Dkt. Entry 23). Plaintiff David F. McAndrew
("McAndrew") commenced this action on December 13, 2001, alleging
that Defendants Barry Andrew, the Chief of Police of the Borough
of Jim Thorpe, Joseph Schatz, a detective with the Jim Thorpe
police force, and the Borough of Jim Thorpe ("the Borough")
violated his civil rights under 42 U.S.C. § 1983 by charging him
with Open Lewdness and Disorderly Conduct and prosecuting him on
those charges. McAndrew also alleges that Andrew and Schatz
committed the state-law torts of malicious prosecution and
intentional infliction of emotional distress. Additionally,
Plaintiff Margaret McAndrew, David's wife, claims loss of
consortium against all the defendants.
This Court is persuaded that the Defendants are entitled to
summary judgment on Plaintiff's § 1983 claim because Plaintiff failed to present
evidence showing he was seized under the Fourth Amendment. The
Court declines supplemental jurisdiction over McAndrew's
remaining state-law claims and his wife's loss of consortium
claim. Thus, they will be dismissed, without prejudice.
McAndrew was teaching as a reading specialist at the St. Joseph
Regional Academy on the afternoon of October 30, 2000. (Def's
Statement of Uncontested Facts ("S.U.F.") at ¶¶ 1, 9.) The school
principal, Sister Joann Marie Aumand, accused McAndrew of lewd
and indecent behavior in his classroom and reported this to the
Jim Thorpe Police Department.*fn1 (Id. at ¶ 1.) Police
Chief Andrew assigned Detective Schatz to investigate the
accusation. (Id. at ¶ 4.)
Following his investigation, Detective Schatz charged McAndrew
on November 9, 2000, with Open Lewdness in violation of 18 Pa.
Cons. Stat. Ann. § 5901, and Disorderly Conduct in violation of
18 Pa. Cons. Stat. Ann. § 5503(a)(3).*fn2 (Id. at Ex. H.)
McAndrew alleges that Police Chief Andrew and Detective Schatz "knew or should have known that
there was no probable cause" for the charges. (Pl.'s Compl. at ¶
15.) He also claims the charges were brought maliciously. (Id.
at ¶¶ 16-20.)
McAndrew was served a summons by mail. (Def.'s Supplemental Br.
In Supp. at 3.) Pursuant to the Pennsylvania Rules of Criminal
Procedures, he was directed to appear at a preliminary hearing on
the matter. (Id. at Ex. D.) He was further ordered to make an
appearance at the police department for fingerprint
identification at some point before the hearing. (Pl.'s
Supplemental Br. In Opp. at Ex. C.) McAndrew was released on his
own recognizance until his trial proceedings. (Def.'s
Supplemental Br. In Supp. at Ex. B.) He was found not guilty at
trial. (Def's S.U.F. at ¶ 32.)
As a result of the litigation, however, McAndrew alleges that
he was suspended with pay by the Jim Thorpe School District, that
his reputation was damaged by unfavorable publicity, and that he
suffered mental distress, necessitating psychiatric care. (Pl.'s
Compl. at ¶¶ 21, 26-28.) McAndrew filed the complaint in this
matter on December 13, 2001. (Dkt. Entry 1.) The Defendants'
Motion to dismiss was denied on July 23, 2003. (Dkt. Entry 16.)
The pending motion for summary judgment was filed on March 12,
2004. (Dkt. Entry 23.) The motion has been fully briefed and is
now ripe for decision. DISCUSSION
A. Standard of Review
Summary judgment should be granted when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FEDERAL. R. CIV.
P. 56(c). A fact is "material" if proof of its existence or
nonexistence might affect the outcome of the suit under the
applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). An issue is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
All doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party, and the entire
record must be examined in the light most favorable to nonmoving
party. Cont'l Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.
1982). The moving party has the burden of showing the absence of
a genuine issue of material fact, but the nonmoving party must
present affirmative evidence from which a jury might return a
verdict in the nonmoving party's favor. Anderson,
477 U.S. at 256-57. Merely conclusory allegations taken from the pleadings
are insufficient to withstand a motion for summary judgment.
Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir.
1990). Summary judgment is to be entered "after adequate time for
discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
B. The Section 1983 Claim
McAndrew uses 42 U.S.C. § 1983 as a vehicle to bring his civil
rights claim arising from the alleged malicious prosecution. To
state a claim under § 1983, a plaintiff must allege a violation
of rights secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was committed
by a person acting under the color of state law.*fn3
Dibella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir.
2005); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.
1995). A plaintiff claiming a civil rights violation due to
malicious prosecution must show that he suffered a Fourth
Amendment seizure during the prosecution.*fn4 See
Dibella, 407 F.3d at 601-03; Bristow v. Clevenger,
80 F. Supp. 2d 421, 429 (M.D. Pa. 2000); Williams v. Fedor,
69 F. Supp. 2d 649, 669-70 (M.D. Pa. 1999). In addition, a plaintiff must prove the elements of malicious prosecution.*fn5 See
Dibella, 407 F.3d at 601; Gallo v. City of Philadelphia,
161 F.3d 217, 221 (3d Cir. 1998).
In previously denying the Defendants' Motion to dismiss, this
Court relied on cases that interpreted Gallo as holding that a
defendant's obligation to appear in court and answer charges
constituted a Fourth Amendment seizure. (Dkt. Entry 16, at 8)
("While a mere summons and requirement to attend a preliminary
hearing is not a seizure, the requirement that McAndrew appear in
court at trial is a sufficient restraint on liberty to constitute
a Fourth Amendment seizure.") However, Our Court of Appeals has
since held that appearance at trial does not qualify as a Fourth
Amendment seizure. Dibella, 407 F.3d at 603. Instead,
"[p]retrial custody and some onerous types of pretrial,
non-custodial restrictions constitute a Fourth Amendment
In Dibella, the plaintiffs were issued a summons but were not
arrested. They never posted bail, had no travel prohibitions, and
were not required to contact Pretrial Services. Id. However,
they did have to attend multiple trial proceedings. Id. at 600.
The court held that this did not constitute seizure under the
Fourth Amendment. Id. at 603. Similarly, Plaintiff here was not
arrested, but only received a summons by mail. He did not post a
bond but was released on his own recognizance. He did not have
any travel restrictions or periodic duty to report to pretrial services. As such, he was not subjected to the type of
pretrial restrictions that implicate the Fourth Amendment.
Compare with Gallo, 161 F.3d at 222-25 (Plaintiff who was
arrested and required to post a $10,000 bond, required to report
to pretrial services on a periodic basis, and was subjected to
travel restrictions was found seized).
Nonetheless, Plaintiff argues that he was seized before trial
because he was required to appear for fingerprint identification
and a preliminary hearing. These demands are better understood as
relating to his trial, than as restrictions on his pretrial
liberty. Indeed, the preliminary hearing was mainly for
McAndrew's benefit, as it provided an opportunity to challenge
his charge prior to a full trial. PA. R. CRIM. PROC. 542(D) ("If
a prima facie case of defendant's guilt is not established . . .
the issuing authority shall discharge the defendant").
Moreover, McAndrew was given discretion as to when he would be
In Bristow, this Court held that a plaintiff who was
fingerprinted, photographed, and had to attend a pretrial
conference was not seized. 80 F. Supp. 2d at 430. Likewise, this
Court finds that McAndrew was not seized, as he was not arrested
nor subjected to onerous non-custodial, pretrial restrictions.
Because Plaintiff has failed to show that he suffered a Fourth
Amendment seizure, his malicious prosecution claim under § 1983
must fail as a matter of law.
C. State-Law Claims
Where, as here, dismissal of a federal law claim is warranted,
this Court may decline to exercise supplemental jurisdiction over
pendent state-law claims. See 28 U.S.C. 1367(c)(3); Queen City Pizza, Inc. v. Domino's Pizza, Inc., 124 F.3d 430,
444 (3d Cir. 1997); Stehney v. Perry, 101 F.3d 925, 939 (3d
Cir. 1996). Finding no compelling reason to retain jurisdiction
over McAndrew's state law claims and no prejudice to McAndrew
from their dismissal, this Court will decline to exercise
supplemental jurisdiction over McAndrew's state-law claims and
those claims will be dismissed without prejudice.
D. Ms. McAndrew's Loss of Consortium Claim
Ms. McAndrew's claim for loss of consortium are derivative of
her husband's claims. See Darr Constr. Co. v. Workers'
Compensation Appeals Bd. (Walker), 715 A.2d 1075, 1079-80 (Pa.
1998). Because this Court has dismissed her husband's claims, the
loss of consortium claim no longer survives in this Court.
For the reasons set forth above, the Defendants are granted
summary judgment on the Plaintiff's § 1983 complaint. The
remaining claims will be dismissed, without prejudice. ORDER
NOW, THIS 28th DAY OF SEPTEMBER, 2005, for the reasons set
forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. Defendants' Motion for Summary Judgment (Dkt.
Entry 23) is GRANTED.
2. Plaintiffs' state-law claims for malicious
prosecution, intentional infliction of emotional
distress, and loss of consortium are DISMISSED
WITHOUT PREJUDICE for lack of subject matter
3. The Clerk of Court is directed to enter judgment
in favor of Defendants on Plaintiff's civil rights
claim and to mark this matter CLOSED.
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