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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." Id.

  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, ...

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