The opinion of the court was delivered by: Mitchell, Magistrate Judge
Presently before the Court is a motion to dismiss several counts of the plaintiff's amended complaint submitted by defendants Stephen A. Zappala, Thomas Horton and Frances Laquatra (the "moving defendants"). In their motion, the moving defendants seek the partial dismissal of Count One of the amended complaint to the extent it is based upon defendant Zappala's filing or initiating criminal charges, the partial dismissal of Count Three which arises under 42 U.S.C. § 1985(3), and the dismissal of Counts Four, Seven and Twelve. For reasons discussed below, the partial motion to dismiss filed by defendants Zappala, Horton and Laquatra (Docket No. 28) is granted.
In this unfortunate case of mistaken identity, plaintiffs Charles Kevin Miller, Sr., his wife, Sandra L. Miller, and his daughter, Erica Miller, have filed an amended civil rights complaint against defendants Allegheny County, PA, its Chief Executive Daniel Onorato, its District Attorney Stephen Zappala, Thomas Horton and Frances Laquatra, who are employees of the District Attorney's Office, Ramon Ruston, the Warden of the Allegheny County Jail ("ACJ"), and Thomas Leicht and Ronald Pofi, who are employees of ACJ. This action arises from the alleged illegal arrest and detention of plaintiff Charles Kevin Miller on February 18, 2004 which occurred in the presence of his daughter, plaintiff Erica Miller.
Plaintiff Charles Kevin Miller ("C. Kevin Miller") was employed as a corrections officer at ACJ from 2001 until 2004. A nonparty to this suit, Charles Richard Miller ("C. Richard Miller"), also was employed as a corrections officer at ACJ from 1994 until he was discharged in 2002 for fraternizing with female inmates. According to the plaintiffs, C. Richard Miller is 14 years younger, 50 pounds heavier, and has significantly more hair than plaintiff C. Kevin Miller.
The record shows that in 2002, a grand jury investigated the smuggling of contraband into ACJ. When a witness reported sexual improprieties at ACJ, the grand jury began investigating allegations of sexual assault there. In the fall of 2002, defendant Pofi interviewed nonparty C. Richard Miller, who admitted giving his home phone number to a female inmate on his pod. It appears that nine phone calls were made from ACJ to the home phone number of C.
Richard Miller. As a result, a disciplinary hearing was scheduled by ACJ's Assistant Deputy Warden for nonparty Miller for violating the administrative directive against fraternization.
On January 15, 2004, the grand jury concluded its investigation into whether guards at ACJ were sexually assaulting inmates. This investigation produced numerous leads which were followed up by the District Attorney's Office.
On February 17, 2004, plaintiff C. Kevin Miller was charged with institutional sexual assault for an incident which occurred in 2003. The plaintiffs contend that on February 18, 2004, defendant Pofi informed Corrections Officer Holt that plaintiff C. Kevin Miller was to be arrested later that day for sexual misconduct, and under questioning from Holt, defendant Pofi maintained that C. Kevin Miller was responsible for the alleged sexual misconduct rather than nonparty C. Richard Miller, who was discharged for such acts.
The plaintiffs allege that on February 18, 2004, defendants Horton, Leicht and Laquatra arrived at C. Kevin Miller's home and placed him under arrest in the presence of his daughter, plaintiff Erica Miller, at which time Mr. Miller was handcuffed, transported in a police car to the police station, and handed a card setting forth his Miranda rights. At the police station, Mr. Miller voiced his innocence, and explained that he never worked on a floor with female inmates at ACJ; he stated that the man they were looking for, C. Richard Miller, had been discharged from ACJ for fraternizing with female inmates.
The plaintiffs aver that as a result of Mr. Miller's arrest, a spokesman for the District Attorney's Office indicated that C. Kevin Miller had been charged with institutional sexual assault, after which Mr. Miller was arraigned in the media spotlight, and bail was set at $1,000. Thereafter, defendants Leicht and Horton initiated a conversation with the presiding magistrate, indicating they were unsure of the identification of their suspect. The magistrate then changed Mr. Miller's bond, and he was released on his own recognizance. As Mr. Miller was returning home, defendant Leicht contacted him and asked if he could return to the station to sign a form releasing Allegheny County, ACJ and the District Attorney's Office from liability.
On February 19, 2004, the Pittsburgh Post Gazette and Pittsburgh Tribune-Review published stories that C. Kevin Miller was one of the guards at ACJ charged with institutional sexual assault. On February 25, 2004, police issued a criminal complaint against nonparty C. Richard Miller for institutional sexual assault in incidents occurring from July to September 2002. The plaintiffs assert that on May 12, 2004, at the behest of defendant Horton, District Justice Charles McLaughlin issued an order for the fingerprinting of plaintiff Miller, even though C. Richard Miller had been charged for the same offense. Plaintiff Miller is said to have suffered emotional distress, damage to his reputation and financial loss due to his unfounded detention.
Based on the defendants' complained-of acts, the plaintiffs have filed a twelve-count amended complaint. In Count One, Mr. Miller asserts a claim against all the defendants for violating his rights under 42 U.S.C. § 1983 by allowing, or being deliberately indifferent to such unlawful police practices as illegal seizures and imprisonment, misidentification of criminal suspects, and issuing erroneous warrants. In Count Two, Mr. Miller asserts a claim against defendants Ruston, Horton, Laquatra, Leicht and Pofi for arresting him without probable cause in violation of § 1983. In Count Three, Mr. Miller claims that all the individual defendants entered into an agreement to arrest him without probable cause, deprive him of his liberty and equal protection rights, and conspired amongst themselves to generate media attention for their acts in violation of 42 U.S.C. §§ 1983 and 1985(3). In Count Four, Mr. Miller contends that the individual defendants violated 42 U.S.C. § 1986 by refusing or neglecting to aid in preventing the aforesaid conspiracy. In Count Five, Mr. Miller claims that defendants Ruston, Horton, Laquatra, Leicht and Pofi are liable for false arrest and false imprisonment. In Counts Six and Seven, Mr. Miller asserts that defendants Onorato, Ruston, Horton, Laquatra, Leicht and Pofi engaged in malicious prosecution (Count Six) and are liable for intentional infliction of emotional distress (Count Seven). In Count Eight, Mr. Miller contends that defendants Ruston, Horton, Laquatra, Leicht and Pofi defamed him by issuing a warrant application for a serious criminal charge with reckless disregard for the truth or falsity of the statements contained therein. In Count Nine, defendant Pofi is said to have slandered Mr. Miller by stating to Officer Holt that Miller was rightfully charged with sexual assault. In Count Ten, Mr. Miller claims that defendants Onorato, Ruston, Horton, Laquatra, Leicht and Pofi engaged in a conspiracy to arrest him without probable cause and generate media attention for their acts. In Count Eleven, plaintiff Sandra Miller asserts a claim for loss of consortium. In Count Twelve, plaintiff Erica Miller contends that defendants Ruston, Horton, Laquatra, Leicht and Pofi are liable for intentional infliction of emotional distress for purposefully depriving her father of his liberty interests and making shocking accusations against him in her presence. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367.
In response to the amended complaint, defendants Zappala, Horton and Laquatra have moved to dismiss certain claims against them for failure to state a cognizable claim. Specifically, the moving defendants seek the partial dismissal of Count One of the amended complaint to the extent it is based upon defendant Zappala's filing or initiating criminal charges, the partial dismissal of Count Three which is said to arise under 42 U.S.C. § 1985(3), and the dismissal of Counts Four, Seven and Twelve.*fn1
In reviewing a motion to dismiss, all well-pleaded allegations of the complaint must be accepted as true and viewed in a light most favorable to the non-movant. Estelle v. Gamble, 429 U.S. 97 (1976); Shaev v. Saper, 320 F.3d 373, 375 (3d Cir. 2003).
In Mr. Miller's § 1983 claim against the defendants in Count One, he alleges that by acquiescence or deliberate indifference, the defendants have allowed several unlawful police customs or practices to exist, including subjecting citizens to illegal seizures and imprisonment, engaging in arbitrary prosecution, issuing erroneous criminal warrants, and misidentifying criminal suspects by failing to properly train, supervise or discipline their investigators and corrections officers. Section 1983 imposes liability on any person who, under color of state law, deprives another of any rights secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983.
In moving to partially dismiss Count One, the movants argue that to the extent it is based upon the filing or initiating of criminal charges, defendant Zappala, as the District Attorney for Allegheny County, is absolutely immune from liability. In determining whether a prosecutor is entitled to absolute immunity, the law is clear:
[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are ...