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Pitchford v. Borough of Munhall

November 13, 2007


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Before the Court for disposition are the MOTION TO DISMISS filed by Defendants Borough of Munhall ("Munhall"), Officer James Ilgenfritz ("Ilgenfritz"), Officer Greg Garcia ("Garcia"), Officer Michael Curtain*fn1 ("Curtain"), and Officer Darran Chereb ("Chereb") (Document No. 8), with brief in support (Document No. 9), Plaintiff Kathleen T. Pitchford's ("Pitchford") brief in opposition to the motion to dismiss filed by Munhall, Ilgenfritz, Garcia, Curtain and Chereb (Document No. 11), Pitchford's responsive pleading to the motion to dismiss (Document No. 12), the reply brief filed by Munhall, Ilgenfritz, Garcia, Curtain and Chereb (Document No. 13), the MOTION TO DISMISS filed by Defendants Daniel Cherevka ("Daniel") and Kathy Jo Cherevka ("Kathy Jo") (Document No. 14), with brief in support (Document No. 14), Pitchford's responsive pleading to the Cherevkas' motion to dismiss (Document No. 15), and Pitchford's brief in opposition to the Cherevkas' motion to dismiss (Document No. 16). These motions have been extensively briefed and are ripe for resolution.


Pitchford commenced this action against the Defendants on April 3, 2007, which alleges violations of the Fourth and Fourteenth Amendments to the Constitution of the United States and the tort law of the Commonwealth of Pennsylvania. Doc. No. 1, ¶¶ 49-81. She brought her federal constitutional claims pursuant to 42 U.S.C. § 1983. The Court has jurisdiction over these federal claims pursuant to 28 U.S.C. §§ 1331 and 1343. The Court has supplemental jurisdiction over Pitchford's claims which arise under Pennsylvania law pursuant to 28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391(b).

Munhall, Ilgenfritz, Garcia, Curtain and Chereb filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on May 2, 2007. Doc. No. 8. The Cherevkas filed a motion to dismiss pursuant to Rule 12(b)(6) on July 13, 2007. Doc. No. 14. Since the matter comes before the Court in this posture, the allegations contained in the complaint are assumed to be true. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S.Ct. 2499, 2509 (2007). Although "heightened fact pleading of specifics" is not required for a plaintiff to survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corporation v. Twombly, 127 S.Ct. 1955, 1974 (2007).

According to the allegations set forth in the complaint, Pitchford is an adult individual who resides in Munhall, Pennsylvania. Doc. No. 1, ¶ 3. Munhall, a political subdivision of the Commonwealth of Pennsylvania, owns, operates, manages, directs and controls the Munhall Borough Police Department ("Police Department"). Id., ¶ 4. The Police Department employs Ilgenfritz, Garcia, Curtain and Chereb. Id. Munhall owns and operates the municipal building which houses the Police Department. Id. At all times relevant to this case, Ilgenfritz, Garcia, Curtain and Chereb were police officers. Id., ¶ 5. Daniel and Kathy Jo, who are husband and wife, reside in Munhall. Id., ¶¶ 7-8. Pitchford has a daughter named Gemma, and the Cherevkas have a son named Chad. Id., ¶ 9. During the relevant period of time, Chad was apparently Gemma's boyfriend. Id.

At approximately 4:00 P.M. on April 22, 2005, Pitchford went to the Cherevkas' home to persuade Gemma to return home, to retrieve her car from Gemma, and to inform Gemma that she was "grounded." Id. After Pitchford and Chad exchanged words, Chad told her to leave the property.*fn2 Id. After speaking with Chad, Pitchford returned home. Id. Kathy Jo and Chad proceeded to contact the Police Department, complaining that Pitchford had been harassing them. Id., ¶ 10. Ilgenfritz responded by going to the Cherevka residence. Id. Upon his arrival, Ilgenfritz was presented with a document which the Cherevkas' referred to as a Protection From Abuse ("PFA") order. Id. Apparently, no PFA order had ever been entered against Pitchford.

Id., ¶ 11. Instead, the document presented to Ilgenfritz by the Cherevkas was an order entered by the Court of Common Pleas of Allegheny County in the case of Kathleen Pitchford v. Norman Benning, III, No. FD 88-7805-001, pursuant to Norman Benning's ("Benning") Amended Emergency Petition for Special Relief.*fn3 Id., ¶ 12. The order indicated that Pitchford was not permitted to have contact with the Cherevkas, and that the Cherevkas were not permitted to have contact with Pitchford, pending a hearing scheduled before Judge Della Vecchia on September 22, 2004.*fn4 Id. This order had been entered on June 29, 2004, with the Cherevkas present in the courtroom. Id., ¶ 13. After learning of this order in the presence of Kathy Jo, Ilgenfritz advised that she could go to "night court" for the purpose of filing a private criminal complaint against Pitchford. Id., ¶ 15.

Pursuant to 23 Pa.C.S. § 6105(e), the Pennsylvania State Police is required to maintain a statewide registry of PFA orders. This registry is available to police officers throughout the Commonwealth. 23 Pa.C.S. § 6105(e)(3)("The registry of the Pennsylvania State Police shall be available at all times to inform courts, dispatchers and law enforcement officers of any valid protection order involving any defendant."). Pitchford alleges that Ilgenfritz had not reviewed the registry before advising Kathy Jo to file a private indirect criminal complaint against her. Doc. No. 1, ¶ 16.

At approximately 8:45 P.M. on April 22, 2005, Daniel appeared before a magistrate and filed a private criminal complaint against Pitchford. Id., ¶ 17. He stated under oath that Pitchford's actions had constituted a violation of a PFA order, and he requested that a warrant be issued for Pitchford's arrest. Id. The magistrate issued the warrant. Id., ¶ 18. Pitchford alleges that the Cherevkas intentionally and/or recklessly provided incorrect information to Ilgenfritz and the magistrate for the purpose of effectuating her arrest and detention. Id., ¶ 19.

Garcia, Curtain and Chereb arrived at Pitchford's residence in three separate vehicles at approximately 3:00 P.M. on April 23, 2005. Id., ¶ 20. They asked to see Pitchford's driver's license, and she complied with their request. Id. Garcia arrested Pitchford. Id., ¶ 21. Pitchford alleges that Garcia, Curtain and Chereb had not reviewed the PFA registry before they encountered her, and that they would have become aware of the fact that no PFA order had been entered against her had they taken the time to do so. Id., ¶ 22. Garcia placed Pitchford in handcuffs, and the three officers proceeded to escort her to the back of Garcia's police car. Id., ¶ 25. At least one (and possibly more) of Pitchford's neighbors saw her being taken out of her home in handcuffs. Id., ¶ 26. Garcia transported Pitchford to the Munhall Police Station. Id., ¶ 25. Curtain and Chereb followed Garcia in their own police cars. Id.

During the ride in the police car, Pitchford overheard Garcia mumble something about a PFA order. Id., ¶ 27. Pitchford informed Garcia that she had never been served with a PFA order. Id. She indicated that any PFA order against her would have been recorded at the Munhall Police Station, and that the officers had made a mistake in arresting her. Id.

Upon her arrival at the Munhall Police Station, Pitchford was placed in a filthy holding cell which appeared to her to be encrusted with old feces. Id., ¶ 28. She remained in a standing position in order to avoid contact with the feces. Id. While detained in the cell, Pitchford overheard an argument between several police officers concerning the absence of a PFA order.

Id., ¶ 29. One officer exclaimed, "We have to let her go." Id. Garcia opened the door and informed Pitchford that a constable had been called to take her "downtown." Id., ¶ 30. When Pitchford again told Garcia that a "terrible mistake" had been made, Garcia replied, "That's right. You are a legal assistant. You know everything." Id. Despite Pitchford's insistence that no PFA order had ever been entered against her, the officers did not check the registry in order to determine whether her contention was accurate. Id., ¶ 31.

Allegheny County Constable John Lieber ("Lieber") arrived at the Munhall Police Station about one hour later. Id., ¶ 32. Pitchford told Lieber that a mistake had been made, but Lieber responded by saying that he was only doing his job by following Chereb's instructions. Id. Lieber escorted Pitchford to the Allegheny County Jail for processing. Id., ¶ 33. She was placed in a jail cell with two other women, one of whom had been accused of drug possession and the other of whom had been accused of prostitution. Id.

After spending approximately two hours in the cell, Pitchford felt her heart starting to race. Id., ¶ 34. Her palms became "clammy," and she felt short of breath. Id. Although Pitchford knocked on the door repeatedly, the officers initially ignored her. Id. When a female officer finally came to the door, Pitchford politely asked to be taken to the nurse's station. Id. The nurse indicated to Pitchford that her blood pressure was elevated, and that she was having an anxiety attack. Id., ¶ 35. Pitchford asked the nurse if she could remain in the nurse's station, since she was getting "claustrophobic," but the nurse responded by telling her that she had to be returned to her cell. Id., ¶ 36. Pitchford was subsequently escorted back to the cell. Id.

Around midnight, Pitchford was taken to another cell. Id., ¶ 37. She was told that she would be going to "night court" to be arraigned. Id. About thirty minutes later, Pitchford was shackled to five male inmates and taken to "night court." Id., ¶ 38. While shackled and in handcuffs, Pitchford was placed in another holding cell. Id., ¶ 39.

Pitchford later appeared before a magistrate. Id., ¶ 40. During the hearing, the magistrate repeatedly indicated that he could not find an existing PFA order against Pitchford. Id. Pitchford informed the magistrate that no PFA order had ever being entered against her. Id., ¶ 41. The magistrate responded by listing Pitchford's bond at zero, thereby providing for her immediate release. Id., ¶ 42. Before her departure from the courtroom, the magistrate told Pitchford "off the record" that a great injustice had been done to her, that she never should have been taken into custody, and that she had grounds for a lawsuit. Id. On April 27, 2005, Pitchford appeared before Judge Eugene Scanlon, who dismissed the case against her on the ground that no PFA order had ever been entered against her.*fn5 Doc. No. 8-2, p. 3.

As a result of her arrest and detention, Pitchford suffered from severe depression and anxiety. Doc. No. 1, ¶ 44. Her primary care physician prescribed anti-anxiety and antidepressant medications for her, which she had to take for approximately eighteen months. Id. Pitchford was also treated by a psychologist. Id., ¶ 45. Pitchford's arrest exacerbated her Crohn's disease and caused her to gain fifty pounds. Id., ¶ 46. Pitchford had accepted a job offer from the Pennsylvania Office of Attorney General in April 2005, and she was scheduled to start in June 2005. Id., ¶ 47. In early May 2005, she received notice that the employment offer had been rescinded. Id. She believes that the reason for her loss of this employment opportunity was a criminal background check which revealed her recent arrest. Id. She continues to suffer a loss of wages due to this lost employment opportunity, as well as humiliation and embarrassment in her community. Id., ¶¶ 47-48.


Pitchford's complaint contains six counts. Count I alleges that Ilgenfritz, Garcia, Curtain and Chereb violated Pitchford's rights under the Fourth and Fourteenth Amendments. Id., ¶¶ 49-56. In Count II, she asserts that Munhall is liable under § 1983 for causing the constitutional violations that she suffered. Id., ¶¶ 57-62. Count III alleges that Garcia, Curtain and Chereb committed the tort of false arrest, which is recognized under Pennsylvania law. Id., ¶¶ 63-66. In Count IV, Pitchford alleges that Ilgenfritz, Garcia, Curtain and Chereb committed the tort of false imprisonment. Id., ¶¶ 67-73. Counts V and VI assert claims against the Cherevkas for the torts of false imprisonment and intentional infliction of emotional distress. Id., ¶¶ 74-81. Because the Court is convinced that the motion to dismiss filed by Munhall, Ilgenfritz, Garcia, Curtain and Chereb must be granted with respect to Counts I and II of the complaint, there is no need for the Court to address Counts III, IV, V and VI. Since Pitchford's federal law claims will be dismissed, the Court will decline to exercise supplemental jurisdiction over her state law claims pursuant to 28 U.S.C. § 1367(c)(3).

Counts I and II of Pitchford's complaint are based on alleged violations of the Fourth and Fourteenth Amendments. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV. The Fourth Amendment is applicable to state actors such as Munhall, Ilgenfritz, Garcia, Curtain and Chereb because it is incorporated within the Due Process Clause of the Fourteenth Amendment. Maryland v. Pringle, 540 U.S. 366, 369 (2003). Section 5 of the Fourteenth Amendment gives Congress the power to enforce, "by appropriate legislation," the substantive provisions of that Amendment. U.S. CONST. amend. XVI, § 5. Pursuant to this grant of authority, as well as other constitutional sources of federal legislative jurisdiction, Congress has enacted 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983. Section 1983 does not create substantive rights. Maher v. Gagne, 448 U.S. 122, 129, n. 11 (1980). Consequently, a plaintiff cannot prevail in an action brought under § 1983 without establishing an underlying violation of federal law. Collins v. City of Harker Heights, 503 U.S. 115, 119 (1992)("Although the statute provides the citizen with an effective remedy against those abuses of state power that violate federal law, it does not provide a remedy for abuses that do not violate federal law[.]").

Although the statutory language speaks of no immunities, the United States Supreme Court has always assumed that Congress would have expressly abolished common law immunities within the language of § 1983 if it had intended to do so. Pierson v. Ray, 386 U.S. 547, 554-555 (1967). For this reason, the "qualified immunity" that was available to state officials at common law is available to defendants such as Ilgenfritz, Garcia, Curtain and Chereb. Kalina v. Fletcher, 522 U.S. 118, 131-135 (1997)(Scalia, J., concurring)(discussing the common law origins of different forms of immunity available to officials sued under § 1983). While Ilgenfritz, Garcia, Curtain and Chereb focus their arguments primarily on the underlying constitutional issue (i.e., whether their actions constituted a violation of the Fourth Amendment), it is also clear that they are raising the defense of qualified immunity. Doc. No. 9, p. 7 ("Law enforcement officers who arrest on the basis of such a warrant are immune from suits alleging a constitutional violation."); Doc. No. 13, pp. 3-5.

In Saucier v. Katz, 533 U.S. 194, 200 (2001), the Supreme Court made it clear that a federal court, when presented with a qualified immunity defense, must first determine whether the facts alleged in the complaint, taken in the light most favorable to the plaintiff, establish a violation of the applicable constitutional or statutory provision. If an actionable violation of federal law is properly alleged, the Court must proceed to determine whether it would have been clear to a reasonable officer that his or her conduct was unlawful under the circumstances that he or she confronted. Saucier, 533 U.S. at 202. Qualified immunity is an immunity from suit, not just a defense to the ultimate imposition of liability. Consequently, a denial of qualified immunity constitutes a "final decision" within the meaning of 28 U.S.C. ยง 1291, thereby conferring jurisdiction upon a federal appellate court ...

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