The opinion of the court was delivered by: Magistrate Judge Blewitt
This civil rights action under 42 U.S.C. § 1983 is presently proceeding via a Complaint of the Plaintiff, Dwight A. Penberth, Jr., filed, through counsel, on May 19, 2006. (Doc. 1). Named as Defendants are the following: George Krajnak, Mayor of the Borough of Lansford; James Strauss, Chief of Police of the Borough of Lansford; and the Borough of Lansford ("BL").*fn1 On June 16, 2006, the three Defendants jointly filed their Answer to Plaintiff's Complaint with Affirmative Defenses. (Doc. 4). Subsequently, the Court issued a Scheduling Order and discovery ensued. (Doc. 11). The parties have consented to proceed before the undersigned for all matters, including trial, pursuant to 28 U.S.C. §636(c). (Doc. 8).
On March 15, 2007, Defendants jointly filed a Motion for Summary Judgment. (Doc. 15). Further, Defendants filed their Statement of Material Facts ("SMF") and support Brief with Exhibits attached. (Docs. 14 and 16). Plaintiff filed his Responses to Defendants' SMF and his opposition Brief with Exhibits on April 11, 2007. (Docs. 19 and 20). Defendants filed their Reply Brief on April 20, 2007. (Doc. 21). Defendants' Summary Judgment Motion is ripe for disposition.
II. Allegations of the Complaint
Plaintiff alleges that in April 2005 he bid $550.00 on the sale, "AS IS", of a used police car by Defendant BL. There was no mention in the bid advertisement by BL that the car would be stripped of police equipment. (Doc. 1, pp. 1-2). Plaintiff's bid was accepted by BL. In May 2005, the title to the car was transferred to Plaintiff and he took possession of it.
In Count One, Plaintiff alleges that Defendants Krajnak and Strauss, as employees of BL, "maliciously decided to file knowingly false criminal charges against Plaintiff." The criminal charges filed against Plaintiff related to his alleged failure to timely return the police equipment that was still in the car he purchased. (Id., p. 2, ¶ 16.). Plaintiff avers that at the time of the false charges, Defendant Krajnak's son-in-law was running against Plaintiff's father for the position of Borough Council. Plaintiff alleges that Defendants Strauss and Krajnak "purposefully intended ... to publicly portray Plaintiff as a criminal despite their knowledge that Plaintiff had not engaged in criminal activity" and that these Defendants "sought to publicly disparage, embarrass and humiliate Plaintiff's father by falsely accusing Plaintiff of criminal activity." (Id., p. 3, ¶ 's 17.-19.). Plaintiff further avers:
20. On about September 27, 2005, Defendant Krajnak by and through Defendant Strauss filed a felony and other charges against Plaintiff with an affidavit that Defendants knew was absolutely false in several regards.
21. At the time aforesaid Defendants used the criminal legal process primarily to accomplish a purpose for which the process was not designed. (Id., ¶'s 20.-21.)
As a result of the above allegations, Plaintiff states that he suffered compensatory damages, emotional distress, and that he is entitled to punitive damages. (Id., ¶'s 22.-24.).
We construe Plaintiff's Count One as his state law abuse of process claim.
In Count Two, Plaintiff alleges that Defendants Krajnak and Strauss "knowingly or grossly, negligently instituted said legal proceedings against Plaintiff without probable cause." Plaintiff states that the criminal legal proceedings which Defendants filed against him terminated in his favor, and that as a result of Defendants' malicious prosecution he has suffered compensatory damages. Plaintiff also seeks punitive damages in Count Two. (Id., ¶'s 26.-31.). We construe Plaintiff's Count Two as his state law malicious prosecution claim.
In Count Three, Plaintiff alleges that Defendants Krajnak and Strauss intentionally and purposefully arranged for his arrest even though there was no probable cause and that consequently, he was arrested without probable cause in violation of his Fourth Amendment rights. Plaintiff seeks compensatory damages and punitive damages in Count Three. (Id., ¶'s 34.-39.). We construe Plaintiff's Count Three as his §1983 federal false arrest claim.
Count Four is against Defendant BL and Plaintiff alleges:
41. At all relevant times, Defendant Borough had actual notice and knowledge that Defendant Krajnak and Defendant Strauss were planning and carrying out Plaintiff's arrest without probable cause.
42. At all relevant times, Defendant Borough intentionally or acting with deliberate indifference promoted, allowed, condoned, accepted and/or acquiesced in individual Defendants' illegal arrest of Plaintiff.
43. As a direct result of Defendant Borough's actions, policies and/or inactions, individual Defendants arrested Plaintiff without probable cause proximately resulting in injuries and damages specified above and incorporated herein for which Plaintiff seeks compensation. (Id., ¶'s 41.-43.).
In Count Five, Plaintiff alleges that Defendants Krajnak and Strauss "maliciously and intentionally interfered with Plaintiff's familial relationship with his father by purposefully attempting to pit Plaintiff's father against Plaintiff." Plaintiff claims that this conduct violated his Constitutional rights under the First Amendment and Fourteenth Amendment. (Id., ¶'s 46.-47.). This Count contains Plaintiff's §1983 claim for violation of his First Amendment right to association against Defendants Krajnak and Strauss.
In his final Count Six against Defendant BL, Plaintiff avers:
53. At all relevant times, Defendant Borough intentionally or acting with deliberate indifference promoted, allowed, condoned, accepted and/or acquiesced in individual Defendants' purposeful interference with Plaintiff's familial relationships depriving Plaintiff of his First and Fourteenth Amendment rights to be free from such interference and damages resulting therefrom.
54. As a direct result of Defendant Borough's actions, policies and/or inactions, individual Defendants interfered with Plaintiff's constitutional rights, proximately resulting in injuries and damages specified above and incorporated herein for which Plaintiff seeks compensation. (Id., ¶'s 53.-54.).
We construe Counts Four (Fourth Amendment) and Six (First Amendment) against Defendant BL to be Plaintiff's Constitutional claims brought pursuant to Monell.*fn2
As a result of the Defendants' alleged conduct, Plaintiff contends that his constitutional rights were violated, predicating jurisdiction of this Court over this action under 42 U.S.C. Section 1983 ("§1983") as well as 28 U.S.C. § 1331 and § 1343. (Doc. 1, ¶ 5.). As mentioned, Plaintiff also asserts pendent state law claims, including false arrest, malicious prosecution, and abuse of process, Counts One and Two, Doc. 1. Plaintiff alleges that Defendant BL also violated his Constitutional rights under a Monell theory of municipal liability, Counts Four and Six, Doc. 1.*fn3
As relief, Plaintiff seeks compensatory and punitive damages as against Defendants Strauss and Krajnak in their official capacities, and he seeks compensatory damages as against Defendant BL. As mentioned, Plaintiff seeks punitive damages against the individual Defendants (Strauss and Krajnak). Plaintiff cannot recover punitive damages against the Defendant Borough in this case on his § 1983 claims. We also have stated that Plaintiff correctly does not seek punitive damages against the Defendant Borough.*fn4
As stated, in the federal Counts Three and Five, Plaintiff seeks as relief compensatory damages against both individual Defendants as well as punitive damages. (Doc. 1, ¶'s 38. - 39. and 48. - 50). Plaintiff has sued Defendants Strauss and Krajnak only in their official capacities as agents and/or employees of Defendant BL acting within the scope of said relationship. Plaintiff does not sue these Defendants in their individual capacities. (Doc. 1, p. 2, ¶ 15.). However, to the extent that Plaintiff is suing Defendants Strauss and Krajnak in their official capacities as agents of Defendant Borough, i.e. alleging that these Defendants were acting within the scope of their employment as Borough Police Chief and Mayor, respectively, (Doc. 1, ¶'s 2.-3.), we find that Plaintiff's damages claims against them in their official capacities must be dismissed. See Carlton v. City of Phila., 2004 WL 633279, *8 (E.D. Pa. 2004)("actions against government employees in their official capacities 'generally represent only another way of pleading an action against an entity of which an officer is an agent'") (citation omitted); Douris v. Schweiker, 229 F.Supp2d 391, 400 (E.D. Pa. 2002); Dill v. Com. of PA, 3F.Supp.2d 583, 587 (E.D. Pa. 1998). Plaintiff's claims against the individual Defendants, Police Chief Strauss and Mayor Krajnak, under § 1983 in their official capacities as Chief of Police and Mayor (Doc. 1, ¶ 15.) are, in effect, a suit against the Defendant Borough. Since the Borough has been named as a Defendant herein, we see no need for official capacities claims against police Chief Strauss and Mayor Krajnak. See Kenny v. Whitpain Twp., 1996 WL 445352, *2 (E.D. Pa. 1996); see also Atwell v. Schweiker, 2007 WL 2900565 (3d Cir. 2007) (Non-Precedential). In Atwell, the Court stated:
The Eleventh Amendment bars a suit against state officials sued in their individual capacities because the state is the real party in interest inasmuch as the plaintiff seeks recovery from the state treasury. Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990). The Eleventh Amendment does not bar suits against state officials in their personal capacities. Id.
To determine whether a plaintiff sued a defendant in his personal capacity, official capacity, or both, we look to the complaint and the course of proceedings. Id. In concluding that the official in Melo was sued in her personal capacity, we considered the fact that the plaintiffs sued, and only requested damages from, the official and not the state. Id. at 636.*fn5
A. Motion for Summary Judgment Standard
A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). An issue of fact is "'genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A fact is "material" if proof of its existence or nonexistence could affect the outcome of the action pursuant to the governing law. Anderson, 477 U.S. at 248. "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F. 3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022 (1994).
The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the nonmovant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976) cert. denied, 429 U.S. 1038 (1977).
Under Rule56, summary judgment must be entered where a party "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." Celetox Corp. v. Catrett, 477 U.S. 317, 322 (1986). Moreover, the Third Circuit has recently indicated that "although the party opposing summary judgment is entitled to 'the benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and 'cannot rest solely on assertions made in the pleadings, legal memorandum or oral argument.'" Goode v. Nash, 2007 WL 2068365 (3d Cir. 2007)(NonPrecedential)(citation omitted).
In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements:
(1) that the conduct complained of was committed by a person acting under color of state law; and
(2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527 (1981); Kost v. Kozakiewicz, 1 F. 3d 176, 184 (3d Cir. 1993). Further, Section 1983 is not a source of substantive rights. Rather, it is a means to redress violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002).*fn6 See also Holocheck v. Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 498-499 (M. D. Pa.).
It is well established that personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra. It is also well settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint's allegations, to have been personally involved in the events or occurrences upon which Plaintiff's claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):
A defendant in a civil rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. (Citations omitted).
IV. Statement of Material Facts
The moving Defendants base their instant Motion on Rule 56. (Doc. 15).*fn7 Presently pending before this Court is the joint Motion for Summary Judgment of Defendants filed on March 15, 2007. (Doc. 15). Defendants simultaneously filed their Statement of Material Facts ("SMF"). (Doc. 14, ¶'s 1.-38.). Defendants also filed their support Brief (Doc. 16) with Exhibits (Exs. A and
B). Plaintiff filed his opposition Brief with several Exhibits on April 11, 2007, as well as his response to Defendants' SMF.*fn8 (Docs. 20 and 19, respectively). Defendants then filed their Reply Brief on April 20, 2007. (Doc. 21).
Plaintiff has admitted the following paragraphs of Defendants' SMF which were filed under Local Rule 56.1, M.D. Pa. (Docs. 14 and 19): ¶'s 1.-9.; 11.-13.;16.-17.; 19. (to the extent that BL sent two letters to the Penberths requesting that they make arrangements to return unspecified police equipment in the car); 21.-25.; and 28.*fn9 Thus, for present purposes, we incorporate by reference all of the stated Defendants' SMF which have been admitted by Plaintiff since Defendants have properly cited to evidence to support each one of these admitted paragraphs. We shall not repeat Defendants' undisputed SMF.
As stated, since the above mentioned paragraphs of Defendants' SMF are not disputed by Plaintiff in his Response (Doc. 19), we shall consider them as unopposed. Therefore, we accept the stated facts contained in the stated paragraphs of Defendants' SMF since they are not disputed by Plaintiff's response thereto and are supported by the record, and we will adopt them as our own herein. See U.S. ex rel. Paranich v. Sorgnard, 396 F. 3d 326, 330, n. 5 (3d Cir. 2005) (Under M.D. Pa. L.R. 56.1, the Third Circuit noted that the District Court adopted all the facts of one party that were not clearly disputed by the other party with sufficient citation to the record).*fn10
We shall now discuss Defendants' SMF which are denied by Plaintiff.
As to ¶ 10. of Defendants' SMF, Plaintiff testified as follows:
Q: Did you have any conversations with anybody at the borough about what was going to be removed before you took possession of the car?
Q: How about in a general sense?
A: Not that I can recall, no.
Q: When you were bidding on the police car, did you think you were bidding for a light bar attached to the police car?
A: I assumed I was bidding for whatever was on the car at the time I acquired it.
Q: So you thought you were bidding for a light bar on a police car?
A. No, just whatever it was. I didn't know what they were taking off.
Q: Did you know what was still in the car when you made the bid?
A: Specifically, no. (Doc. 20-10, NT 38).
As to ¶ 14. of Defendants' SMF, it is agreed by the parties that the Penberths do not remember telling Krajcirik at his garage that they would return the car later to have the police equipment in it removed, but Krajcirik remembers the stated conversation when the Penberths took the car after Plaintiff's bid was accepted.
As to ¶ 15. of Defendants' SMF, it is admitted that after Plaintiff picked up the car, a police officer asked him about getting back police equipment from inside the car. Plaintiff testified:
Q: Now, when was the next time you had a conversation with anybody about the police car?
A: I don't know which day it was, but I know one time, one of the officers questioned - -
Q: Go ahead. Don't worry about me. You worry about her. I'm not writing down. The court reporter is.
A: My dad was donating his vibrating plate to the - - I'm not sure if
Q: this was the next time or one of the times, but one of the officers stopped and asked if they could get the strobe something off the inside of the car. And I was like - - I know my dad or me were standing there loading this up and/or we just told them t contact us whenever, give us a call sometime and then they can come up and get it. And I know they called once and they were - - my mom, my dad and me were heading down to Hershey to my sister's apartment and we told them that it wasn't a good time, to call back. And I don't know if they did. I don't think they did. (Doc. 20-10, NT 59).
As to ¶18. of Defendants' SMF, it is admitted that Plaintiff stated that he was never given a list of equipment that the police wanted back from the car. (Doc. 20-10, NT 73). The record also shows that Defendant Strauss testified that:
Q: You never talked to Dwight Penberth, Sr., personally about this matter?
A: On the phone one time I did when he had called the office.
Q: When was that - - we're talking the [Plaintiff's] father now?
A: Right. He had called me one day at the office about returning this stuff. He wanted to know what articles had to be returned. And he was told.
Q: What did you tell him?
A: I told him - - I started out with the tires, to which he threw a little bit of a fit. He had a problem with the tires. I tried to explain that they were new tires and had I been working at the time the car would not have been released with these tires on. And police equipment, which I did not have an itemized list, but I mentioned the light bar, the radio, the cage. Police equipment.
Q: So you do agree - - was this before you filed the charge?
A: This was before I filed, yes.
Q: So you told the father that you wanted the tires back?
Q: Because they were good?
A: Correct. And it was my impression that this car was to be used only for an engine and a transmission. That was the only objects that were a concern. (Doc. 22, NT 17-18).*fn11
As to ¶'s 20. and 37. of Defendants' SMF, which correspond to ¶'s 21. and 38. of Plaintiff's Response, Plaintiff's father testified:
Q: Well, the letter says to call the chief, does it not?
A: All right. This is the one when he was away, all right. Now, I see, and I did call the chief, I called because Dwight was away.
A: That's, I think, when he was down at the shore, was when this came.
Q: Again, I'm just trying to figure out, did you call the chief, because you opened Dwight's mail, or is it because you got it in your box at the Borough?
A: Probably got it in the box, because I'm a real fanatic about other people opening other people's mail in my household.
A: He said, what did you want back, and the first word out of his mouth was, the tires. I said, you've got to be kidding, he said that and other stuff. I said, what stuff? He wouldn't give me an answer. I said, this is a waste of my time. I hung up on him, I believe.
Q: When you said he wouldn't give you an answer, did he say anything else?
A: Yeah, stuff, that's a hell of an answer from a police chief.
Q: All right. You said, what other stuff, and he said quote?
A: He may have said radio and stuff, but as I told him before, we assumed that radio was gone because we couldn't see it in there. My son or I didn't do a darn thing to that car the whole time it was in our possession.
Q: So the chief, in response, said, radio and stuff, correct?
A: Right, something to that effect, yes.
Q: What did you say in response?
A: I said, the radios not even in there.
Q: Did you say anything else?
A: I said, this is a lot of crap, or something like that. I don't remember the specifics of the phone call, how it ended, I just remembered conversation about the tires again, because that's all he kept saying. (Doc. 20-9, NT 54-55).
Defendant Strauss testified as follows:
Q: So you talked to the father once before you filed the charge, correct?
Q: Did you talk to the son, Dwight, Jr., before you filed the charges?
Q: But you were not arresting the father?
Q: You were arresting the son?
Q: And you never talked to him?
A: No, I didn't talk to him. Other people did.
Q: Do you agree that there was no urgency about filing this criminal complaint, was there?
A: There was no urgency, no.
Q: So you had time to talk to the son about the ...