The opinion of the court was delivered by: Judge Munley
Before the court are the reports and recommendations (Doc. 78-79) of Magistrate Judge Malachy E. Mannion, which propose that we grant in part and deny in part various summary judgment motions filed on the claims and counterclaims in this case. Having been fully briefed and argued, the matters are ripe for disposition.
This case involves delicate matters surrounding the relationship between the plaintiff, a forty-four-year-old Pennsylvania State Patrol Officer and Brooke Quick, a sixteen-year-old high school student. Plaintiff Lance A. Zeglen became a member of the Pennsylvania State Police in 1985 (Defendants' Statement of Undisputed Material Facts (Doc. 54) (hereinafter "Defendants' Statement) at ¶ 1).*fn1 Sometime in 2001, a citizen named Robert Morgan contacted State Police Sargent David Relph at the State Police's Blooming Grove Station, seeking a meeting. (Id. at ¶ 2). The two met on February 16, 2001. (Id. at ¶ 3). At that meeting, Morgan reported that his stepdaughter, Kimberly Miller, had been observed kissing the plaintiff at a community picnic the previous summer.*fn2 (Id.). Miller was fifteen years old at the time. (Id.). Zeglen was forty-four years at the time. (Id.). In an interview with Relph, Miller admitted that she had kissed Zeglen. (Id. at ¶ 5). The parties disagree over whether and to what degree Miller claimed that Zeglen touched her body. (Id. at ¶ 5); (Plaintiff's Counterstatment of Material Facts (Doc. 68) (hereinafter "Plaintiff's Statement" at ¶ 5).*fn3
Relph reported these allegations to the commander of his troop, who assigned Lieutenant Wanda Gilbert to investigate. (Id. at ¶ 6). Gilbert interviewed Miller's stepsister, Hillary Morgan, who reported that she had observed Miller drinking and "making out" with Zeglen on the day in question. (Id. at ¶ 7).*fn4 Gilbert also interviewed Miller, who admitted that she had kissed Zeglen, and that he had come to her place of work a day or two later and asked her not to discuss the incident with anyone. (Id. at ¶ 8).*fn5 Miller also alleged that Zeglen had run his hands up and down her sides and had made her feel uncomfortable. (Id. at ¶ 9). The parties disagree about the extent of the contact between the Zeglen and Miller.*fn6 Despite these allegations, Gilbert concluded in her report that "due to the lack of solvability factors coupled with the adamant denial by the victim of the suspect having committed any crimes codes violations as initially reported," the investigation would be "terminated." (Id. at ¶ 10).
After Gilbert's initial investigation, John R. (Rick) Brown, a Pennsylvania State Police Captain and Director of the Division of Internal Affairs in the Bureau of Professional Responsibility, reviewed Gilbert's work and reported to a superior that he disagreed with her conclusions. (Id. at ¶¶ 11-12). Brown contended in part that Gilbert's investigation was flawed because she had failed to seek the opinion of a prosecutor as required in State Police administrative regulations. (Id. at ¶ 13). Brown also worried that Gilbert had not interviewed potential witnesses. (Id. at ¶ 14). Brown suggested that the State Police reopen the criminal investigation, conduct a thorough inquiry, and submit their findings to the district attorney for a written prosecutorial decision.*fn7 (Id. at ¶ 15). Brown did not know Zeglen when he conducted the investigation. (Id. at ¶ 16).
When confronted with Brown's recommendations, Zeglen's troop commander suggested that any further investigation should be handled by the Internal Affairs division. (Id. at ¶ 17). The troop commander felt that the troop would have difficulty carrying out such an investigation. (Id.). Trooper Robert Jones received the initial assignment on the matter, but personal reasons intervened and he was replaced by Corporal John Duby. (Id. at ¶ 18). Duby became the primary investigator in May 2001. (Id. at ¶ 19). During the course of this investigation, Duby interviewed John Tobey, a guidance counselor at Lake Wallenpaupak High School, where Miller was a student. (Id. at ¶ 20). Tobey informed Duby that a student at the high school named Brooke had informed him that she had sex with plaintiff. (Id. at ¶ 21).*fn8 Obtaining a yearbook for the high school, Lieutenant Michael Patrick determined that the only student in the school named Brooke was Brooke Quick. (Id. at ¶ 22). Armed with that information, Duby and Corporal Farzad Sharif reinterviewed Tobey on June 6, 2001. (Id. at ¶ 23). Tobey confirmed that Quick was the student in question, and that she had told him that Zeglen and Quick had a sexual relationship beginning in late 2000. (Id. at ¶¶ 23-24). The two had sexual intercourse as recently as May 30, 2001. (Id. at ¶ 24). Tobey also reported that Quick told him that Zeglen had instructed her to lie if anyone asked her about their relationship. (Id. at ¶ 25).*fn9
Duby and Sharif interviewed Quick on June 21, 2001. (Id. at ¶ 26). She told them that she had sexual contact with Zeglen several times when she was sixteen years old. (Id.). At a second interview, on June 25, 2001, Quick confirmed that she engaged in sexual acts with the plaintiff. (Id. at ¶ 27). Investigators then arranged a "consensual intercept" of a conversation between Zeglen and Quick. (Id. at ¶ 28). In a conversation shortly after June 25, 2001, Zeglen did not deny to Quick that they had a sexual relationship. (Id.). Instead, he reminded her that she did not have to cooperate with the investigation. (Id.). Zeglen again failed to deny the relationship during a second such intercept. (Id. at ¶ 29).
On July 27, 2001, the Pennsylvania State Police executed a search warrant on plaintiff's home, boat, car and locker at work. (Id. at ¶ 30).*fn10 Duby prepared a criminal complaint in May 2002 that charged plaintiff with one count of corruption of minors. (Id. at ¶ 31). The complaint contained an affidavit of probable cause signed by Duby. (Id. at ¶ 32). The affidavit identified several acts of sexual contact between Quick and the plaintiff. (Id. at ¶ 33). The parties agree that Quick admitted that such acts occurred, though plaintiff contends that investigators had been made aware of Quick's poor reputation for truth and honesty by those who knew her. (Defendants' Statement at ¶ 34; Plaintiff's Statement at ¶ 34). The parties also agree that Quick claimed that she had expressed to Zeglen her desire not to engage in sexual contact during their first encounter and that plaintiff had persuaded her to consent to the contact by making her feel guilty. (Defendants' Statement at ¶ 35).*fn11
Robert O'Hara, a prosecutor in the Pennsylvania Office of Attorney General, reviewed the complaint and eventually concluded that sufficient probable cause existed to charge plaintiff with corruption of minors under Pennsylvania law. (Id. at ¶ 37). The parties disagree over whether O'Hara came to this conclusion independently, or was pressured by the State Police to bring charges. (See Plaintiff's Statement at ¶ 37).*fn12 In any case, a preliminary hearing occurred before District Magistrate Judge William Sanquilly on August 6, 2002. (Id. at ¶ 38). An attorney represented plaintiff at the hearing. (Id. at ¶ 39). His lawyer cross-examined Quick, who testified that she and Zeglen engaged in sexual acts when she was sixteen years old. (Id. ¶¶ 40-41). After this testimony, plaintiff's lawyer moved to dismiss the charges, but the judge ordered the case bound over for trial. (Id. at ¶ 42). Zeglen was acquitted after a trial in January 2004. (Id. at ¶ 44).
After the trial ended, the State Police determined to treat the allegations against Zeglen as an administrative matter. (Id. at ¶ 45). The State Police continued plaintiff's suspension without pay while they investigated the allegations against him, and also instituted other restrictions on where plaintiff could go in public. (Id. at ¶¶ 46, 49; Plaintiff's Statement at ¶ 46). Those restrictions also included a ban on speaking with any witnesses involved in the case. (Defendants' Statement at ¶ 47). Prior to issuing these restrictions, the State Police had received various reports that plaintiff or his girlfriend had contacted witnesses in the case and attempted to influence their testimony. (Id. at ¶¶ 49-52). Plaintiff admits that the Police had received such reports, but denies he engaged in such conduct or was aware that anyone else had. (Plaintiff's Statement at ¶¶ 49-52). Eventually, after testimony from Quick and another witness who claimed plaintiff had touched her daughter inappropriately, the State Police dismissed plaintiff from his employment. (Id. at 53). An arbitrator upheld this dismissal. (Id.). Plaintiff maintains he was dismissed because he protested proposals to disband Troop S of the Pennsylvania State Police. (Id. at ¶ 54)
On August 31, 2004, plaintiff filed a complaint in this court. (Doc. 1). Count I of the complaint, raised against Defendants Pappert, Miller, Evanko*fn13 , Traunsue, Carusone and Brown, states a claim for first amendment retaliation pursuant to 42 U.S.C. § 1983. Plaintiff alleges that after he spoke out on a matter of public concern the defendants retaliated against plaintiff by bringing unfounded charges and engaging in harassing searching and investigations of him. Count II raises claims of malicious prosecution in violation of his rights under the Fourth Amendment to the United States Constitution against all of the defendants. Count III alleges defamation and false light misrepresentation under Pennsylvania law against Brooke Quick. After the parties briefed and this court granted in part and denied in part a motion to dismiss, the defendants filed answers in the case. Brooke Quick's answer (Doc. 30) includes counterclaims pursuant to federal and Pennsylvania law. Count I of the counterclaim alleges that the state police defendants illegally allowed the plaintiff to engage in inappropriate sexual behavior with Quick in violation of 42 U.S.C. §§ 1983 and 1988. Count II asserts that the counterdefendants conspired to deprive Quick of her constitutional right to equal protection of the laws. Count III alleges that the Pennsylvania State Police had a policy or custom of allowing behavior similar to the plaintiff's in violation of 42 U.S.C. §§ 1983 and 1988. Count IV of the countercomplaint alleges assault and battery related to the sexual conduct between Zeglen and Quick. Count V accuses plaintiff of inflicting emotional distress on Quick. Count VI claims that plaintiff had falsely imprisoned her in violation of state law.
The parties then engaged in discovery. After the close of discovery, plaintiff filed a motion for summary judgment of Defendant Quick's counterclaims. (Doc. 45). The State Police Defendants also filed a motion for summary judgment on plaintiff's claims. (Doc. 53). Defendant Quick filed a motion for summary judgment (Doc. 73), although her brief in support of that motion actually serves as a brief in opposition to plaintiff's motion for summary judgment on her counterclaims. (See Doc. 75). The parties briefed those motions.
In two separate opinions, Magistrate Judge Mannion recommended that we grant the state police's motion for summary judgment on the first two counts of plaintiff's complaint and that we grant summary judgment to the plaintiff on the federal claims in Defendant Quick's countercomplaint. The magistrate judge suggested that we dismiss Defendant Quick's cross-claim against five defendants not named in the original lawsuit. Quick never provided proof of service for those five additional defendants, and the deadline for perfecting service on those defendants had long since passed. In addition, the magistrate judge found that Quick filed no brief in opposition to plaintiff's motion for summary judgment on Counts I, II and III of her counterclaim, and therefore recommended that we grant the plaintiff's motion as it pertained to those federal counts.*fn14 At the same time, the magistrate judge recommended that we grant summary judgment to the plaintiff on a portion of Quick's assault and battery counterclaim and deny summary judgment on her remaining state-law claims. If we followed the magistrate judge's recommendations, Plaintiff's state-law claim against Brooke Quick and Brooke Quick's remaining state-law counterclaims would remain in the case. Plaintiff then filed objections to the report and recommendation and defendants filed a brief in opposition, bringing the case to its present posture.
As this case is brought pursuant to 42 U.S.C. §§ 1983, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental ...