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Mayfield v. Montgomery County Correctional Facility

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


February 12, 2009

EILEEN MAYFIELD, PLAINTIFF,
v.
MONTGOMERY COUNTY CORRECTIONAL FACILITY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION AND ORDER

Plaintiff Eileen Mayfield brings this action against Defendants Montgomery County ("Montco"), Julio Algarin and Lawrence Roth alleging she was sexually harassed during her term of employment at Montgomery County Correctional Facility ("MCCF"), and that she was criminally prosecuted because she sought legal recourse based on the harassment. Before the Court are Defendants' Motion for Partial Summary Judgment [Document No. 106], Plaintiff's Response [Document No. 109] and Defendants' Reply [Document No. 110]. For the reasons that follow, the Court will grant Defendants' Motion in part and deny in part.

I. FACTUAL AND PROCEDURAL BACKGROUND*fn1

Plaintiff worked as a correctional officer ("CO") at MCCF beginning in 1982 until her termination on October 19, 2000.*fn2 During the time period relevant to this action, Plaintiff was assigned to the Commissary, a facility within MCCF that sells personal items to inmates and is staffed by both COs and inmates.*fn3 Also during that time period, Defendant Roth was warden of MCCF, Defendant Algarin the deputy warden.*fn4 At some point, Plaintiff was placed in charge of the day-to-day operations of the Commissary.*fn5

In late February of 1999, it came to light that from late 1998 to early 1999, Plaintiff had exchanged letters with Gene White, an inmate who worked in the Commissary.*fn6 On or around February 25, 1999, White was written up by CO Mikhail Dillman for stealing underwear while working in the Commissary.*fn7 White told Captain Albert L. Ottinger that Plaintiff had given him the underwear, which Plaintiff denied.*fn8 After White was found guilty of the theft at his due process hearing, he gave Captain Ottinger the letters Plaintiff wrote him.*fn9 Captain Ottinger then gave those original letters to Defendant Algarin,*fn10 who stated that he kept them in Plaintiff's file until Major James Frey requested them.*fn11 In her deposition, Plaintiff testified that Defendant Algarin called her into his office on February 26, 1999 and proceeded to yell and curse at her for writing the letters to White.*fn12 He told her that White claimed to have had sex with her, which she denied.*fn13 Plaintiff stated that no one else was present during this meeting with Defendant Algarin.*fn14 Defendant Algarin then put Plaintiff on probation and demoted her, placing CO Mikhail Dillman in charge of the Commissary.*fn15

On or about August 10, 2000, Plaintiff filed a complaint against Defendant Algarin under the Pennsylvania Human Relations Act ("PHRA") for sexual harassment.*fn16 On August 17, 2000, Plaintiff went to Defendant Roth's office and told him that she had filed suit against Defendant Algarin.*fn17 According to Plaintiff, half an hour after her meeting with Defendant Roth, Defendant Algarin asked to speak with her in Defendant Roth's office.*fn18 He asked her to withdraw the complaint.*fn19 Plaintiff stated that the very next day, Defendant Algarin again asked her to withdraw her complaint.*fn20 Plaintiff testified that Defendant Algarin also stated that he had letters saying that all the inmates who had worked and stolen from the Commissary had actually been given the stolen items by Plaintiff.*fn21 In early September, Plaintiff told Defendant Algarin that she was going to continue with the lawsuit and according to Plaintiff, he replied, "Well, I got to do what I got to do."*fn22

Defendant Algarin denied saying this statement, claiming that he actually said "do what you have to do."*fn23 Defendant Algarin also denied ever having asked Plaintiff to withdraw her complaint.*fn24

According to Plaintiff's deposition, "Algarin did anything he wanted in [MCCF]. Warden Roth was openly molding [Defendant Algarin] into being the next warden. . . they were so tight."*fn25

In his deposition, CO Dillman testified that during the first or second week of September 2000, he spoke with Defendant Roth in his office.*fn26 CO Dillman stated that Defendant Roth said that "he didn't care what relationship I had with Officer Mayfield there, but if she was my friend, meaning his friend, that he would strongly suggest that she drop the case" and that it was Defendant Roth's understanding that there would be a criminal action.*fn27 CO Dillman stated that when he replied that it was up to the "EOC [sic] whether or not there is any kind of criminal action," Defendant Roth responded that he was referring to Officer Mayfield and that he understood that there were letters that would lead to criminal charges.*fn28 According to CO Dillman, he assumed that Defendant Roth was referring to the Gene White letters and told him that Plaintiff had already been punished for the same.*fn29 CO Dillman testified that Defendant Roth "smiled and said that, you know, if she was my friend, again, I would tell her strongly there to think before she does it."*fn30 CO Dillman also testified that at some point, Clifton Glenn, an inmate who had also worked in the Commissary and also received letters from Plaintiff, said to him "You guys better watch your back because they're watching you."*fn31 CO Dillman believed Glenn was referring to Defendant Algarin and the staff.*fn32

On October 2, 2000, Lieutenant Negron found contraband in the cell of inmate Jason Mascione, specifically highlighters, pens, pencils and markers.*fn33 Mascione claimed that CO Dillman had given him the contraband.*fn34 CO Dillman denied this and was instructed to write a misconduct report on the incident.*fn35 After he wrote the report, CO Dillman was informed by Lieutenant Negron that he had determined that CO Dillman had lied about not giving Mascione the contraband.*fn36

Lieutenant Negron then filed an Employee Violation Report against CO Dillman for lying to a supervisor dated October 5, 2000.*fn37 Contrary to normal procedure, Mascione's misconduct report was never logged in the misconduct log.*fn38

On or around October 5, 2000, CO Kathleen Brighter verbally reported to Major Frey that Mascione said Plaintiff had "grabbed his ass."*fn39 Major Frey then interviewed Mascione, who stated that Plaintiff "was flirting with him and there was one occurrence where she grabbed him in his buttocks area."*fn40 Major Frey then interviewed other inmates who worked in the Commissary, including Clifton Glenn and Nathaniel Bell, ultimately determining that "there was enough substance there that we should have outside agency investigate the matter."*fn41 He contacted the county detectives, who assigned Detective Joseph DeAngelo to the case.*fn42 Major Frey testified that he mentioned Gene White's name to Detective DeAngelo and turned over to him the original letters from Plaintiff to White.*fn43 At some point during his investigation, Major Frey informed Defendant Algarin of the allegations against Plaintiff, but according to Major Frey, Defendant Algarin refused to be involved and told him to report it to Defendant Roth.*fn44

After being assigned to the case, Detective DeAngelo conducted an investigation, reviewing Plaintiff's employment file and speaking to Major Frey and CO Brighter.*fn45 During her interview with Detective DeAngelo, CO Brighter stated that she was having a conversation with Mascione and Preston Minnick when Mascione reported Plaintiff's touching of his buttocks.*fn46 Detective DeAngelo also had letters from Plaintiff to Gene White, as well as the letters she had written in the early 1990s to Glenn.*fn47 Detective DeAngelo interviewed several inmates, including Bell, Glenn, White, Mascione and John Marburger.*fn48 In his deposition, Detective DeAngelo stated that he "never spoke to Warden Algarin . . . [nor] any of the other prison officials concerning my investigation of this case," nor was he, at the time, aware of Plaintiff's pending sexual harassment suit.*fn49

Jasper DiSanto, another inmate in MCCF serving a sentence of twenty-nine and a half to fifty-nine and a half months, also gave a statement to Detective DeAngelo.*fn50 DiSanto had previously been on work release, but was removed after a July 12, 1999 drug violation.*fn51 He later applied for early parole, but it was denied on July 5, 2000 with the issue to be revisited in January of 2001.*fn52

On October 19, 2000, DiSanto gave his statement to Detective DeAngelo alleging that Plaintiff had sexually assaulted him.*fn53 Defendant Roth, as warden, recommended him for early parole on December 5, 2000.*fn54 DiSanto testified at Plaintiff's preliminary hearing on January 10, 2001 and was paroled just under two months later on March 7, 2001.*fn55 He served about thirty-nine months of his sentence.*fn56 The Director of Inmate Services at MCCF testified that when the warden makes recommendations on an inmate's work release, furlough or early parole, such a recommendation would carry weight with the Pennsylvania Board of Probation and Parole.*fn57 DiSanto had his probationary hearing on December 21, 2000.*fn58

Following Detective DeAngelo's investigation and his issuance of an Affidavit of Probable Cause, Plaintiff was charged on or around December 2000 with institutional sexual assault for alleged sexual activity with inmates of MCCF.*fn59 With DiSanto, Mascione testified at Plaintiff's preliminary hearing on January 10, 2001.*fn60 While he was on furlough eleven days later, Mascione got into a fight and was issued a citation.*fn61 He failed to report this violation and part of his punishment was a loss of good time earned.*fn62 Mascione sent Defendant Algarin letters on February 8 and February 9, 2001, referencing his testimony in Plaintiff's case and asking that Defendant Algarin intervene to allow him to keep his good time.*fn63 Defendant Algarin recommended that Mascione be given his good time back.*fn64 Preston Minnick also sent a letter to Defendant Algarin asking for help and writing that he had "put [his] neck on the line."*fn65

At Plaintiff's trial, three witnesses, all former inmates of MCCF who knew DiSanto from the prison barber shop, testified that he was lying.*fn66 Louie Ciccarelli testified that DiSanto told him that he had made up the allegations of sexual assault against Plaintiff because "they promised him immediate Work Release."*fn67 Although DiSanto did not explicitly explain, Ciccarelli believed "they" referred to those who could get DiSanto work release, including Defendants Algarin and Roth.*fn68

William Green testified that DiSanto confided in him that he was making up his claims about Plaintiff "because he was trying to get out of prison early, early release . . . ."*fn69 Finally, John Marburger testified that DiSanto "said he was going to make up a story so he won't get a violation hit on his state parole."*fn70

The criminal matter against Plaintiff terminated on August 12, 2005 with an order of Nolle Prosequi entered by the state court upon motion by the Commonwealth, following a criminal trial that resulted in a hung jury. Plaintiff filed her first motion to amend/correct her Complaint on March 2, 2007.*fn71 In a March 2, 2007 Order, the Court dismissed this motion without prejudice and stayed the case.*fn72 Plaintiff filed a notice of intent to move for leave to amend her Complaint on March 15, 2007.*fn73 On July 4, 2007, Plaintiff filed a motion for leave to amend her Complaint, as well as a Proposed Amended Complaint.*fn74 Then, without a Court ruling, Plaintiff filed an Amended Complaint on July 9, 2007.*fn75 On August 9, 2007, the Court approved a stipulation between the parties that the Amended Complaint be withdrawn without prejudice until the Court decided Plaintiff's Motion for Leave to Amend.*fn76 On August 20, 2007, the Court granted in part and denied in part Plaintiff's Motion for Leave to Amend,*fn77 and Plaintiff filed her Amended Complaint on August 23, 2007.*fn78

Plaintiff voluntarily withdrew all claims against Timothy Woodward and Joseph DeAngelo on March 9, 2008.*fn79 On July 2, 2008, the Court granted in part and denied in part Defendants' Motion to Dismiss the Amended Complaint.*fn80 Plaintiff's remaining claims include a Title VII claim against Defendant Montco, PHRA claims against Defendants Montco and Algarin, 42 U.S.C. § 1983 claims against Defendant Algarin and Roth for violations of Plaintiff's First and Fourteenth Amendment rights,*fn81 as well as claims for civil rights conspiracies under 42 U.S. C. §§ 1985 and 1986 against Defendants Algarin and Roth.*fn82 Defendants Algarin and Roth now move for partial summary judgment on Plaintiff's claims against them under §§ 1983, 1985 and 1986.*fn83 The Court has carefully reviewed Defendants' Motion for Summary Judgment, Plaintiff's Response, the Reply and all accompanying materials, and this matter is now ready for disposition.

II. LEGAL STANDARD

Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law."*fn84 An issue of material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."*fn85 In examining these motions, all inferences must be drawn in the light most favorable to the nonmovants, and their allegations must be treated as true whenever they conflict with those of the movants and are supported by proper proofs.*fn86 The Court will not, however, make any credibility determinations or weigh the evidence presented.*fn87

The party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact.*fn88 Once the movant has done so, the opposing party cannot rest on its pleadings.*fn89 To defeat summary judgment, the non-movant must come forward with probative evidence demonstrating the existence of genuine issues for trial.*fn90 The non-movant therefore must raise "more than a mere existence of a scintilla of evidence in its favor" for elements on which it bears the burden of production.*fn91 An inference based upon speculation or conjecture will not create a material fact.*fn92

III. DISCUSSION

A. § 1983 Claims for Violations of Plaintiff's First and Fourteenth Amendment Rights

As an initial matter, Defendants argue that Plaintiff's claims are subject to and barred by a two-year statute of limitations.*fn93 While it is true that Plaintiff's § 1983 claims are subject to a two year period of limitations,*fn94 those claims are not barred by the same. Plaintiff's claims did not accrue "so long as the potential for a judgment in the pending criminal prosecution continues to exist."*fn95

Thus, the statute of limitations only began to run on Plaintiff's § 1983 claims once the criminal matter against her terminated. The criminal matter against Plaintiff terminated on August 12, 2005 and she moved for leave to amend her complaint on March 2, 2007.*fn96 Thus, these claims are not barred by the statute of limitations.

Moving on to the merits of Plaintiff's claims, to prevail on each claim brought under § 1983, she must demonstrate that a state actor deprived her of a federally protected right.*fn97 To succeed on a claim of malicious prosecution under § 1983, a plaintiff must first establish an underlying violation of a constitutional right.*fn98 As for her claim under the Fourteenth Amendment, Plaintiff has not demonstrated any underlying constitutional violation. Although Plaintiff does not specify which clause of the Fourteenth Amendment gives rise to her claim, a claim like hers can be based on "the procedural component of the Due Process Clause, so long as it was not based on substantive due process."*fn99 Malicious prosecution claims "must show more than a substantive due process violation."*fn100 Yet, Plaintiff produces no evidence that she was denied due process of law.*fn101 Nor did the Court, in its independent review of the evidence adduced by the parties, identify any violations of Plaintiff's right to procedural due process. Therefore, Plaintiff's § 1983 claim under the Fourteenth Amendment will be dismissed.

In contrast, Plaintiff has provided sufficient evidence of an underlying violation of the First Amendment upon which to base her malicious prosecution claim. As noted in this Court's July 2, 2008 Memorandum Opinion, it is well established that "[t]he protection [the First Amendment] affords . . . applies both to petitioning state agencies and to petitioning state courts."*fn102 Moreover, the Third Circuit has consistently held that suing an employer is activity protected under the First Amendment, as long as the petition is not frivolous or a "sham."*fn103 Defendant does not contend or set forth evidence that Plaintiff's sexual harassment suit is either frivolous or a sham. Therefore, there is an underlying constitutional violation for Plaintiff's First Amendment malicious prosecution claim.

If a plaintiff establishes a constitutional violation, then she must also establish the elements of a Pennsylvania malicious prosecution claim, which requires a showing that: 1) defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; and (4) defendants acted maliciously or for a purpose other than bringing the plaintiff to justice.*fn104 Defendants do not dispute that the criminal proceeding against Plaintiff terminated in her favor.*fn105

Pennsylvania law on malicious prosecution is based upon the Restatement (Second) of Torts.*fn106 Under Section 563, a person can be liable for malicious prosecution if that person either "initiates or procures the institution of criminal proceedings against another."*fn107 Defendants argue that they did not initiate any charges against Plaintiff.*fn108 Yet, if an individual gives a public official information of another's supposed criminal misconduct knowing that information to be false, then the individual procured any resulting prosecution.*fn109 If an individual induces a third person to knowingly provide the false information, a claim for malicious prosecution is still viable against that individual.*fn110 The knowing provision of false information renders "an intelligent exercise of the [public official's] discretion . . . impossible," whether that information is provided by a defendant directly or the defendant induces others to do the same.*fn111

Plaintiff has produced sufficient evidence to create a genuine issue of material fact as to whether Defendants Algarin and Roth induced inmates to knowingly provide false information to public officials, ultimately resulting in criminal charges against Plaintiff. Mascione first made his allegations against Plaintiff at approximately the same time he was written up for possession of contraband. The resulting misconduct report was never logged. When he violated furlough, Mascione wrote several letters to Defendant Algarin asking for help and referencing his testimony against Plaintiff. Defendant Algarin did recommend that Mascione not lose his good time. Drawing all inferences in Plaintiff's favor, a reasonable juror could believe that Mascione fabricated his allegations against Plaintiff in exchange for Defendant Algarin's help. Three former inmates of MCCF testified that DiSanto said he was lying about Plaintiff so that "they" would help him get immediate work release or not serve more time in jail. A reasonable juror could believe that "they" included Defendants Algarin and Roth. Moreover, Defendant Roth ultimately recommended DiSanto for early parole. Hence, a reasonable juror could believe that DiSanto lied about Plaintiff so that Defendants Algarin and Roth would help him get out of jail sooner. Thus, there is a genuine issue of material fact as to whether Defendants Algarin and Roth procured the institution of criminal proceedings against Plaintiff, and summary judgment will not be granted on that basis.

With regard to the remaining elements of Plaintiff's malicious prosecution claim, probable cause is "proof of facts and circumstances that would convince a reasonable, honest individual that the suspected person is guilty of a criminal offense."*fn112 Yet, it "does not depend on the state of the case in point of fact but upon the honest and reasonable belief of the party prosecuting."*fn113 Malice is "defined as 'ill will in the sense of spite, lack of belief by the actor himself in the propriety of the prosecution, or its use for an extraneous improper purpose,'" and may be inferred from the absence of probable cause.*fn114 Defendants are not entitled to, nor do they argue for, a grant of summary judgment based on Plaintiff's failure to establish a lack of probable cause and malice.

In addition to producing sufficient evidence for a reasonable juror to find that Defendants Algarin and Roth induced inmates to lie about Plaintiff, CO Dillman testified in his deposition that Glenn had warned him that Defendant Algarin was watching him. It is disputed whether Defendant Algarin stated "Well, I got to do what I got to do," after Plaintiff told him she was going to continue with her lawsuit against him.*fn115 Moreover, CO Dillman testified that Defendant Roth told him to advise Plaintiff to drop her sexual harassment claim and mentioned that there would be criminal action against Plaintiff. From this evidence, a reasonable juror could find that the charges against Plaintiff were procured by Defendants Algarin and Roth to dissuade her from bringing and continuing her sexual harassment suit against Defendant Algarin, and not because either Defendant Roth or Algarin believed Plaintiff guilty of the charges levied against her. Thus, Plaintiff has produced sufficient evidence of a lack of probable cause and malice to survive summary judgment. As there are genuine issues of material fact precluding summary judgment on Plaintiff's §1983 claim for malicious prosecution in violation of the First Amendment, the Court will not grant summary judgment on the same.

B. §§ 1985 and 1986 Claims for Conspiracies to Interfere with Plaintiff's Civil Rights

Plaintiff asserts claims against Defendants Algarin and Roth under subsections (2) and (3) of § 1985 for conspiring to interfere with her civil rights and under § 1986 for neglecting to prevent the same.*fn116 Defendants argue that Plaintiff's § 1985 claims must fail as she has adduced no evidence in support thereof.*fn117 Without an underlying § 1985 claim, Defendant argues that Plaintiff's § 1986 claim must also fail.*fn118 While the Court will grant Defendants summary judgment on Plaintiff's § 1985(3) claim and portions of her § 1985(2) claim, it will not grant summary judgment on Plaintiff's § 1985(2) claim relating to a conspiracy to intimidate a party, nor on her § 1986 claim.

1. § 1985(3) Claim

To state a claim under 42 U.S.C. § 1985(3),*fn119 the plaintiff must allege: "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or deprivation of any right or privilege of a citizen of the United States."*fn120 Yet, "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action."*fn121 Although the Amended Complaint alleges that "Defendants Algarin [and] Roth . . . conspired to injure, oppress, and intimidate Mayfield because of her sex," Plaintiff has produced no evidence of such an intention.*fn122 Plaintiff has produced no evidence of an animus on the part of Defendants Algarin and Roth against women in general, rather than against just Plaintiff as an individual.*fn123 Thus, as there are no genuine issue of material fact regarding discriminatory animus, Defendants are entitled to judgment as a matter of law. The Court will grant Defendants summary judgment on Plaintiff's § 1985(3) claim.

2. § 1985(2) Claim

To establish a claim under § 1985(2), a plaintiff must allege one of the statute's two bases for recovery: 1) a conspiracy to "deter by force, intimidation or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein . . . "; or 2) a conspiracy with the purpose of "impeding, hindering, or obstructing, or defeating in any manner, the due course of any justice in any State or Territory, with intent to deny any citizen the equal protection of the laws."*fn124 As stated in the Court's July 2, 2008 Memorandum Opinion, Plaintiff asserts claims under both portions of § 1985(2).*fn125 Yet, like a § 1985(3) claim, a claim for conspiracy to obstruct justice under the latter portion of § 1985(2) also requires Plaintiff to show a "class-based, invidiously discriminatory animus."*fn126 As explained supra, Plaintiff has not made such a showing.*fn127 Therefore, the Court will grant Defendants summary judgment on Plaintiff's § 1985(2) claim for conspiracy to obstruct justice.

With respect to the first half of § 1985(2), the essential elements of a § 1985(2) claim of witness intimidation are: 1) a conspiracy between two or more persons; 2) to deter a witness by force, intimidation or threat from attending court or testifying freely in any pending matter; which 3) results in injury to the plaintiff.*fn128 Plaintiff has failed to produce any evidence linking Defendants Algarin and Roth to any claimed intimidation of her witnesses.*fn129 Thus, the Court will grant Defendants summary judgment on Plaintiff's § 1985(2) claims arising from witness intimidation.

Plaintiff has, however, produced sufficient evidence for a reasonable juror to find that Defendants Algarin and Roth have conspired to intimidate her as a party in her sexual harassment claim. She testified that Defendants Algarin and Roth were very close and that Defendant Roth was grooming Defendant Algarin to replace him. A reasonable juror could believe, based on CO Dillman's testimony, that Defendant Roth threatened Plaintiff with criminal charges unless she dropped her suit against Defendant Algarin. Finally, Plaintiff produced evidence of favorable treatment accorded inmates who testified against her by both Defendants Algarin and Roth. Thus, a reasonable juror could find that Defendants Algarin and Roth agreed to intimidate Plaintiff by manufacturing criminal charges against her. As there are genuine issues of material fact for trial, the Court will not grant Defendants summary judgment on Plaintiff's § 1985(2) claim relating to the intimidation of Plaintiff as a party in her sexual harassment claim.

3. § 1986 Claim

In order to make out a claim under § 1986,*fn130 the companion statute to § 1985, an underlying § 1985 claim must be successfully alleged as a prerequisite.*fn131 As explained supra, part of Plaintiff's § 1985(2) claim will survive summary judgment. Therefore, Defendant's argument that Plaintiff's § 1986 claim should be dismissed because she has failed to establish a viable § 1985 claim is without merit. Thus, the Court will not grant Defendants summary judgment on Plaintiff's § 1986 claim.

IV. CONCLUSION

Plaintiff has failed to establish an underlying constitutional violation for her § 1983 malicious prosecution claim under the Fourteenth Amendment, and summary judgment will be granted on that claim. There are, however, genuine issues of material fact with respect to her § 1983 malicious prosecution claim under the First Amendment, and summary judgment will not be granted on that claim. Plaintiff has not produced evidence of any class-based, invidiously discriminatory animus on behalf of Defendants Roth and Algarin. Therefore, her claims for conspiracy under § 1985(3), and for conspiracy to obstruct justice under § 1985(2) must fail. Plaintiff also has not produced evidence of a conspiracy between Defendants Roth and Algarin to intimidate her witnesses, so her claim of a conspiracy to intimidate witnesses under § 1985(2) must fail as well. Plaintiff has produced sufficient evidence of a conspiracy between Defendants Roth and Algarin to intimidate Plaintiff herself, and therefore her claim of conspiracy to intimidate a party under § 1985(2) will survive summary judgment. Finally, as there is an underlying § 1985(2) claim, summary judgment will be denied on Plaintiff's § 1986 claim.

An appropriate Order follows.

ORDER

AND NOW, this 12th day of February 2009, upon consideration of Defendants' Motion for Partial Summary Judgment [Document No. 106], Plaintiff's Response [Document No. 109] and Defendants' Reply [Document No. 110], and in accordance with the attached Memorandum Opinion, it is hereby ORDERED that Defendants' Motion is GRANTED IN PART and DENIED IN PART, as follows:

1. Defendants' Motion is GRANTED as to Plaintiff's claim under § 1983 for malicious prosecution in violation of the Fourteenth Amendment. Accordingly, this claim is DISMISSED;

2. Defendants' Motion is DENIED as to Plaintiff's claim under § 1983 for malicious prosecution in violation of the First Amendment;

3. Defendants' Motion is GRANTED as to Plaintiff's claims under § 1985(2) for conspiracy to intimidate witnesses and conspiracy to obstruct justice. Accordingly, these claims are DISMISSED;

4. Defendants' Motion is DENIED as to Plaintiff's claim under § 1985(2) for conspiracy to intimidate a party;

5. Defendants' Motion is GRANTED as to Plaintiff's claim under § 1985(3). Accordingly, this claim is DISMISSED;

6. Defendants' Motion is DENIED as to Plaintiff's claim under § 1986.

Plaintiff's remaining claims are a Title VII claim against Defendant Montco; PHRA claims against Defendants Montco and Algarin; and a claim against Defendants Algarin and Roth under 42 U.S.C. § 1983 for malicious prosecution in violation of the First Amendment. Plaintiff also maintains claims against Defendants Algarin and Roth under 42 U.S.C. § 1985(2) for conspiracy to intimidate a party, and under 42 U.S.C. § 1986.

It is so ORDERED.

CYNTHIA M. RUFE, J.


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