The opinion of the court was delivered by: Judge Kane
Before the Court is Defendants' Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 5.) The motion has been fully briefed and is ripe for disposition. For the reasons discussed below, the motion will be granted in part and denied in part.
The following facts are accepted as true for the purposes of Defendants' Motion to Dismiss. In 2004, Lorien A. Mickelson filed, through her counsel, a complaint with the Pennsylvania State Police alleging that Kirk Perkins ("Perkins"), a Pennsylvania State Police Trooper, had falsified certain documents. (Doc. No. 1 ¶ 8.) Defendant Charles Staskiewicz ("Staskiewicz"), also a Pennsylvania State Police Trooper, was assigned to investigate the matter. (Doc. No. 1 ¶ 9.) On February 8, 2006, Staskiewicz filed a criminal complaint against Perkins alleging that Perkins committed the criminal offenses of forgery and tampering with records or identification. Defendants John Brown ("Brown"), Deputy Commissioner of State Police, and Jeffrey Miller ("Miller"), Commissioner of State Police, authorized the complaint. (Doc. No. 1 ¶ 10.) Perkins was arrested on those charges and suspended without pay from his duties. (Doc. No. 1 ¶ 10.)
Prior to trial, the forgery charges were withdrawn. (Doc. No. 1 ¶ 12.) On September 12, 2006, Perkins was acquitted of the remaining charges. (Doc. No. 1 ¶ 12.) Perkins alleges that Defendant Staskiewicz authored the criminal complaint knowing that he lacked probable cause to make an arrest and that his co-defendants permitted him to do so. (Doc. No. 1 ¶ 11.) In Count I, Perkins claims that as a result of his arrest and prosecution, he was deprived of his right to be free from malicious prosecution and his right to due process of law, as guaranteed by the Fourth and Fourteenth Amendments. (Doc. No. 1 ¶ 22.) In Count II, Plaintiff brings two state law claims against Defendants: abuse of process and malicious prosecution.
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint, Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993), and is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). Indeed, the Supreme Court has recently held that while this standard does not require "detailed factual allegations," there must be a "'showing,' rather than a blanket assertion of entitlement to relief . . . '[F]actual allegations must be enough to raise a right to relief above the speculative level'" in order to survive a 12(b)(6) motion to dismiss. Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)).
Plaintiff asserts that Defendants Staskiewicz, Miller, and Brown violated his Fourth and Fourteenth Amendment rights by maliciously prosecuting him. Defendants argue that Plaintiff has failed to state a claim upon which relief can be granted for two reasons. First, Defendants argue that a plaintiff cannot bring a § 1983 malicious prosecution claim based on the Fourteenth Amendment. Second, Defendants argue that Plaintiff has failed to allege that he was subject to a seizure. In their motion to dismiss, Defendants also allege a failure of service of process, but that issue has become moot.*fn1
With regard to the state law claims, Defendants argue that Plaintiff is barred from these claims by sovereign immunity and further, that he has failed to allege sufficient facts to support an abuse of process claim. The Court will address each count in turn.
1. Perkins' Fourteenth Amendment § 1983 Claim
Defendants argue that Plaintiff's malicious prosecution theory does not give rise to an independent claim under the Fourteenth Amendment. Plaintiff does not dispute this in his brief in opposition, thus he is deemed to concede in the argument.*fn2 Moreover, in Albright v. Oliver, a plurality opinion, the Supreme Court held that "it is the Fourth Amendment, and not substantive due process, under which petitioner Albright's [malicious prosecution] claim must be judged." 510 U.S. 266, 271 (1994) (stating a reluctance to expand the principles of substantive due process and holding that a right to be free from prosecution without probable causes exists under the Fourth Amendment, which has "relevance to the deprivations of liberty that go hand in hand with criminal prosecutions."). While the Third Circuit has held that the Albright opinion should be read narrowly, and does not require "that a malicious prosecution claim  only be based in a Fourth Amendment violation," it does appear that malicious prosecution claims cannot be brought under the substantive due process provision of the Fourteenth Amendment. Torres v. McLaughlin, 163 F.3d 169, 173 (3d Cir. 1998) ("Accordingly, a section 1983 malicious prosecution claim may also include police conduct that violates the Fourth Amendment, the procedural due process clause or other explicit text of the Constitution.").
Plaintiff does not allege facts upon which the Court could, even if not waived, find a procedural due process violation. Therefore, because Plaintiff has waived the argument and cannot bring a § 1983 malicious prosecution claim under the substantive due process provision of the Fourteenth ...