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Roach v. Marrow

September 24, 2009

DONALD L. ROACH, DENEEN ROACH, MATTHEW ROACH, HANNAH ROACH, PLAINTIFFS
v.
CHIEF OF POLICE KENNETH MARROW, JOHN ADAMS, JR., CATHY A. COOK, CHARLES COTTER, ULSTER TOWNSHIP SUPERVISOR, DONALD TUTTLE, ULSTER TOWNSHIP SUPERVISOR, GEORGE NICHOLS, POLICE OFFICER, BRYAN ROGERS, DEFENDANTS



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Plaintiffs Donald L. Roach, his wife Deneen Roach, and their children, Matthew and Hannah Roach, brought this action against certain Ulster Township officials,*fn1 John Adams, Jr., Cathy A. Cook, and Bryan Rogers. Donald Roach alleges violation of his constitutional rights stemming from a July 10, 2007 incident in which he was charged with disorderly conduct for allegedly "mooning" his neighbors. Donald Roach, his wife, and his children also maintain claims against Cathy Cook for defamation.

Each of the Defendants has filed motions to dismiss. Because Plaintiffs acknowledge that they are not pursuing claims for the denial of the due process clauses of either the Fifth or Fourteenth Amendments, the motions to dismiss those claims in Count I will be granted. Furthermore, because Plaintiff have failed to plead a claim cognizable under the anti-conspiracy provisions of 42 U.S.C. § 1985(3),*fn2 the civil rights conspiracy claim asserted pursuant to that section will be dismissed. In all other respects, the motions to dismiss will be denied.

I. BACKGROUND

On June 13, 2008, Plaintiffs Donald Roach, Deneen Roach, Matthew Roach, and Hannah Roach filed a six count complaint against Defendants, asserting three common law malicious prosecution claims, a defamation claim, a 42 U.S.C. § 1983 claim, and a civil conspiracy claim under 42 U.S.C. § 1985(3). (Comp., Dkt. 1.) On September 30, 2008, Plaintiffs filed an Amended Complaint, presenting the same six causes of action. (Amend. Comp., Dkt. 30.)

In 2007, Donald Roach had previously sued Ulster Township Chief of Police Kenneth Marrow in the United States District Court for the Middle District of Pennsylvania for civil rights violations. (Id. at ¶ 19.) The case settled on or about May 22, 2007. (Id.) Plaintiffs allege that less than two months later, on July 10, 2007, Officer George Nichols "filed false charges of disorderly conduct against Plaintiff Donald Roach," for allegedly "'mooning' his neighbors by pulling his pants down and exposing his bare buttocks." (Id. at ¶ 20.) The neighbors who saw this alleged "mooning" were John Adams Jr., John Adams Jr.'s minor son Jay Adams, and Bryan Rogers. (Id.) Plaintiffs contend that, without probable cause, George Nichols "swore out a non-traffic citation and summons and executed an arrest" upon Donald Roach and "subjected him to an unlawful arrest, intermittent interrogation respecting various crimes, and at various times forced the Plaintiff Donald L. Roach to appear in court to answer for alleged crimes which he did not commit." (Id. at ¶ 22.) Donald Roach was charged with disorderly conduct in violation of 18 Pa. Cons. Stat. Ann. § 5503(a)(2).*fn3 (Id. at ¶ 23.) Plaintiffs aver that Nichols refused to conduct a factual investigation to support the charges and at the time of the arrest made specific reference to the prior lawsuit Donald Roach had filed, stating, "Well, you didn't sue me." (Id. at ¶¶ 24-25.)

Plaintiffs allege that the arrest was in retaliation for the previous lawsuit against Nichols' superior officer, Kenneth Marrow. (Id. at ¶ 26.) The charges were dropped on September 24, 2007, at a hearing before District Judge Timothy M. Clark in Bradford County. Plaintiffs aver:

Following the dismissal of the charge of disorderly conduct against the Defendant Donald Roach, on or about October 10, 2007, the Defendant Kenneth Marrow re- filed the summary offense charge of disorderly conduct, and according to his affidavit of probable cause, 'After reviewing the written statements of the victims, including the juvenile, I felt that it was appropriate to add the additional charge of Open Lewdness.' Kenneth Marrow added an additional misdemeanor offense charge of open lewdness pursuant to Title 18 of the Pennsylvania Crimes Code, sub-section 5901, and again re-filed the criminal charge of Disorderly Conduct, which was eventually listed or charged in the criminal information as two additional summary offense level counts of Disorderly Conduct, pursuant to Title 18 of the Pennsylvania Crimes Code, sub-section 5503(a)(3) and (a)(4).*fn4

(Id. at ¶ 28) (footnote added). Plaintiffs aver that Marrow re-filed and added charges intentionally, willfully, maliciously, and without probable cause. (Id. at ¶ 29.) Plaintiffs also contend that Marrow lied to the Bradford County District Attorney's Office, lied in his criminal complaint, and that "at all times swore out a false and fraudulent warrant for the prosecution, charge, and arrest of the Plaintiff Donald Roach." (Id. at ¶¶ 29-30.) Plaintiffs aver that Marrow took the above-stated action in retaliation for the earlier lawsuit. (Id. at ¶ 32.)

Prior to Donald Roach's criminal trial, Defendant Kenneth Marrow was fired from his position as Chief of Police and George Nichols was fired from his position as police officer. (Id. at ¶¶ 34-35.) Before trial, the Bradford County District Attorney's Office dismissed or withdrew the disorderly conduct charge that had been brought under 18 Pa. Cons. Stat. Ann. § 5503(a)(3) (using obscene language or making an obscene gesture), and the open lewdness charge brought pursuant to 18 Pa. Cons. Stat. Ann. § 5901. (Id. at ¶ 36.) At the conclusion of the Commonwealth's case, the trial court dismissed the remaining charges. (Id. at ¶ 38.)

John Adams Jr., his son Jay Adams, and Bryan Rogers each testified as witnesses against Donald Roach during the criminal trial. Plaintiffs aver that each or these persons committed perjury. (Id. at ¶¶ 39-42.) Plaintiffs aver that none of the acts Donald Roach was accused of took place, and he "never exposed his bare buttocks or 'mooned' his neighbors." (Id. at ¶ 43.)

Plaintiffs contend that Donald Roach was "subjected to public humiliation and distress by being haled into court on false, frivolous, and fraudulent criminal charges and by having his name published in the local newspaper on several occasions as being accused of said criminal charges." (Id. at ¶ 45.) Moreover, they allege that Donald Roach's "reputation in the community was damaged by the false accusations of being a criminal", that he "suffered severe and extreme anxiety because of having to face the false, fraudulent, and unlawful criminal charges lodged against him," and that he "suffered an ongoing chilling of his First Amendment Rights to political speech, free association, and access to the courts." (Id.) Plaintiffs further allege that both Kenneth Marrow and George Nichols acted willfully in concert with others to deprive Donald Roach of his constitutional rights. (Id. at ¶ 48.)

Plaintiffs allege upon information and belief that Charles Cotter and Donald Tuttle, Supervisors of the Township of Ulster, actively encouraged, instructed, and/or directed Kenneth Marrow and/or George Nichols to file false and fraudulent charges in order to retaliate against Donald Roach for his prior civil lawsuit. (Id. at ¶¶ 51, 53.) Plaintiffs contend that Cotter and Tuttle were "angry that instead of being able to hide the illegal acts and the liability of the Township of Ulster, the news of both the lawsuit, the settlement, and the payment were published in at least two detailed articles in the local newspaper." (Id. at ¶¶ 51, 53.) Plaintiffs aver that Cotter and Tuttle intended to deprive Donald Roach of his constitutional rights. (Id. at ¶¶ 50, 52.)

Plaintiffs aver that Cathy Cook, who is John Adam Jr.'s sister, is a "well-known local gossip and troublemaker," and that while "[a]cting in her self-appointed role as vindictive troublemaker in the community," she "used her influence and political power with her brother and all of the Defendants to encourage them to retaliate against" Donald Roach because he had filed the prior civil action. (Id. at ¶¶ 54-55.) Plaintiffs also allege that Cathy Cook published a series of false and defamatory emails to several local influential members of the community, including the Recreation Board. Plaintiffs aver that news of the prior civil settlement was published in the local newspaper on June 8, 2007, and that on July 11, 2007, the day after the "new" charges were filed, a second article was published. (Id. at ¶ 62.)

Plaintiffs contend that on July 11, 2007, the Defendants: intent on revenge, whipped themselves into a frenzy and conspired together to hatch a plot to retaliate against the Plaintiff Donald Roach for 'beating' them by exposing their prior illegal activities alleged at civil action 4:CV[07] --0010 and securing a monetary settlement against the township of Ulster, and actively sought from that point forward to lie and make up any possible false charge for what they perceived Donald L. Roach had done to them, when in reality they all jointly and severally, sought to continue to violate the civil rights of the Plaintiff Donald Roach at all times, and either convict him of crimes, imprison him on false charges, and/or drive the Plaintiff Donald L. Roach and his family from the community.*fn5

(Id.) (footnote added).

Plaintiffs claim that the Defendants sought to discriminate against Donald Roach because of his status as a disabled individual, purporting to invoke the Americans with Disabilities Act. (Id. at ¶ 63.) Specifically, Plaintiffs allege that Donald Roach is "both mentally and physically disabled with the mental disability of severe depression, paranoia, schizophrenia, and has the physical disability of degenerative disc disease, arthritis, clubfoot, and a left knee with 6 staples in it." (Id. at ¶ 5.) Plaintiffs aver that the Defendants asserted that Donald Roach "was an individual of low character and was 'freeloading' off of the government because he was collecting disability benefits and/or a disability pension, and was otherwise unable to prove to any or all of the Defendants' satisfaction that he was worthy of being a member of their community." (Id.) Plaintiffs further aver that Donald Roach "was made to suffer great emotional trauma, discomfort, and embarrassment, was deprived of his liberty, his personal and professional reputation was impaired, and he was forced to again retain counsel and pay counsel fees at great personal expense." (Id. at ¶ 64.) Plaintiffs aver:

The acts alleged above were committed either on the instruction of Defendants Kenneth Marrow, Chief of Police, and/or were thereafter approved and ratified by Ulster Township Supervisors Charles Cotter and Donald Tuttle, with their knowledge, approval, and consent, as well as the knowledge, instigation, influence, and/or participation of Kenneth Marrow's inferior officer, Defendant George Nichols, and Defendants John Adams, Jr., Cathy A. Cook, and Bryan Rogers. (Id. at ¶ 65.)

Plaintiffs present six causes of action: 1) violation of Plaintiff Donald Roach's rights by all Defendants, brought pursuant to 42 U.S.C. § 1983; 2) conspiracy to violate Donald Roach's rights against all Defendants, brought pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3); 3) defamation of Donald, Deneen, Matthew, and Hannah Roachs' character by Cathy Cook; 4) malicious prosecution of Donald Roach by John Adams, Jr.; 5) malicious prosecution of Donald Roach by Bryan Rogers; and 6) malicious prosecution of Donald Roach by Bryan Rogers and John Adams, Jr. Defendants have individually filed four motions to dismiss. The motions have been fully briefed and are ripe for review.

II. DISCUSSION

A. Standard of Review

The court's task on a Rule 12(b)(6) motion to dismiss for failure to state a claim is to "determine whether, under any reasonable reading of the pleadings, the plaintiffs may be entitled to relief." Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). In doing so, all factual allegations and all reasonable inferences drawn therefrom are assumed to be true. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). "The complaint will be deemed to have alleged sufficient facts if it adequately puts the defendants on notice of the essential elements of the cause of action." Id.

The court, however, need not accept as true a complaint's "bald assertions" or "legal conclusions." In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). Thus, a Rule 12(b)(6) motion does not serve to question a plaintiff's well-pled facts, but rather tests the legal foundation of the plaintiff's claims. United States v. Marisol, Inc., 725 F. Supp. 833, 836 (M.D. Pa. 1989).

The Supreme Court recently abrogated its longstanding decision in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which had held that a complaint may be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." The Court retired this "no set of facts" language in favor of a new standard: a plaintiff's obligation to state a claim for relief under Rule 8(a)(2) "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). As a result of Twombly, plaintiffs are required to nudge their claims "across the line from conceivable to plausible." Id. To state a claim consistent with the language of Fed. R. Civ. P. 8(a)(2), which requires only a "short and plain statement of the claim showing that the pleader is entitled to relief," a complaint must contain factual allegations sufficient "to raise a right to relief above a speculative level." Id. "[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). As such, courts may dismiss a complaint if it fails to "contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 127 S.Ct. at 1969; see also Phillips, 515 F.3d at 234 (in order to survive a motion to dismiss, a plaintiff must allege in his complaint "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a particular cause of action).

More recently, the Court in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (May 18, 2009), reiterated that Rule 8 "does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Consequently, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n]' -- 'that the pleader is entitled to relief,'" and the complaint should be dismissed. Id.

B. Count II- Conspiracy

1. 42 U.S.C. ยง 1985(3) ...


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