The opinion of the court was delivered by: Magistrate Judge Cathy Bissoon
Pending before the Court are Motions to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants Allegheny County District Attorney‟s Office and Chris Avetta ("DA Defendants") (Doc. 10) and by Defendant Nicholas Mollo ("Defendant Mollo") (Doc. 15). Because of the legal and factual similarities between these two motions, the Court addresses them together. For the reasons set forth herein, the Court grants in part and denies in part the DA Defendants‟ Motion to Dismiss and grants Defendant Mollo‟s Motion to Dismiss in its entirety.
This action arises out of allegedly wrongful conduct perpetrated by Defendants Nicholas Mollo of the University of Pittsburgh Police Department, Allegheny County Assistant District Attorney Chris Avetta, the Allegheny County District Attorney‟s Office and Allegheny County. Plaintiff asserts three claims: (i) a claim for retaliation for the exercise of his rights under the First Amendment; (ii) a claim for malicious prosecution under the Fourth Amendment; and (iii) a claim for false arrest and false imprisonment in violation of the Fourth Amendment. See generally Compl. (Doc. 1.)
Plaintiff was arrested on April 29, 2009, for violating Pennsylvania‟s Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S.A. § 5701, et seq. ("Wiretap Act" or "Act"). (Compl. ¶ 42-43.) Plaintiff, with his cellular telephone, recorded a conversation between Defendant Nicholas Mollo, a University of Pittsburgh Police Officer, and Tamisha Evonne Singletary ("Vonn"). (Compl. ¶ 35.) Defendant Mollo asked Plaintiff whether he had used his cell phone to record the officers and, also notably, whether his cell phone recorded both the video and audio aspects of the incident. Id. at ¶ 41. After responding that he had made both an audio and video recording of the incident, Defendant Mollo told Plaintiff "that he had not consented to the recording of his voice and that he was placing [Plaintiff] under arrest." (Compl. at ¶¶ 41-43.)
After Plaintiff was arrested, and while he was being held in a holding cell at the University of Pittsburgh Police Station, Defendant Mollo contacted the Allegheny County District Attorney‟s Office and spoke to the "DA on duty," Assistant District Attorney Chris Avetta, "to confirm his understanding of the law." Id. at ¶¶48-51. Mr. Avetta advised Defendant Mollo that Plaintiff‟s actions violated the Wiretap Act. Id. Plaintiff then was transported to the Allegheny County Jail and after an arraignment later that night, was released on non-monetary condition bail. Id. at ¶¶ 54-55.
Defendant Avetta argues that all of Plaintiff‟s claims against him should be dismissed based on absolute immunity. Specifically, Defendant Avetta asserts that "Plaintiff‟s claim is that [he] ratified Plaintiff‟s arrest, failed to stop Officer Mollo from charging Plaintiff, or failed to drop the charge." (Mem. in Supp. of Motion (Doc. 11) ("DA Defs‟ Br"). at 3.) Accordingly, he argues that "a decision whether to charge a defendant is central to initiating prosecution and is subject to absolute immunity." Id. To the extent Plaintiff‟s claims against Defendant Avetta relate to any decisions he made concerning Plaintiff‟s prosecution, the Court agrees. However, as to the crux of Plaintiff‟s allegations against Defendant Avetta, e.g., that he improperly provided legal advice to Defendant Mollo about the propriety of the arrest, the Court disagrees that absolute immunity applies.*fn1
A prosecutor "bears the "heavy burden‟ of establishing entitlement to absolute immunity." Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008). Absolute immunity is to be recognized in "quite sparing" circumstances and the presumption is that "qualified rather than absolute immunity is appropriate." Id. (citing Carter v. City of Philadelphia, 181 F.3d 339 (3d Cir. 1999)). To analyze whether absolute immunity is appropriate, the focus is on the prosecutor‟s function and the conduct or act at issue must be narrowly defined. Id. at 213. Absolute immunity is appropriate where a prosecutor can "show that he or she was functioning as the state‟s advocate when performing the action(s) in question." Id. at 208. Thus, "immunity attaches to actions "intimately associated with the judicial phases of litigation,‟ but not to administrative or investigatory actions unrelated to initiating and conducting judicial proceedings." Id. (quoting Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994).) "[T]he period during which prosecutors are most likely functioning in a "quasi-judicial‟ capacity is the time between indictment and dismissal, acquittal, or conviction." Id. at 211 (citing Yarris v. County of Delaware, 465 F.3d 129 (3d Cir. 2006).)
The crux of Plaintiff‟s allegations against Defendant Avetta involves Mr. Avetta‟s act of providing his opinion to Defendant Mollo as to whether Plaintiff‟s cell phone recording violated Pennsylvania‟s Wiretap Act. (Compl. at ¶ 51.) Contrary to Defendant Avetta‟s assertions, this act did not occur "during the prosecution phase of Plaintiff‟s criminal case." (DA Def‟s Reply at 1.) Based on Plaintiff‟s allegations, at the time that Defendant Avetta rendered his opinion, Plaintiff had not been arraigned. (Compl. ¶¶ 43, 47-55.) Defendant Mollo contacted Defendant Avetta "to confirm his understanding of the law," not to seek permission to arrest Plaintiff. (Compl. ¶ 50-51.) Moreover, he contacted Defendant Avetta as the "DA on duty" who allegedly "was responsible for giving immediate advice to law enforcement officers who called the office." (Compl. ¶ 51). In his role as the "DA on duty," Defendant Avetta merely "advised" that Plaintiff‟s actions "in the manner described [by Defendant Mollo] violated the Pennsylvania Wiretap Act." (Compl. ¶ 51.) Notably, Plaintiff does not allege that Defendant Avetta ordered or advised Defendant Mollo to do anything relative to Plaintiff‟s arrest or the criminal complaint that he ultimately filed against Plaintiff.
The Court concludes that Defendant Avetta‟s conduct in rendering his opinion on the propriety of Plaintiff‟s arrest was administrative and not "intimately associated" with the judicial phases of Plaintiff‟s prosecution. Indeed, the circumstance in which Defendant Avetta allegedly became involved in this matter (e.g., as the "DA on duty") suggests a non-prosecutorial advisory role, rather than the traditional prosecutorial one in which absolute immunity attaches. Stated differently, at the time that he rendered his opinion to Defendant Mollo, Defendant Avetta was not acting as an advocate on behalf of either Allegheny County or the Allegheny County District Attorney‟s Office. See Burns v. Reed, 500 U.S. 478, 493 (1991) (stating that "[w]e do not believe... that advising the police in the investigative phase of a criminal case is so "intimately associated with the judicial phase of the criminal process,‟ that it qualifies for absolute immunity"). Defendant Avetta, accordingly, is not entitled to absolute immunity for his conduct in rendering legal advice to Defendant Mollo.
Having reached this conclusion, the Court observes that Defendant Avetta asserts the defense of absolute immunity as to all of Plaintiff‟s claims, including Plaintiff‟s claim for malicious prosecution in Count II. In Count II, Plaintiff alleges that Defendants prosecuted Plaintiff "with malice" and "without any probable cause or reasonable basis for believing that Plaintiff violated Pennsylvania‟s Wiretap Act or committed any other crime in the Commonwealth of Pennsylvania." (Compl. ¶ 67.) As such, the focus of Plaintiff‟s allegations in Count II is on Defendant Avetta‟s role and function as a prosecutor, rather than his conduct in rendering advice to Defendant Mollo. Assuming that Plaintiff could maintain a malicious prosecution claim against Defendant Avetta,*fn2 the Court concludes that Defendant Avetta is absolutely immune from this claim. See Jones v. Middletown Twp., 253 Fed. Appx. 184, 190 (3d Cir. Nov. 8, 2007) (affirming dismissal of malicious prosecution ...