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Carl F. Schultz, Jr., Cindy Schultz v. Hughesville Borough

July 29, 2011

CARL F. SCHULTZ, JR., CINDY SCHULTZ, MELISSA SCHULTZ, AND BEAR & HUNTER, INC., T/D/B/A BIGDOGZ SPORTS BAR, PLAINTIFFS
v.
HUGHESVILLE BOROUGH, RICHARD SHEARER, KURT V. HOCKMAN, AND MICHAEL PALMETER, DEFENDANTS



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

This is a civil rights action filed by plaintiffs Carl F. Shultz, Jr., Cindy Schultz, Melissa Schultz, and Bear and Hunter, Inc., t/d/b/a BigDogz Sports Bar against the Borough of Hughesville ("Hughesville"), former Chief of the Hughesville Borough Police Department Richard Shearer ("Chief Shearer"), former Officer Kurt V. Hockman ("Officer Hockman") and Officer Michael Palmeter ("Officer Palmeter") of the Hughesville Borough Police Department . Presently before the court are two motions for summary judgment, one filed by defendants Hughesville Borough and Officer Palmeter (Doc. 59), and the other filed by defendants Chief Shearer and Officer Hockman (Doc. 56). For the reasons that follow, the court will grant in part and deny in part the motions.

I. Background*fn1

A. The Parties

Melissa Shultz ("Melissa") is the owner and principal operator of BigDogz Sports Bar ("BigDogz") located in Wolf Township, Pennsylvania, within walking distance of the Hughesville boundary line. (Doc. 58 ¶¶ 14, 37; Doc. 75 ¶¶ 14, 37; Doc. 64 ¶¶ 1-2; Doc. 74 ¶¶ 1-2). She is also President of the corporation Bear and Hunter Inc., a position retained since incorporation of the entity on March 4, 2005. (Doc. 58 ¶ 13, Doc. 75 ¶ 13). Carl Shultz ("Carl"), father of Melissa, is owner of Valley Beverage. (Doc. 58 ¶ 1; Doc. 75 ¶ 1). Carl spends time at BigDogz every day, but he has no ownership interest in the bar, nor is he an employee of the establishment. (Doc. 76, Ex. A, at 36-37; Doc. 58 ¶ 2; Doc. 75 ¶ 2). Cindy Shultz is Carl's wife and owner of Muncie Beverage. (Doc. 64 ¶ 3; Doc. 74 ¶ 3).*fn2

Defendants are Hughesville Borough and current or former members of the Hughesville Borough Police Department ("HBPD"). Former Hughesville Police Chief Richard Shearer began his law enforcement career in 1991. (Doc. 58 ¶ 39; Doc. 75 ¶ 39). He had two stints of employment with HBPD: a period from 1993 to 1995, and a period from January 1999 to February 2010. (Doc. 58 ¶¶ 41-42; Doc. 75 ¶¶ 41-42). Shearer became Chief of Police of HBPD in late 2007. (Doc. 58 ¶ 43; Doc. 75 ¶ 43). On February 8, 2010, the Hughesville Borough Council voted to terminate Chief Shearer's employment with Hughesville. (Doc. 80, Ex. NN). Officer Hockman began his employment with HBPD four years prior to the principal incident in this litigation-the June 6, 2009 traffic stop in the turn lane leading to BigDogz. (Doc. 63, Ex. J, at 58). Officer Palmeter began his employment with HBPD approximately one year prior to that incident. (Doc. 63, Ex. J, at 30).*fn3

B. The Conduct

Alleged Harassment

The instant litigation revolves around what plaintiffs believe to be the unlawful targeting of the BigDogz establishment by members of HBPD. BigDogz Sports Bar is located in Wolf Township, Pennsylvania, on State Route 220, near the border of Hughesville. Patrons of BigDogz access the establishment by way of a Pennsylvania Department of Transportation right-of-way turn lane. (Doc. 58 ¶ 47; Doc. 75 ¶ 47). Located across the street from BigDogz on State Route 220, also within Wolf Township jurisdiction, is a Citgo Pit Stop fuel station ("Pit Stop"). (Doc. 58 ¶ 38; Doc. 75 ¶ 38). Hughesville maintains a Citgo credit card for fueling its police cruisers, and officers frequently fuel their vehicles at the Pit Stop, sometimes after the Pit Stop convenience store is closed. (Doc. 58 ¶ 61; Doc. 75 ¶ 61). It is undisputed that HBPD does not possess, nor has it ever sought, jurisdiction to patrol within Wolf Township. (Doc. 58 ¶ 66; Doc. 75 ¶ 66).

Carl, Melissa, and Bear and Hunter, Inc. contend that, despite HBPD's lack of jurisdiction in Wolf Township, members of HBPD would park at the Pit Stop and watch BigDogz, intentionally conduct traffic stops in the turn lane leading to BigDogz, and follow BigDogz patrons and employees exiting the establishment. Carl, Melissa and employees of BigDogz report numerous comments and complaints from patrons about the police presence. (See e.g., Doc. 77, Ex. F, at 13-14; Doc. 77, Ex. E, at 15, 17; Doc. 77, Ex. G, at 22-24). Melissa testified that she frequently viewed officers filling up their police cruisers at the Pit Stop. (Doc. 64 ¶¶ 19, 22; Doc. 74 ¶¶ 19, 22). Employees and patrons of BigDogz observed HBPD cruisers at the Pit Stop on many occasions, sometimes not fueling but simply parked in a manner to observe the BigDogz establishment. (Doc. 77, Ex. F, at 10-13; Doc. 77, Ex. G, at 21-22; Doc. 77, Ex. I, at 9-10; Doc. 78, Ex. J, at 12-14). Several patrons reported being followed by HBPD after exiting the BigDogz establishment or Carl's business, Valley Beverage. (Doc. 76, Ex. D, at 11-14; Doc. 77, Ex. E, at 9, 12, 13 Doc. 77, Ex. F, at 10-12; Doc. 77, Ex. H, at 13-14, 18; Doc. 77, Ex. I, at 11-13; Doc. 78, Ex. J, at 20-21). Additionally, employees reported numerous traffic stops by HBPD in BigDogz' turn lane. (Doc. 77, Ex. E, at 15-16).

Chief Shearer testified that he received almost daily complaints from Carl or others at BigDogz regarding HBPD conduct outside the Borough near the BigDogz establishment. (Doc. 79, Ex. Q, at 25). Chief Shearer also reported conducting over 100 traffic stops in his career with HBPD in the vicinity of BigDogz. (Doc. 79, Ex. P, at 124-125). In addition to their complaints to HBPD about police monitoring, Carl and Melissa contacted their state representative, also their attorney, Garth Everrett, Esquire, about HBPD conduct. (Doc. 76, Ex. A, at 11). Everrett, in turn, contacted the mayor of Hughesville, Frank Welsh,*fn4 about HBPD presence near BigDogz. (Doc. 78, Ex. M, at 62-63). On one occasion, Carl contacted Mayor Welsh directly to complain about HBPD police cruisers sitting at the Pit Stop. (Doc. 78, Ex. M, at 62). Chief Shearer spoke with Mayor Welsh about these complaints, and Mayor Welsh issued a directive to HBPD to refrain from responding to calls about BigDogz or Valley Beverage without Pennsylvania State Police presence on the scene. (Doc. 79, Ex. P, at 70-72). Neither Carl or Melissa registered complaints directly with the Hughesville Borough Council about alleged police harassment. (Doc. 58 ¶¶ 21, 87; Doc. 75 ¶¶ 21, 87). Nevertheless, according to Chief Shearer, Hughesville Borough Council was aware of the complaints and Mayor Welsh's directive. (Doc. 79, Ex. P, at 70-72).

June 6, 2009 Traffic Stop

Conflict between the parties reached a boiling point on June 6, 2009. At approximately 9:48 p.m. that evening, Officer Palmeter initiated a lawful traffic stop of a motorcyclist in the Route 220 turn lane leading to BigDogz. (Doc. 58 ¶¶ 91-92; Doc. 75 ¶¶ 91-92). Suspecting a DUI violation, Officer Palmeter radioed Officer Hockman-a field sobriety test certified officer-for backup. (Doc. 58 ¶ 93; Doc. 75 ¶ 93). When Officer Hockman arrived, he pulled in behind Officer Palmeter's vehicle and activated his dashboard camera video and audio recording device. (Doc. 81, Ex. HH). As Officer Palmeter was escorting the motorcyclist to the rear of the police cruiser Carl Schultz approached the officers in the turn lane and inquired "you guys gonna be out here that much longer, its ten o'clock." (Doc. 58 ¶¶ 94-95; Doc. 75 ¶¶ 94-95). Officer Palmeter responded that the stop would last as long as necessary to handle situation and explained: "I know it's ten o'clock, but you need to get going . . . wherever you're going you can't be here - Okay?" (Doc. 81, Ex. HH). Officer Hockman engaged Carl in a discussion as to his involvement in the traffic stop. Carl claimed that the traffic stop was taking place on his property (Doc. 58 ¶¶ 105, 108; Doc. 75 ¶¶ 105, 108; Doc. 79, Ex. Q, at 63), and told Officer Hockman that he intended to telephone his attorney about the police conduct. (Doc. 58 ¶ 99; Doc. 75 ¶ 99). Carl retreated some distance from the traffic stop into the BigDogz parking lot-the exact distance is disputed-and proceeded to make a telephone call. (Doc. 58 ¶¶ 109, 110; Doc. 75 ¶¶ 109, 110). As a result of Carl's interaction with the police stop, Officer Hockman radioed Chief Shearer for backup. (Doc. 58 ¶ 102; Doc. 75 ¶ 102). Thereafter, Carl returned to the entrance area of Bigdogz. (Doc. 81, Ex. II).

When Chief Shearer arrived at the scene Officer Hockman advised him that Carl was interfering with the traffic stop. (Doc. 58 ¶ 115; Doc. 75 ¶ 115). Officer Hockman provided Chief Shearer with the microphone device from his police cruiser and together they proceeded to BigDogz to speak with Carl. (Doc. 58 ¶¶ 116-117; Doc. 75 ¶¶ 116-117). The parties dispute whether the microphone was visible during the ensuing conversation. Chief Shearer opened the door to the establishment and requested that Carl step outside to speak with the officers. (Doc. 58 ¶ 123; Doc. 75 ¶ 123). After some hesitance, Carl exited along with an employee of BigDogz. (Doc. 81, Ex. HH). Chief Shearer warned Carl that if he ever interfered with another traffic stop again, he would be arrested. (Id.) Carl maintained that the traffic stop occurred on his property, and stated that he was tired of police intimidation of his clientele. (Id.) The officers explained that they were not attempting to harm BigDogz business, that they were simply doing their job, and that they could not control where individuals pulled over during traffic stops. (Id.) Carl informed the officers that the parties would have to settle the matter in court. (Id.) Officer Hockman and Chief Shearer returned to their patrol cars, and Chief Shearer returned the microphone to Officer Hockman. (Id.) A discussion ensued about contacting the Pennsylvania Liquor Control Board ("PLCB") to report Carl's conduct. Later that night, Officer Hockman contacted the PLCB and filed a complaint. (Doc. 80, Ex. V).

Charges Against Carl Shultz

After speaking with Officers Hockman and Palmeter about Carl's conduct during the traffic stop and after reviewing the police cruiser dashboard camera video, Chief Shearer prepared a criminal complaint and affidavit of probable cause against Carl. (Doc. 58 ¶ 128; Doc. 75 ¶ 128; Doc. 64 ¶ 11; Doc. 74 ¶ 11). The criminal complaint charged Carl with obstructing the administration of law or other government functions and disorderly conduct pursuant to Pennsylvania Criminal Code sections 5101(a) and 5503. (Doc. 58 ¶ 130; Doc. 75 ¶ 130). Chief Shearer did not discuss his decision to file the criminal complaint with Officers Hockman or Palmeter. (Doc. 58 ¶ 129; Doc. 75 ¶ 129; Doc. 64 ¶ 9; Doc. 74 ¶ 9). However, prior to filing, Chief Shearer sought the approval of Assistant Lycoming County District Attorney Henry Mitchell ("ADA Mitchell"). (Doc. 58 ¶ 131; Doc. 75 ¶ 131). ADA Mitchell reviewed and approved the complaint based on the information contained in the documents, but without viewing the video of the traffic stop. (Doc. 80, Ex. DD). The complaint issued on June 12, 2009 and Carl received the summons and a fingerprint order by certified mail. (Doc. 76, Ex. A, at 23). The fingerprint order required Carl to report to HBPD within three weeks for fingerprinting and photographing.

Williamsport Sun Gazette Newspaper Article On July 2, 2009, shortly after Chief Shearer filed charges against Carl, the Williamsport Sun Gazette published an article about two incidents occurring at BigDogz. (Doc. 63, Ex. K, at 2). The article mistakenly identified Carl as the owner of the bar, and reported the charges filed against him for allegedly interfering with a traffic stop in front of the establishment on June 6, 2009. (Id.) The other reported incident involved an unruly patron who was asked to leave the establishment and damaged some property in the parking lot before attempting to flee from police. (Doc. 63, Ex. K, at 2). There is no evidence that Chief Shearer or Officer Hockman had any contact with the newspaper regarding the article. (Doc. 58 ¶ 134, 138; Doc. 75 ¶ 134, 138).Ostensibly, the author of the article procured the factual basis for the article from public court documents. (Doc. 58 ¶ 135; Doc. 75 ¶ 135).

Preliminary Hearing and Subsequent Dismissal of Charges On September 17, 2009, the Honorable District Justice C. Roger McRae in the Lycoming County Magisterial District Court held a preliminary hearing on the charges. (Doc. 79, Ex. Q). The dashboard camera video was not displayed or otherwise entered into evidence during the preliminary hearing. (Id.) Subsequent to the testimony of Chief Shearer, Officer Palmeter and Officer Hockman, Judge McRae bound the charges over to the Court of Common Pleas of Lycoming County for trial. (Doc. 58 ¶ 132; Doc. 75 ¶ 132). Judge McRae released Carl on an unsecured, non-monetary bail, ordered Carl to refrain from any contact with potential Commonwealth witnesses and directed him to apprise the court of any change of address. (Doc. 18, ex. F). Prior to trial, on January 11, 2010, ADA Mitchell nol prossed the charges against Carl. (Doc. 80, Ex. DD ¶ 7). By sworn affidavit, Attorney Mitchell stated that, after viewing the dashboard camera audio and video, he "did not believe probable cause existed to continue the case." (Doc. 80, Ex. DD ¶¶ 5-6).

Continuing Harassment and Complaints

On February 3, 2010, plaintiffs filed their initial complaint in this court alleging civil rights violations pursuant to 42 U.S.C. § 1983. (See Doc. 1). Subsequent to filing the complaint, plaintiffs allege continuing harassment by members of the HBPD, including continued surveillance of Valley Beverage and BigDogz. (Doc. 58 ¶ 144; Doc. 75 ¶ 144). Carl reports being followed by HBPD after leaving BigDogz. (Doc. 80, Ex. FF ¶¶ 38, 39). Beginning in July 2010, Carl, along with other BigDogz employees, have maintained notes regarding the dates, times, and locations of HBPD presence near the BigDogz establishment. (Doc. 64 ¶¶ 28, 32-33; Doc. 74 ¶¶ 28, 32-33). Neither Chief Shearer, who was released from employment with Hughesville in February 2010, nor Officer Hockman have been involved in these recent activities. (Doc. 58 ¶ 145; Doc. 75 ¶ 145). Carl admits that HBPD surveillance diminished after Chief Shearer's termination, and HBPD conduct no longer interferes with BigDogz business. (Doc. 80, Ex. FF ¶¶ 45, 46).

Prior HBPD Conduct

Plaintiffs contend that the Borough of Hughesville condoned the targeting of BigDogz and the filing of criminal charges against Carl. The record reflects several incidents of alleged misbehavior by HBPD officers- particularly Chief Shearer-extending back to 2000. In 2000, an individual sued Chief Shearer for civil rights violations relating to an arrest which occurred outside the jurisdiction of Hughesville. (Doc. 81, Ex. MM). The matter apparently settled prior to trial. (Doc. 64 ¶ 38; Doc. 74 ¶ 38). In 2000, Shearer took a cup of coffee from a Hughesville mini mart without paying. (Doc. 64 ¶ 39; Doc. 74 ¶ 39). The clerk requested that Shearer pay, but he refused. (Doc. 64 ¶ 40; Doc. 74 ¶ 40). Shearer testified that the incident was a misunderstanding, as there was a prior practice of providing free coffee to police officers. (Doc. 63, Ex. C, at 7). As a result of the coffee incident, Hughesville suspended Shearer for six weeks. (Doc. 64 ¶ 40; Doc. 74 ¶ 40). An internal investigation prompted by the coffee incident concluded that Shearer was "over zealous" at times, but it did not recommend his dismissal from the force. (Doc. 81, Ex. KK, at 4). Another incident involved the alleged confiscation of citizens' firearms by the HBPD. (See Doc. 18 ¶ 130; Doc. 74 ¶ 41). Plaintiffs also allege an incident in which Chief Shearer and Officer Hockman purportedly seized and searched the cellular telephones of teenage girls. (Doc. 64 ¶¶ 44; Doc. 74 ¶¶ 44).

Shearer denies any knowledge of, or involvement in, this alleged search and seizure. (Doc. 64 ¶¶ 44-45; Doc. 74 ¶¶ 44-45).

Former Hughesville Borough Police Chiefs gave Chief Shearer a series of reprimands, verbal and written, related to various activities outside the Borough and related to HBPD procedural issues. In January of 2005, then Chief of Police Randy Eddinger delivered a memorandum to Officer Shearer noting "several times" when Shearer handled incidents outside Hughesville. The memorandum warned Officer Shearer that such conduct violated a prior memorandum and that future violations would be punished with suspensions. (Doc. 80, Ex. W). Former Hughesville Chief of Police Joseph Walker stated that he gave numerous verbal reprimands to Shearer regarding Shearer's activity outside of Hughesville's jurisdiction and reported Shearer's conduct to Mayor Edner. (Doc. 81, Ex. GG ¶¶ 9, 10-11, 16). In 2002 and 2007 Shearer received a written order and warning regarding his failure to follow HBPD procedure and his failure to call activity into the county dispatcher. (See Doc. 80, Ex. OO; Doc. 80, EX. QQ).

The record reflects that, to a certain extent, the mayors of Hughesville were cognizant of the public's concerns with HBPD. After Mayor Welsh took office, he issued a memorandum stating that "accountability was a foreign concept within the police department." (Doc. 80, Ex. U). Later, Mayor Welsh clarified his statement as referring to time and financial accountability necessary to run an efficient department. (Doc. 78, Ex. M, at 38). Hughesville Mayor Walter Reed learned of Carl Shultz's complaints about HBPD officers sitting at the Pit Stop prior to taking office in January 2010. (Doc. 58 ¶¶ 62, 89; Doc. 75 ¶¶ 62, 89; (Doc. 64 ¶ 51; Doc. 74 ¶ 51). Reed testified that he personally conducted an investigation about whether officers remained at the Pit Stop for extended periods of time and did not find any impropriety. (Doc. 58 ¶ 63; Doc. 75 ¶ 63; Doc. 64 ¶ 52; Doc. 74 ¶ 52).

C. Procedural History

Plaintiffs filed their initial complaint on February 3, 2010, and an amended complaint on May 5, 2010, asserting thirteen counts against Chief Shearer, Officer Hockman, Officer Palmeter and Hughesville, including First, Fourth, and Fourteenth Amendment claims under the federal Constitution and state law claims for malicious prosecution, intentional infliction of emotional distress, defamation, invasion of privacy, and violation of the Wiretapping and Electronic Surveillance Control Act, 18 PA. CONS. STAT. § 5701 et seq. (Doc. 18). On June 18, 2010, Officer Palmeter and Hughesville Borough filed a motion to dismiss. (See Doc. 28). By memorandum and order dated December 13, 2010, the court granted the motion in part. (Doc. 54). On January 4, 2011, Officer Palmeter and Hughesville filed one of the two motions for summary judgment presently before the court. (Doc. 59). Chief Shearer and Officer Hockman filed the second motion on the same day. (Doc. 56). The motions have been fully briefed and are ripe for disposition.*fn5

II. Standard of Review

Through summary adjudication the court may dispose of those claims that do not present a "genuine dispute as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(a). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(a), (c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

III. Discussion

Section 1983 of Title 42 of the United States Code offers private citizens a means to redress violations of federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress Id. Section 1983 is not a source of substantive rights, but merely a method to vindicate violations of federal law committed by state actors. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish a claim under this section, the plaintiff must show a deprivation of a "right secured by the Constitution and the laws of the United States . . . by a person acting under color of state law." Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)). For purposes of § 1983, a corporation is a person who may bring suit for deprivation of rights secured under the Constitution. See Safeguard Mut. Ins. Co. v. Miller, 472 F.2d 732, 733 (3d Cir. 1973) (citing Pierce v. Soc'y of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 535 (1925)); Des Vergnes v. Seekonk Water Dist., 601 F.2d 9, 17 (1st Cir. 1979); see also Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 407 n.6 (3d Cir. 2005) (corporation has standing to bring constitutional claims on its behalf); Gwynedd Properties, Inc. v. Lower Gwynedd Twp., 970 F.2d 1195 (3d Cir. 1992) (corporation brought § 1983 action against Township for violation of due process rights); Levy v. Pappas, 510 F.3d 755, 762 (7th Cir. 2007) ("Generally speaking, a corporation may sue under § 1983.") abrogated on other grounds by Levin v. Commerce Energy, Inc., --- U.S. ---, 130 S. Ct. 2323, 2330 (2010).

Carl, Melissa and Bear and Hunter, Inc. allege violations of their First, Fourth, and Fourteenth Amendment rights, as well as state law claims for malicious prosecution, defamation, invasion of privacy, and Wiretapping and Electronic Surveillance Control Act, 18 PA. CONS. STAT. § 5701 et seq, violations against Hughesville, Chief Shearer, Officer Hockman, and Officer Palmeter.

A. Fourth Amendment Claims

1. Malicious Prosecution

Carl asserts a Fourth Amendment malicious prosecution claim against Chief Shearer, Officer Hockman and Hughesville.*fn6 To prevail on Fourth Amendment malicious prosecution claim in a § 1983 action, Carl must show: (1) defendants initiated a criminal proceeding; (2) the criminal proceeding terminated in Carl's favor; (3) the proceeding was initiated without probable cause; (4) defendants acted maliciously or for a purpose other than bringing Carl to justice; and (5) Carl suffered a deprivation of liberty consistent with the concept of seizure as a consequence of the legal proceeding. McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009) (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). A prosecution instituted without probable cause does not, by itself, constitute a deprivation of a constitutional right; rather, it is the deprivation of constitutional rights that accompany the prosecution-such as the constitutional right to be free from unwarranted seizures-that provides the basis for a Fourth Amendment malicious prosecution claim. Dibella v. Borough of Beechwood, 407 F.3d 599, 602-03 (3d Cir. 2005) (citing Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998). Mere attendance at trial is insufficient to constitute a Fourth Amendment seizure. Id. at 603.

Chief Shearer and Officer Hockman assert that Carl cannot satisfy the "seizure" element of a § 1983 malicious prosecution claim because he was never taken into custody, arrested, handcuffed or placed in a holding cell. (Doc. 57, at 7). Carl contends that the seizure element is satisfied because he was held in pretrial custody when he reported to the police department for fingerprinting and photographing. (Id. at 14-15). Moreover, he argues that he "suffered onerous pretrial restrictions," including the posting of bail in the amount of $2,000, a requirement to advise the court of any change in address, and a prohibition against contact with potential Commonwealth witnesses. (Id.) Carl contends that the latter restriction prevented him from addressing continued harassment by HBPD. (Id. at 15-16).

Arrest, detention and/or the placement of an individual in handcuffs are not the only means to establish seizure. See Gallo, 161 F.3d at 222-23. Particularly onerous pretrial restrictions may constitute a seizure. Id. at 222-25. For example, in Gallo v. City of Philadelphia, the Third Circuit held that Gallo was seized for purposes of his Fourth Amendment malicious prosecution claim when he was required to post a $10,000 bond, attend all court hearings, contact pretrial services on a weekly basis, and he was prohibited from traveling outside of New Jersey or Pennsylvania. Id. at 222. Deeming it a "close question" the court concluded that the combination of restrictions amounted to a seizure. Id. at 225. By contrast, in Dibella v. Borough of Beachwood, 407 F.3d 599 (3d Cir. 2005), the Third Circuit concluded that plaintiffs failed to establish that they were "seized" for Fourth Amendment purposes-plaintiffs were only issued a summons, they were never arrested; they never posted bail; they were free to travel; they were not required to report to pretrial services; and, the only time their liberty was restricted was during the Municipal Court trial. Id. at 603; see also Bristow v. Clevenger, 80 F. Supp. 2d 421, 429-30 (M.D. Pa. 2000) (finding that plaintiff was not seized for purposes of Fourth Amendment malicious prosecution claim where she was fingerprinted and photographed, attended a pretrial conference, and attended a judicial proceeding in which the district attorney's office withdrew the criminal charges against her).

In the instant matter, Carl was neither taken into custody nor arrested. He was never handcuffed or placed in a holding cell. After Judge McRae bound over the charges, he released Carl on unsecured signature bail. The only additional restrictions required Carl to notify the court of any change in address and to refrain from contact "with any potential Commonwealth witnesses." Unlike Gallo, Judge McRae did not require Carl to contact pretrial services on a weekly basis, and the court placed no restrictions on his travel. Carl argues that, during the fingerprinting process, Officer Hockman detained Carl for an extended period of time due to issues with his social security number. Carl's criminal defense attorney in the matter, Kyle Rude, Esquire, who was present with Carl during the fingerprinting process, stated that the delay with Carl's social security number lasted ten minutes. (Doc. 80, Ex. EE ¶ 6). Carl, on the other hand, describes a longer delay-between fifteen and thirty minutes. (Doc. 80, Ex. FF ¶ 28). This distinction is immaterial to the court's analysis. A delay of thirty minutes or less does not rise to the level of a Fourth Amendment "seizure." See Bristow, 80 F. Supp. 2d at 430 (finding that criminal processing, including fingerprinting and photographing, did not amount to a seizure); see also Perkins v. Staskiewicz, 2010 WL 2510191, at *4 (M.D. Pa. June 17, 2010) (concluding that requiring plaintiff to submit to fingerprinting and photographing and attend court ...


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