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Kurt Toth v. Paul A. Rocco

November 23, 2011

KURT TOTH, PLAINTIFF,
v.
PAUL A. ROCCO, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Presently before the Court is Defendants‟, Paul A. Rocco‟s ("Rocco"), Brian Reiter‟s ("Reiter"), collectively, the "police officers", Mark Presley‟s ("Presley"), Jim Bartholomew‟s ("Bartholomew"), Michael Nastock‟s ("Nashtock"), collectively, the "supervisors", and South Pymatuning Township‟s ("Pymatuning" or "township") motion to dismiss the amended complaint (Doc. # 21) filed by the Plaintiff, Kurt Toth ("Toth"). For the reasons that follow, the motion will be granted in part and denied in part.

A. Factual and Procedural History

Plaintiff alleges the following facts in his complaint which the Court accepts as true for purposes of the motion to dismiss. Toth, a resident of Pymatuning, was concerned about the fiscal mismanagement of the township, which he deemed traceable to the self-dealing of the township‟s supervisors. Toth is an active member a group of taxpayers that attend the township public meetings to keep abreast of the supervisors‟ activity. In addition, Toth has taken it upon himself to scrutinize the work performed by the supervisors and other township employees.

As a result of his monitoring, Toth determined that the time cards of the township‟s road crew were falsified as to the type and duration of work performed. One member of the road crew, Mark Presley, would soon become a township supervisor. On November 17, 2009, Toth notified the then-sitting supervisors that he was aware that that the employees were falsifying their time cards. Sometime thereafter the use of time cards was eliminated. When a question arose at the March 9, 2010 township meeting about the discontinued time card policy, Presley, now a supervisor, replied: "If you want to know what we‟re doing, follow us." Am. Compl. ¶10. At a meeting the following month, a township police sergeant stated that Toth had a right to shadow township employees as long as he did not interfere with their work.

On April 28, 2010, Toth followed a road crew, keeping at least a distance of 300 feet as instructed by the police. Shortly thereafter, on April 30, 2010, Toth received notice that he was being charged with criminal stalking of township employees in violation of 18 Pa.C.S. § 2709. This criminal charge was based on the following Affidavit of Probable Cause by Police Officer Reiter:

[Toth] on this date April 28, 2010 at approx. 1:00pm did park a Green in color Ford truck with a black Cap over the bed area at 3341 Tamarack Drive a closed business, as Mark and Karen Presley both employees of South Pymatuningmatuning Township returned from there [sic.] lunch break. The Presley‟s observed [Toth] sitting in wait. The[P]resley‟s pulled into the Township building parking area to return to work. [Toth] remained at the closed business. Mark Presley then a short time later exited the Township building in the Township Public Works truck and pulled into the South Pymatuning Community Church parking area to remove equipment. Mark Presley then left the area to travel towards-then onto Saranat Drive (Sr0846). [Toth] then pulled his vehicle into the South Pymatuning Community Church Parking area located at 3400 Tamarack Drive semi-across from the Township Building and sat for several minutes. The defendant then left to travel North West on Tamarack Drive past the Township building as reported in a very slow manner. [Toth] has been verbally informed by your affiant and other Officers to Include Township Supervisor Mike Nashtock and our legal Solicitor Robert Tesone also Sgt Richard Christoff not to follow, harass, impede or put any Township worker in fear or emotional distress. Toth] has previous documented cases of harassment / stalking / Disorderly conduct incidents at South Pymatuning Township Police against the same employees this date as well as the following South Pymatuning Township employees/supervisor: Mike Nashtock. Employees: Burt Devries and LeaAnne Dumars. listed are the previous documented incidents.

09-30-2009 At the South Pymatuning Twp building and parking area, 11-13-09 Incident# 09-11-2035 at South Pymatuning Garage area, 01-21-2010 incident 10-01-0124 Upper Office area of the Township building. [Toth] during the incidents has verbally assaulted Employees of the Township and created a very hostile atmosphere placing the workers in fear of there [sic.] safety and creating great emotional distress. [Toth] continues to follow and stalk the Public works workers as they are outperforming there [sic.] daily work activities casuing [sic.] them to be in fear of [Toth‟s] possible actions.

Am. Compl. Ex. 1. Toth avers that supervisors Presley, Bartholomew, and Christoff specifically directed Reiter to charge him with the stalking offense.

After he received notice of the criminal charge, Toth alerted the local media to attend the township supervisors‟ meeting scheduled for May 11, 2010. At the meeting, Toth openly protested the charge leveled against him. The supervisors thereafter directed Reiter to charge Toth on multiple counts of disorderly conduct and harassment because of his conduct at the meeting and in alleged retaliation for his public denunciation of the stalking charge. The new disorderly conduct and harassment charges were filed on June 2, 1010 under the same docket number as the stalking charge filed on April 30, 2010.

A hearing on the criminal charges was scheduled for August 2, 2010. Prior to the hearing, the District Attorney for Mercer County informed Toth that he had the choice of pleading no contest to any one of charges or face prosecution for all of the violations. Toth avers that he felt threatened with incarceration and was coerced by Reiter and the District Attorney to accept the plea deal. Toth pled no contest to one count of disorderly conduct and the remaining charges related to both the April and May incidents were withdrawn. Toth insisted that the plea sheet read "no contest" rather than "guilty."

On September 18, 2010, Toth was charged with criminal harassment and disorderly conduct by defendant Officer Rocco based upon an allegation that he threw gravel at another individual. Rocco stated to Toth that his "superiors" directed him to file the charges and that an affidavit from the complaining victim was sufficient to support the charges. Am Comp. ¶¶ 43, 45. Toth told Rocco that the victim held a grudge against him and, in any event, he was out of town when the crime allegedly occurred. Toth also contends that the victim was a criminal and a known drug user and that the police department was aware of this reputation for unreliability when they charged him based solely on the victim‟s affidavit. At the request of the District Attorney, these harassment and disorderly conduct charges were withdrawn on October 20, 2010.

On April 1 2011, Toth filed a 42 U.S.C. § 1983 civil rights action alleging First Amendment retaliation and malicious prosecution against the various defendants, in their individual and official capacities. After the defendants filed a motion to dismiss, Toth filed an amended complaint that included claims against an additional defendant, South Pymatuning Township, and revised the caption to read that the individual defendants were sued only in their individual capacities.*fn1 In count one, Toth alleges that the supervisors participated, directed, had knowledge of, and otherwise acquiesced to the initiation of criminal proceedings against him without probable cause and for the purpose of retaliating against him for exercising his protected First Amendment right to free speech. He further alleged that the police officers acted in accordance with the supervisors‟ directives to arrest him without probable cause. Count two avers that these same state actors maliciously prosecuted him in an attempt to silence him from voicing his concerns about the fiscal mismanagement of the township by the self-interested supervisors. Count three of the amended complaint repeats the first amendment retaliation charges pled in count one and avers the township is liable for misconduct of its employees acting pursuant to the policy and practice of the Township Board of Supervisors. Finally, count four claims that the township is similarly liable for the wrongdoing of its employees resulting in the malicious prosecution of the plaintiff.*fn2

The defendants have filed a motion to dismiss the complaint arguing that: 1) Toth‟s claims based upon the charges filed against him on April 30, 2010 and June 2, 2010 are barred by the Heck v. Humphrey rule; 2) probable cause existed for Toth‟s arrest for the gravel throwing incident; 3) the passage of time between the protected activity and the gravel throwing arrest renders plaintiff‟s First Amendment claim implausible; 4) the individual defendants are entitled to qualified immunity; 5) Toth has not stated a sufficient claim against the township; and, 6) the claim for punitive damages is not cognizable.

B. Standard of Review

The United States Supreme Court opinions in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) and, more recently, in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), have shifted pleading standards from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

With the Supreme Court instruction in mind, the Court of Appeals for the Third Circuit has outlined a two-part analysis that courts should utilize when deciding a motion to dismiss for failure to state a claim. First, the factual and legal elements of a claim should be separated. In other words, while courts must accept all of the complaint's well-pleaded facts as true, they may disregard any legal conclusions. Second, courts then decide whether the facts alleged in the complaint are sufficient to demonstrate that the plaintiff has a "plausible claim for relief." Iqbal, 129 S. Ct. at 1950. That is, a complaint must do more than allege the entitlement to relief; its facts must show such an entitlement. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009).

C. Discussion

1. Application of Heck v. Humphrey

Toth asserts that the filing of criminal charges against him following his vocalized complaints against the management of the township violated his First Amendment rights. "[I]nstitution of criminal action to penalize the exercise of one's First Amendment rights is a deprivation cognizable under § 1983." Losch v. Borough of Parkesburg, PA, 736 F.2d 903, 907--08 (3d Cir. 1984). To establish a claim for First Amendment retaliation, a plaintiff must demonstrate that: (1) he engaged in protected activity; (2) the government responded with retaliation; and (3) the protected activity was the cause of the retaliation. Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003). The Supreme Court has held that the absence of probable cause is essential to proving the causal link between the alleged retaliatory arrest and a plaintiff's protected speech. Hartman v. Moore, 547 ...


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