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Reed C. Dempsey and Shelley Dempsey v. Bucknell University

May 3, 2012

REED C. DEMPSEY AND SHELLEY DEMPSEY,
PLAINTIFFS
v.
BUCKNELL UNIVERSITY, ET AL., DEFENDANTS



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

MEMORANDUM

Before the Court are two motions to dismiss. On November 14, 2011, Defendants Bucknell University, John C. Bravman, Lewis A. Marrara, Daniel C. Remley, Amy A. Badal, Linda Locher, Kari M. Conrad, Michael Smyer, Chief Jason Friedburg, Officer Julie Holtzapple, Officer Darrell Fisher, Officer Robert Ulmer, Officer James Middleton, Officer Red Rishel, Detective Jeffrey Ettinger, and Captain Douglas Lauver (the "Bucknell Defendants"), moved to dismiss the claims against them in Plaintiffs' complaint. (Doc. No. 11.) On the same day, Defendant Anthony J. Voci, Jr., moved to dismiss the claims against him in Plaintiffs' complaint. (Doc. No. 12.) For the reasons that follow, the Court will grant in part both motions and deny in part both motions.

I. BACKGROUND

On September 6, 2011, Plaintiffs, Reed C. Dempsey and his mother, Shelley Dempsey, initiated this action by filing an 18-count complaint against 17 defendants. The 585-paragraph complaint is based on Defendants' actions in response to an incident involving Plaintiff Reed and a female Bucknell student, referred to as "K.S." (Doc. No. 1.) According to the complaint,*fn1 Plaintiff Reed and K.S. engaged in "play-fighting" in Smith Hall (the dormitory where both students lived) in the early hours of September 5, 2010. (Id. ¶¶ 23-28.) Initially, Plaintiff Reed and K.S. were accompanied by other students; however, the two eventually ended up "play-wrestling" in Plaintiff Reed's dorm room, alone. (Id. ¶¶ 29-35.)

While Plaintiff Reed and K.S. were still play-fighting, K.S. allegedly jumped on top of Plaintiff Reed, pinned his arms to the side of his head, and began to harass him about having kissed her roommate earlier that evening. (Id. ¶¶ 35-37.) After the two left Plaintiff Reed's room, K.S. allegedly tried to continue wrestling with Plaintiff Reed, who eventually resorted to restraining her. (Id. ¶¶ 37-48.) After Plaintiff Reed struggled to restrain K.S., the Resident Advisor ("RA") for Smith Hall came to the hallway. (Id. ¶ 49.) The RA noticed red marks on K.S.'s eye, shoulder, and hand; and when he asked the two what happened, K.S. slapped Plaintiff Reed in the face. (Id. ¶¶ 50-51.) After the RA restrained K.S., he asked Plaintiff Reed to return to his room, and then escorted K.S. to her room. (Id. ¶¶ 52-54.) A few minutes later, when Plaintiff Reed was using the water fountain, K.S. came out of her room to smack him on his back, and verbally harassed him before the RA asked her to stop. (Id. ¶¶ 55-58.) K.S. then gave her account of the incident to the RA, stating that Plaintiff Reed had tackled her, that she kicked Plaintiff Reed in the groin, and that she did not want the RA to file a report because neither of the students intended for things to get out of hand. (Id. ¶¶ 59-63.) Plaintiff Reed then gave his side of the story to the RA. (Id. ¶¶ 64-65.)

The next morning, at her field hockey game, K.S.'s coach noticed marks on her face, and asked her about them. (Id. ¶¶ 70-71.) After the game, K.S. told her coach and her father that she was assaulted by Plaintiff Reed. (Id. ¶¶ 72-77.) Specifically, she told her father that Plaintiff Reed had done "horrible things" to her. (Id. ¶ 78.) K.S.'s father documented her injuries with his camera and subsequently contacted the RA about the incident. (Id. ¶¶ 79-81.) After K.S. told the RA that he could discuss the incident with her father, or anyone within the Bucknell administration, the RA informed K.S. and her father that he had filed a formal report with the dean of students. (Id. ¶ 82.)

On the bus ride home from her field hockey game, K.S. contacted Defendant Badal, the associate dean of students, and told her that she had been sexually assaulted. (Id. ¶ 84.) K.S.'s father then contacted Bucknell's Department of Public Safety, and around 6 p.m. on September 5, 2010, K.S. met with Defendants Badal, Holtzapple, Fisher, and Ulmer at the Department of Public Safety. (Id. ¶¶ 86-87.) At the meeting, K.S. recounted to the university employees that in the early hours of that morning, Plaintiff Reed picked her up, put her on his futon, pinned her arms, pinched her, punched her in "inappropriate places," tackled her to the ground, dragged her, and struggled with her on the ground. (Id. ¶¶ 88-101.) K.S. further stated that "while [Plaintiff Reed] was on top of [her], he was getting off to it." (Id. ¶ 102.) In addition to her interview, K.S. provided the Department of Public Safety with a written statement, accusing Plaintiff Reed of pinching, slapping, scratching, and punching her in her chest and groin, despite her demands that he stop. (Id. ¶¶ 138-142.) After discussing the incident at the Department of Public Safety, Defendants Holtzapple, Fisher, and Badal accompanied K.S. to Evangelical Hospital, where tests indicated that she was in good condition. (Id. ¶¶ 111-116.)

Later that evening, Defendant Ulmer contacted Plaintiff Reed, to inform him that he was a suspect in a criminal investigation, and that he was to have no contact with K.S. (Id. ¶¶ 117-119.) Shortly thereafter, Defendant Ulmer contacted Plaintiff Reed again and asked him to come to the Department of Public Safety, where he was read his Miranda rights prior to recounting his version of the incident. (Id. ¶¶ 120-123.) The Department of Public Safety also interviewed a number of students, who corroborated portions of Plaintiff Reed's version of the story, and contradicted some aspects of K.S.'s account. (Id. ¶¶ 125-128.)

On September 6, 2010, Defendants Locher and Badal told Plaintiff Reed that he would have to move to a different dormitory, which he promptly did. (Id. ¶¶ 129-134.) Later that evening, Defendants Locher and Marrara informed Plaintiff Reed that he was being temporarily suspended. (Id. ¶¶ 147-148.) The next day, Defendants Ulmer, Middleton, and Holtzapple filed criminal charges against Plaintiff Reed for simple assault, harassment, and disorderly conduct. (Id. ¶¶ 144-145, 173.) Plaintiff Reed was arraigned that same day at the Union County Courthouse. (Id. ¶ 174.)

On September 9, 2010, Plaintiff Reed's suspension was rescinded, and he returned to campus. (Id. ¶¶ 176-178.) That evening, accompanied by Defendant Voci, K.S. met with Defendant Ettinger at the Department of Public Safety for a second interview regarding the incident. (Id. ¶¶ 196-197.) At the interview, K.S. allegedly exaggerated her previous statements, providing statements that were contradicted by several witnesses. (Id. ¶¶ 198-243.) Shortly thereafter, Defendant Holtzapple and an unknown male officer confronted Plaintiff Reed in his new dorm room, and told him to gather his belongings, and that he was trespassing. (Id. ¶¶ 244- 247.) The officers took Plaintiff Reed to Hufnagle Park in the back of a Department of Public Safety vehicle, where they left him by himself. (Id. ¶¶ 248-255.) Plaintiffs allege that the news of Plaintiff Reed's removal from campus caused Plaintiff Shelley Dempsey to become extremely emotional. (Id. ¶ 249.)

On September 10, 2010, Defendant Holzapple filed a second criminal complaint against Plaintiff Reed, charging him with false imprisonment, simple assault, indecent assault, disorderly conduct, and harassment. (Id. ¶ 259.) Plaintiff Reed was arrested and arraigned that day. (Id. ¶ 260.) Following Plaintiff Reed's arrest, K.S. filed student conduct charges against Plaintiff Reed and he filed student conduct charges against her. (Id. ¶¶ 265-266.) Thereafter, Plaintiffs allege that Defendant Voci insisted that Plaintiff Reed not be allowed on Bucknell's campus, and told various media outlets that Plaintiff Reed had forced K.S. into his room, got on top of her, and hit her in the breast and groin. (Id. ¶¶ 275-298.) Plaintiffs allege that Bucknell representatives also made statements to the media. (Id. ¶ 299.)

On October 2, 2010, Defendant Voci filed a motion for preliminary injunction with this Court, seeking to enjoin Bucknell from holding a sexual misconduct hearing regarding the incident. (Id. ¶ 300.) On October 5, 2010, the Court denied the motion, and the hearing began that evening. (Id. ¶¶ 301-302.) The hearing lasted three days, during which several students, Plaintiff Reed, Defendants Holtzapple, and Ulmer testified. (Id. ¶¶ 303-393.) K.S. responded to only one question, before withdrawing her answer and reserving her right to remain silent. (Id. ¶¶ 374-375.) At the conclusion of the hearing, Plaintiff Reed was found not responsible for sexual misconduct, physical assault, harassment, and freedom of movement, but was found responsible for disorderly conduct. (Id. ¶¶ 398-399.) K.S. was also found to be responsible for disorderly conduct. (Id. ¶ 401.)

On October 14, 2010, Plaintiff Reed appealed the results of the sexual misconduct hearing. (Id. ¶ 409.) Plaintiffs allege that an audio recording of the hearing was not produced for the appeal, despite Plaintiff Reed's request. (Id. ¶ 411.) Furthermore, the appeal hearing was not recorded, allegedly contrary to various Bucknell policies. (Id. ¶ 412.) On October 27, 2010, Plaintiff Reed filed a second appeal, which Defendant Symer denied on December 14, 2010. (Id. ¶¶ 417-430.)

II. STANDARD OF REVIEW

A motion to dismiss filed pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In reviewing a motion to dismiss, a court may "consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum, 361 F.3d at 221 n.3. The motion will only be properly granted when, taking all factual allegations and inferences drawn therefrom as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Ne. 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). While the 12(b)(6) 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.'" Phillips, 515 F.3d at 231-32 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Put otherwise, a civil complaint must "set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009)).

III. DISCUSSION

In their complaint, Plaintiffs asserted the following 18 causes of action: (1) a false arrest claim by Plaintiff Reed against Defendants Bucknell, Holtzapple, Ulmer, Middleton, Fisher, Ettinger, and "Officer Doe" (Count I); (2) a malicious prosecution claim against Defendants Bucknell, Holtzapple, Ulmer, Middleton, Fisher, and Ettinger (Count II); (3) a supervisory liability claim by Plaintiff Reed against Defendants Bucknell, Bravman, Locher, Badal, Marrara, Lauver, and Friedberg (Count III); (4) a false imprisonment claim by Plaintiff Reed against Defendants Bucknell, Bravman, Locher, Badal, Marrara, Friedberg, Holtzapple, Doe, Ulmer, Middleton, Fisher, and Ettinger (Count IV); (5) a civil conspiracy to commit false arrest claim by Plaintiff Reed against Defendants Bucknell, Bravman, Locher, Badal, Marrara, Friedberg, Holtzapple, Doe, Ulmer, Middleton, Fisher, Ettinger, and Voci (Count V); (6) a civil conspiracy to commit malicious prosecution claim by Plaintiff Reed against Defendants Bucknell, Bravman, Locher, Badal, Marrara, Friedberg, Holtzapple, Ulmer, Middleton, Fisher, Ettinger, and Voci (Count VI); (7) a defamation claim by Plaintiff Reed against Defendants Bucknell, Ulmer, Middleton, Holtzapple, Fisher, Locher, Marrara, and Voci (Count VII); (8) a fraud claim by Plaintiff Reed against Defendants Bucknell, Conrad, Ulmer, and Holtzapple (Count VIII); (9) a civil conspiracy to commit fraud claim by Plaintiff Reed against Defendants Bucknell and Voci (Count IX); (10) a breach of contract claim by Plaintiff Reed against Defendant Bucknell (Count X); (11) a claim under Title IX of the Education Amendments of 1972 ("Title IX") by Plaintiff Reed against Defendant Bucknell (Count XI); (12) a negligence claim by Plaintiff Reed against Defendant Bucknell (Count XII); (13) a negligent hiring, supervision, and retention claim by Plaintiff Reed against Defendant Bucknell (Count XIII); (14) a tortious interference with contract claim by Plaintiff Reed against Defendant Voci (Count XIV); (15) a civil conspiracy to commit tortious interference with contract claim by Plaintiff Reed against Defendants Bucknell and Voci (Count XV); (16) an intentional infliction of emotional distress ("IIED") claim by Plaintiff Reed against Defendants Bucknell and Voci (Count XVI); (17) a civil conspiracy to commit IIED by Plaintiff Reed against Defendants Bucknell and Voci (Count XVII); and (18) an IIED claim by Plaintiff Shelley against Defendants Bucknell and Voci (Count XVIII).

In their brief in opposition to the Bucknell Defendants' motion to dismiss, Plaintiffs voluntarily dismissed Defendants Remley and Rishel, who are listed in the caption of their complaint, but not in any counts. (Doc. No. 27 at 16 n.8.) Defendants also moved to dismiss Defendant Smyer from the complaint for the same reason. (Doc. No. 15 at 19.) The Court will dismiss Defendants Smyer, Remley, and Rishel because Plaintiffs did not name them in any of their causes of action. The Court will address each of the claims in the complaint as they pertain to the remaining Defendants in turn.

A. False Arrest (Count I)

First, Plaintiff Reed asserts a false arrest claim, pursuant to 42 U.S.C. § 1983, against Defendants Bucknell, Holtzapple, Doe, Ulmer, Middleton, Fisher, and Ettinger. (Doc. No. 1 ¶¶ 432-442.) Plaintiffs allege that the officers at the Department of Public Safety did not have probable cause to arrest Plaintiff Reed, because they knew that the information upon which they based the arrest was false, ignoring contradictory, exculpatory evidence. (Id. ¶¶ 436-437.) The Bucknell Defendants move to dismiss this claim, arguing: (1) that the Bucknell Defendants were not acting as state actors; (2) in the alternative, that the Bucknell Defendants are entitled to qualified immunity; and (3) alternatively, that Plaintiffs have failed to properly allege each Defendant's involvement. (Doc. No. 15 at 11-22.)

To state a cause of action under Section 1983, a plaintiff must establish that a person acting under color of state law violated a right secured by the Constitution or the laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). One such right arises under the Fourth Amendment, which requires a police officer to have probable cause before arresting a citizen. Rogers v. Powell, 120 F.3d 446, 452 (3d Cir. 1997). "The proper inquiry in a section 1983 claim based on false arrest or misuse of the criminal process is . . . whether the arresting officers had probable cause to believe the person arrested had committed the offense." Dowling v. Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988). To determine whether an officer had probable cause to arrest, courts must determine whether the "facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested." Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995). Even if an officer did not have probable cause, government officials are entitled to qualified immunity when they perform discretionary functions. Wilson v. Layne, 526 U.S. 603, 609 (1999). "In the context of a claim of false arrest and imprisonment by a police officer, the officer is entitled to qualified immunity when a reasonable officer could have believed that probable cause existed to arrest the plaintiff."

Ciardiello v. Sexton, 390 F. App'x 193, 199 (3d Cir. 2010) (citations and quotation marks omitted).

1. State Action

First, the Bucknell Defendants argue that Plaintiffs' Section 1983 false arrest claim should be dismissed, because Bucknell is a private institution, and the Bucknell Defendants were not state actors. (Doc. No. 15 at 19-20.) In response, Plaintiffs argue that Bucknell Public Safety officers are appointed and sworn as officers under 22 Pa. Cons. Stat. § 501, which allows non-profit corporations to appoint their employees to exercise police powers "in and upon, and in the immediate and adjacent vicinity of" their property. (Doc. No. 27 at 18-19.)

When a defendant is not a state actor, it may still satisfy the color of state law requirement in some circumstances. The inquiry is whether the defendant's conduct is "fairly attributable to the state." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A defendant's conduct satisfies the color of state law if the conduct has been "traditionally the exclusive prerogative of the state." Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (citations and quotation marks omitted). In other words, a defendant's conduct will be deemed a state act if the defendant exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326 (1941). In the context of campus police, the Third Circuit has held that "the delegation of police powers, a government function, to the campus police buttresses the conclusion that the campus police act under color of state authority." Henderson v. Fisher, 631 F.2d 1115, 1118 (3d Cir. 1980).

Here, Plaintiffs allege that Bucknell's officers are appointed and sworn police officers pursuant to 22 Pa. Cons. Stat. § 501. (Doc. No. 1 ¶ 434.) The complaint further alleges that Defendants Ulmer, Middleton, Ettinger, and Fisher arrested Plaintiff Reed without probable cause on September 7, 2010, and again on September 10, 2010. (Id. ¶ 439.) Thus, Plaintiffs have alleged that the arresting officers exercised their police power in arresting Plaintiff Reed, and that the arresting officers derived their power to arrest from the Pennsylvania statute that grants them the power to effectuate arrests. This delegation of police powers "buttresses the conclusion" that the Public Safety officers acted under color of state law. See Henderson, 631 F.2d at 1118.*fn2 Accordingly, Plaintiffs have alleged sufficient facts to support an inference that the officers acted under color of state law by arresting Plaintiff Reed.

2. Qualified Immunity and Probable Cause

Next, the Bucknell Defendants argue, in the alternative, that the Bucknell Defendants are entitled to qualified immunity. (Doc. No. 15 at 25.) In response, Plaintiffs argue that a reasonable officer would have known "that K.S. lacked credibility, that probable cause did not exist and not to omit exculpatory evidence from the affidavit of probable cause." (Doc. No. 27 at 41-42.)

"In the context of a claim of false arrest and imprisonment by a police officer, the officer is entitled to qualified immunity when a reasonable officer could have believed that probable cause existed to arrest the plaintiff." Ciardiello, 390 F. App'x at 199. To state a claim for false arrest based on a warrant, a plaintiff must establish that the defendant "knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant," and that "such statements or omissions are material, or necessary, to the finding of probable cause." Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000) (internal quotation marks and citations omitted). An omission is made with reckless disregard if "an officer withholds a fact in his ken that any reasonable person would have known that this was the kind of thing the judge would wish to know." Id. at 788 (internal quotation marks and citations omitted). Similarly, an assertion is made with reckless disregard for the truth if the "affiant . . . entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported." Id. (internal quotation marks and citations omitted).

In their complaint, Plaintiffs allege that Plaintiff Reed was arrested after officers obtained an arrest warrant, which was based on an affidavit of probable cause. (Doc. No. 1 ¶¶ 145, 173, 258-260, 439-440.) Plaintiffs allege that the officers obtained the arrest warrant without probable cause, willfully and intentionally omitting material exculpatory information, and arrested Plaintiff Reed knowing that the information upon which they based the arrest was false. (Id. ¶¶ 436-440.) Plaintiffs allege that the officers knew about exculpatory and contradictory evidence, but ignored it. (Id. ¶ 437.) Plaintiffs further allege that the officers interviewed a number of students, whose statements contradicted those of K.S., and that the officers ignored those statements when deciding to file criminal charges. (Id. ¶¶ 125, 127, 144.)

While the Bucknell Defendants have presented an argument that the officers had probable cause based on certain facts alleged in the complaint, the Court must accept all of the allegations in the complaint as true. Because Plaintiffs have alleged that the Public Safety officers arrested Plaintiff Reed knowing that the information upon which they based the arrest was false, Plaintiffs have alleged sufficient facts to support a finding that they lacked probable cause. Furthermore, where an "officer submits an affidavit containing statements he knows to be false," he is not entitled to qualified immunity. Lippay v. Christos, 996 F.2d 1490, 1504 (3d Cir. 1993) (citing Malley v. Briggs, 475 U.S. 335, 345 (1986); Olson v. Tyler, 771 F.2d 277, 281 (7th Cir. 1985)). Accordingly, at this early stage, the Court cannot find that the doctrine of qualified immunity would shield the officers from liability for false arrest.

3. Defendant Involvement

The Bucknell Defendants next argue that, even if the Bucknell Defendants were state actors and qualified immunity does not apply, Plaintiffs have still failed to state a claim, because Plaintiffs have failed to allege sufficient facts to support an inference that the Bucknell Defendants were involved in Plaintiff Reed's arrest. (Doc. No. 15 at 26.) While discovery may reveal more detail about how each Defendant was involved, the Court is satisfied that Plaintiffs have sufficiently alleged the Public Safety officers' involvement in obtaining Plaintiff Reed's arrest warrant and in arresting Plaintiff Reed. Plaintiffs have alleged that Defendants Holtzapple, Ulmer, and Middleton participated in drafting criminal charges and an affidavit of probable cause, and that they willfully and intentionally omitted material, exculpatory evidence.

(Doc. No, 1 ¶¶ 144-145, 440.) Further, Plaintiffs have alleged that Defendants Doe and Holtzapple actually removed Plaintiff Reed from campus in a police car. (Id. ¶¶ 244-245.) Plaintiffs also allege that Defendants Ettinger, Holtzapple, Ulmer, Middleton, and Fisher arrested Plaintiff Reed twice. (Id. ¶ 439.) The Court must accept as true the allegations of the complaint, and Plaintiffs' allegations about Plaintiff Reed's arrest are specific enough to "raise a right to relief above the speculative level." See Twombly, 550 U.S. at 555. However, Plaintiffs have not alleged any personal involvement by Defendant Bucknell as to their false arrest claim. "A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 2005). Thus, the Court will dismiss without prejudice Plaintiffs' false arrest claim against Defendant Bucknell, but will deny the Bucknell Defendant's motion to dismiss this claim against Defendants Ettinger, Holtzapple, Ulmer, Middleton, Fisher, and Doe.

B. Malicious Prosecution (Count II)

In Count II of the complaint, Plaintiff Reed asserts a malicious prosecution claim against Defendants Bucknell, Holtzapple, Ulmer, Middleton, Fisher, and Ettinger. (Doc. No. 1 ¶¶ 443-449.) The Bucknell Defendants moved to dismiss this claim, arguing that Plaintiffs have not alleged sufficient facts to support a claim for malicious prosecution. (Doc. No. 15 at 30-32.)

To state a claim for malicious prosecution, a plaintiff must establish that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). The Bucknell Defendants argue that Plaintiffs have failed to allege facts sufficient to establish the third, fourth, and fifth elements. The Court has, however, already determined that Plaintiffs have alleged sufficient facts to support an inference that the arresting officers lacked probable cause. See Section III.A.2. Thus, the Court will focus on the fourth and fifth elements of a malicious prosecution claim.

Regarding the fourth element, the Bucknell Defendants argue that Plaintiffs have failed to plead any facts demonstrating that the Bucknell Defendants acted maliciously, or with any motive other than bringing Plaintiff Reed to justice. (Doc. No. 15 at 23.) However, Plaintiffs have alleged sufficient facts that, if proven, support an inference that the officers lacked probable cause, and "[m]alice may be inferred from the absence of probable cause." Lippay, 996 F.2d at 1502. Malice can mean ill will, or a "lack of belief in the guilt of the accused." Id. Here, Plaintiffs have alleged that the Public Safety officers arrested Plaintiff Reed, knowing that the information upon which they based the arrest was false. (Doc. No. 1 ¶ 436.) Further, Plaintiffs alleged that the officers submitted an affidavit of probable cause with false information, provided knowingly false information to the Union County District Attorney's office, and maliciously assisted in the prosecution of Plaintiff Reed, knowing that they did not have probable cause. (Id. ¶¶ 444-447.) Thus, Plaintiffs have alleged sufficient facts to support an inference that the officers arrested Plaintiff Reed with a "lack of belief in the guilt of the accused." See Lippay, 996 F.2d at 1502.

Regarding the fifth element of a malicious prosecution claim, the Bucknell Defendants argue that Plaintiffs have not sufficiently pleaded that Plaintiff Reed was seized as a consequence of the criminal charges. (Doc. No. 15 at 31.) "When the state places constitutionally significant restrictions on a person's freedom of movement for the purpose of obtaining his presence at a judicial proceeding, that person has been seized within the meaning of the Fourth Amendment." Schneyder v. Smith, 653 F.3d 313, 321-22 (3d Cir. 2011). Here, Plaintiffs have alleged that Plaintiff Reed was arrested after Defendant Holtzapple filed a second criminal complaint against Plaintiff Reed on September 10, 2010. (Doc. No. 1 ¶¶ 258-260.) Because Plaintiffs have alleged that Plaintiff Reed was arrested as a result of the criminal charges filed by the officers, Plaintiffs have alleged sufficient facts to support an inference that Plaintiff Reed suffered a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.

The Bucknell Defendants also argue that Plaintiffs have failed to sufficiently plead the involvement of each defendant. However, for the reasons explained in Section III.A.3 above, Plaintiffs have sufficiently alleged that Defendants Holtzapple, Ulmer, Middleton, Fisher, and Ettinger participated in initiating criminal charges against Plaintiff Reed. Specifically, Plaintiffs allege that all of these officers knowingly submitted an affidavit containing false information to the Magisterial District Judge, and to the Union County District Attorney's office. (Doc. No. 1 ¶¶ 444-445.) Plaintiffs have not, however, alleged any personal involvement by Defendant Bucknell as to their malicious prosecution claim. Thus, the Court will dismiss without prejudice Plaintiffs' malicious prosecution claim against Defendant Bucknell, but will deny the Bucknell Defendants' motion to dismiss this claim against Defendants Ettinger, Holtzapple, Ulmer, Middleton, and Fisher.

C. Supervisory Liability (Count III)

Next, in Count III of Plaintiffs' complaint, Plaintiff Reed asserts a supervisory liability claim against Defendants Bucknell, Bravman, Locher, Badal, Marrara, Lauver, and Friedberg. (Doc. No. 1 ¶¶ 450-456.) Specifically, Plaintiffs allege that: (1) Defendant Bucknell has been deliberately indifferent to constitutional rights by failing to train its officers; (2) Defendants Friedberg, Locher, Badal, Marrara, and Bravman are all final policymakers for law enforcement, and that they ratified the false arrest and malicious prosecution of Plaintiff Reed; and (3) Defendant Lauver had authority to stop the arrest and prosecution of Plaintiff Reed, but did not despite his knowledge that probable cause did not exist. The Bucknell Defendants argue that Plaintiffs have failed to sufficiently allege that each of the named Defendants were "involved personally" with the alleged false imprisonment and malicious prosecution. (Doc. No. 15 at 34.)

1. Failure to Train

First, Plaintiffs allege that Bucknell has been deliberately indifferent to the constitutional rights of individuals, including Plaintiff Reed, by failing to train its officers on how to investigate potential crimes, what constitutes malicious prosecution, and what constitutes probable cause for an arrest. (Doc. No. 1 ¶ 452.) To state a claim for failure to train, a plaintiff must establish that the supervising defendant's "failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). The standard of deliberate indifference is, however, a "stringent standard of fault," which requires proof that the supervisor "disregarded a known or obvious consequence of his action." Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997). "A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." Connick v. Thompson, 131 S.Ct. 1350, 1359 (citing Bryan Cnty., 520 U.S. at 409). Additionally, a "continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees" may constitute deliberate indifference. Id. (quoting Bryan Cnty., 520 U.S. at 409).

Here, Plaintiffs allege that Bucknell has been deliberately indifferent, but have alleged no facts to support that statement. Plaintiffs' assertion that Bucknell has been deliberately indifferent is little more than a "naked assertion," or "a formulaic recitation of the elements of a cause of action." Iqbal, 129 S.Ct. at 1949. Thus, Plaintiffs have failed ...


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