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Merrick v. Kahley

United States District Court, Third Circuit

June 3, 2013

POLICE CHIEF WESLEY A. KAHLEY, et al., Defendants.


JOHN E. JONES, III, District Judge.


This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Susan E. Schwab (Doc. 13), filed on May 10, 2013, which recommends that Defendants' Motions to Dismiss (Doc. 4) be granted and that pro se Plaintiff Lynnette J. Merrick's ("Plaintiff' or "Merrick") complaint be dismissed. Objections to the R&R were due by May 28, 2013, and to date none have been filed. Accordingly, this matter is ripe for disposition. For the reasons set forth below, the Court will adopt the Magistrate Judge's R&R in its entirety and close this case.


When, as here, no objections are made to a magistrate judge's report and recommendation, the district court is not statutorily required to review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the Third Circuit, however, "the better practice is to afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). "[T]he court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating "the failure of a party to object to a magistrate's legal conclusions may result in the loss of the right to de novo review in the district court"); Tice v. Wilson, 425 F.Supp.2d 676, 680 (W.D. Pa. 2006); Cruz v. Chater, 990 F.Supp. 375-78 (M.D. Pa. 1998); Oldrati v. Apfel, 33 F.Supp.2d 397, 399 (E.D. Pa. 1998). The Court's examination of this case confirms the Magistrate Judge's determinations.


In July of 2011, Merrick was arrested and charged with various crimes related to thefts from residents at an assisted-living facility where she was employed part-time.[1] Plaintiff alleges that the arresting officers disclosed her arrest and the charges against her to her full-time employer, the Social Security Administration ("SSA"), and as a result of that disclosure she was suspended without pay for more than five months. On April 12, 2012, all charges against Plaintiff were dismissed by the York County Court of Common Pleas, however Plaintiff was assessed a penalty and costs pursuant to Pa. R. Crim. P. 586. Plaintiff contends that the Defendants violated the Privacy Act and her right to privacy by disclosing this information to the SSA. She also asserts claims for malicious prosecution, defamation, and interference with a business relationship. As noted above, within her thorough and well-reasoned 30-page R&R, Magistrate Judge Schwab recommends that Defendants' Motion to Dismiss be granted. Specifically, the Magistrate Judge correctly determines that Merrick has not stated a cognizable claim against the Privacy Act, 5 U.S.C. § 552A(b), because the Defendants are not federal agencies, thus the Privacy Act does not apply to them. Next, the Magistrate Judge correctly concludes that Plaintiff did not have a constitutionally protected privacy interest in the non-disclosure of the police report and related documents. Nunez v. Pachman, 578 F.3d 228, 233 (3d Cir. 2009)("criminal records, including police reports, indictments, guilty verdicts, and guilty pleas, are inherently public - not private - documents and are thus beyond the purview of the Due Process Clause."). Thus, as reasoned by Magistrate Judge Schwab, while Merrick might have hoped and had a subjective expectation that her arrest would not be disclosed to her employer, the type of documents that Merrick alleges the Defendants disclosed to the SSA are not the type of documents protected by the constitutional right to privacy.

Further, the Magistrate Judge reasons, and we agree, that Plaintiff's malicious prosecution claim is not cognizable because one of the essential elements is lacking - that the criminal proceeding ended in the plaintiff's favor. See McKenna v. Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009). Favorable termination of a criminal proceeding means that the suit must have been terminated in a way that indicates the innocense of the Plaintiff. See Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009). Here, while the charges were dismissed against Merrick, they were dismissed pursuant to Pa. R. Crim. P. 586, which predicates dismissal on the payment of a penalty and costs. Thus, the dismissal in the case was not indicative of Merrick's innocence, and thus she cannot establish the elements of a malicious prosecution claim.

Finally, the Magistrate Judge recommends that the Defendants' Motion be granted as to the supervisory Defendants as well as the City of York because Plaintiff has not set forth any facts to support a cognizable claim for supervisory or municipal liability. Further, as discussed above, Plaintiff did not have a privacy interest in the documents given to the SSA by the arresting officer Defendants, thus Plaintiff's failure to train claim with respect to these allegations necessarily fails.

As we have already mentioned, the Plaintiff has not filed objections to this R&R. Because we agree with the sound reasoning that led the Magistrate Judge to the conclusions in the R&R, we will adopt the R&R in its entirety. With a mind towards conserving judicial resources, we will not rehash the reasoning of the Magistrate Judge; rather, we will attach a copy of the R&R to this document, as it accurately reflects our consideration and resolution of the case sub judice. An appropriate Order shall issue.


I. Introduction.

In July of 2011, pro se plaintiff, Lynnette J. Merrick, was arrested and charged with various crimes relating to thefts from residents at an assisted-living facility where she worked part time. She alleges that the arresting officers disclosed her arrest and the charges against her to her full-time employer, the Social Security Administration, and as result of that disclosure she was suspended without pay for more than five months. She claims that by disclosing the details of her arrest, the defendants violated the Privacy Act and her right to privacy under the United States Constitution. She also claims that some of the defendants maliciously prosecuted her and that other of the defendants conducted an inadequate internal investigation of the officers' actions. She further claims that the defendants violated state law by defaming her and by interfering with her business relationship with her employer. The defendants have filed a motion to dismiss the complaint, and, for the reasons set forth below, we recommend that the motion to dismiss be granted.

II. Background and Procedural History.

Merrick, who is proceeding pro se, began this action in the Court of Common Pleas of York County, Pennsylvania. The defendants, Police Chief Wesley A. Kahley ("Kahley"), Police Captain Ron Camacho ("Camacho"), Police Officers Chad R. Howell ("Howell") and Jonathan Hatterer ("Hatterer"), and the City of York, removed the case to this court pursuant to 28 U.S.C. §§ 1441 on the basis that this court has federal question jurisdiction under 28 U.S.C. § 1331.

Merrick alleges the following facts in her complaint. Merrick works as a legal assistant for the Social Security Administration (SSA), Office of Disability Adjudication and Review. Merrick also worked part time at Kelly Manor, an assisted-living facility. On July 12, 2011, defendants Howell and Hatterer arrested her. These arresting officers provided a copy of the police report and other documents, including the criminal complaint against Merrick and supporting affidavits describing her arrest and the charges against her, to the SSA.

Merrick has attached to her complaint the documents that were provided to the SSA. See Doc. 1-1 at 9-23. Those documents include a six-page incident report, the initial factual narrative portion of which was written by defendant Howell. The report states that, on June 27, 2011, defendants Howell and Hatterer were dispatched to take a theft report concerning multiple residents of Kelly Manor. Defendant Howell spoke with the facility manager who advised that there had been two recent thefts concerning two of the residents. The report recites that Howell and Hatterer met with the two residents, Jean Frederic Bressler ("Bressler") and Millard E. Myers ("Myers").

According to the report, Bressler informed Howell and Hatterer that on June 22, 2001, he found that $100 was missing from his wallet, which he had left unattended on a dresser in his bedroom, to which no one other than staff at the facility had access. According to the report, Myers informed Howell and Hatterer that his Discover credit card had been taken from his wallet, that a pin number was established without his knowledge, and that two separate unauthorized cash advances totaling $1, 000 had been taken using the card. Myers further advised that he contacted Discover and cancelled the card. According to Myers, on June 25, 2011, he left his wallet on the corner of his bed when he went to dinner, and when he returned from dinner he could not find his wallet. He found the wallet the next day in pocket in a robe, but he states that he did not place the wallet there.

According to the report, account records show that the cash advances were taken from a particular Rutters' store on June 25, 2011 and June 27, 2011. The report further states that, on May 6, 2011, a theft of $10, 000 was reported to Officer Blymier, that the "person of interest" as to that incident went on elective surgery the next day, and that the schedule of the "person of interest" coincides with the additional thefts. The report states that according to the manager of the facility, this person was working at the times of the thefts, had been assigned to the floors involved, had access to all of the residents' rooms, and also works for the Social Security Administration. The report continues that there were no reported thefts during the time this person was on leave for the elective surgery and that it wasn't until she returned that the thefts began again.

In a supplemental narrative portion of the report, Officer Monte states that, on June 29, 2011, he met with Julianne Devanay, the facility manager of Kelly Manor, and Janette Kessel, who also apparently works at Kelly Manor, and that he was informed that Donna Geesey, who is Myers' caregiver, called the credit card company and obtained the phone number that had activated the pin on the card stolen from Myers. Kessel linked that phone number to records of employees of Kelly Manor and found that it belonged to Merrick.

The report contains a further supplement stating that, on July 7, 2011, defendant Howell, after contacting the District Attorney's Office, obtained an arrest warrant for Merrick. The report also states that video surveillance was obtained from Rutters. Another supplement to the report, also written by defendant Howell, details the arrest of Merrick on July 12, 2011. According to the report, defendants Howell and Hatterer set up surveillance at a particular spot to look for Merrick, who they thought would be in a specific vehicle. The officers spotted the vehicle, which was being driven by Joshua Upchurch ("Upchurch") and in which Merrick was a passenger. According to the report, the officers recognized Upchurch as the "other offender seen in the video surveillance at Rutter's." Doc. 1-1 at 14. Upchurch and Merrick were arrested, and Upchurch informed the officers that their two-year-old child was left unattended at home while he drove Merrick to the bus stop. The report states that after Upchurch was advised of his Miranda rights, he admitted using the Discover card stolen from Myers and he stated that he and Merrick had been struggling financially and the money was going toward bills. The report also states that, after Merrick was advised of her Miranda rights, she stated that she was guilty of taking Myers' credit card, that her house was close to being foreclosed on, that she was desperate for money, and that both $500 withdraws from the ATM machine were put toward her mortgage.

The documents provided to Merrick's employer, the SSA, also included arrest reports for Merrick and Upchurch, and a criminal complaint against Merrick, including an affidavit of probable cause which states:

On June 15, 2011, the Defendant called Discover Credit Card Company, provided her own name, and acquired a pin #using a phone number registered to her, so that cash could be withdrawn from victim[']s account. This was done without victim's knowledge and approval. Assisted living records show that the Defendant signed the log placing her in Victim's room during time of theft, when the Victim states he was "tucked in" for bed. The Defendant's vehicle is seen acquiring $58.96 of fuel on surveillance using the stolen credit card. This same card was also used to access $500 cash from an ATM machine on June 25, 2011 and June 26, 2011. A total of $1, 056.95 was illegitimately charged to victim's account prior to account being de-activated.

Doc. 1-1 at 19.

The documents provided to the SSA also included a document titled "Confidential Information Form Criminal Complaint, " which contains Merrick's name, social ...

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