United States District Court, M.D. Pennsylvania
JAMES M. MUNLEY, JUDGE United States District Court.
Before the court for disposition are two motions to dismiss Plaintiff Donna Turkos' complaint. Defendant Jason Kwiatkowski filed one motion to dismiss and Defendant Dupont Borough (hereinafter "Dupont" or "the Borough") filed the other. The motions are fully briefed and ripe for disposition.
Plaintiff Donna Turkos and her ex-husband David Turkos, a Dupont Borough Police Officer, have an acrimonious relationship history. (See Doc. 1, Compl., generally). Plaintiff has obtained several Protection From Abuse Orders (hereinafter "PFA") against her ex-husband. (Id. ¶ 11).
In 2008-2009, plaintiff attempted to enforce a PFA against David Turkos. (Id.) The police, however, allegedly refused to investigate because he worked on the police force. (Id. ¶¶ 13-47). In fact, the police charged plaintiff with false reports, disorderly conduct and harassment. (Id. ¶ 42). Plaintiff disputed these charges, and a Pennsylvania Magisterial District Judge dismissed all charged against the plaintiff at the preliminary hearing. (Id. ¶ 45). Plaintiff then instituted a civil rights action against Dupont, its police chief, police officer John Saranchuk and David Turkos. (Id. ¶ 48). The lawsuit eventually settled. (Id. ¶¶ 49-50).
Subsequent to the settlement of the initial lawsuit, plaintiff again sought to enforce a PFA against David Turkos. (Id. ¶ 58). Again, the police did not enforce the PFA and instead filed charges against the plaintiff. (Id. 59). Evidently, the PFA that plaintiff had tried to enforce had expired by the time she tried to invoke its protections although she had been provided evidence that it remained in effect. (Id. ¶ 63). Thus, because plaintiff had tried to enforce an expired PFA, Defendant Kwiatkowski, a police officer with the Dupont Borough Police Department, charged her with: 1) Tampering With Public Records or Information, 18 Pa. Cons. Stat. Ann. § 4911(a)(2); False Reports to Law Enforcement Authorities, 18 Pa. Cons. Stat. Ann. § 4906(a); and Unsworn Falsification to Authorities, 18 Pa. Cons. Stat. Ann. § 4904(a)(1). (Id. ¶ 60).
At the preliminary hearing, Magisterial District Judge Andrew Barilla dismissed all of the charges against plaintiff. (Id. ¶ 70). Plaintiff then instituted the instant case by filing a four-count complaint. The causes of action found in the complaint include: Count One - Deprivation of plaintiff’s First Amendment free speech rights brought pursuant to 42 U.S.C. § 1983; Count Two - Malicious prosecution, under Pennsylvania state law; Count Three - Unconstitutional policies and/or customs of Defendant Dupont brought pursuant to 42 U.S.C. § 1983; Count Four - Abuse of process, under Pennsylvania state law. (Id. ¶¶ 74-91). Plaintiff seeks compensatory damages, punitive damages, attorney’s fees and costs.
After service of the complaint, Defendant Saranchuk filed an answer. Defendants Kwiatkowski and Dupont filed motions to dismiss. The motions have been fully briefed, bringing the case to its present posture.
As this civil rights case is brought pursuant to section 1983, we have jurisdiction under 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). We have supplemental jurisdiction over the plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.
Standard of review
This case is before the court pursuant to defendants' motion to dismiss for failure to state a claim upon which relief can be granted filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. When a 12(b)(6) motion is filed, the sufficiency of the allegations in the complaint is tested. Granting the motion is appropriate if, accepting as true all the facts alleged in the complaint, the plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face, ” or put another way, “nudged [his or her] claims across the line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Third Circuit interprets Twombly to require the plaintiff to describe “enough facts to raise a reasonable expectation that discovery will reveal evidence of” each necessary element of the claims alleged in the complaint. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Moreover, the plaintiff must allege facts that “justify moving the case beyond the pleadings to the next stage of litigation.” Id. at 234-35.
The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). To decide a motion to dismiss, a court generally should 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. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
As noted above, both Defendant Kwiatkowski and Defendant Dupont filed motions to dismiss. We will discuss them separately beginning with Defendant Kwiatkowski.
I. Defendant Kwiatkowski’s motion to dismiss
Defendant Kwiatkowski moves to dismiss all the counts against him, Counts One, Two and Four. We will address them in turn.
A. Count One First Amendment Retaliation
Count One of the complaint alleges that Defendant Kwiatkowski filed charges against plaintiff without probable cause and did so in retaliation for plaintiff’s exercise of her First Amendment rights in complaining of David Turkos behavior. Defendant Kwiatkowski argues that probable cause supported the charges against plaintiff and the existence of probable cause is fatal to all of plaintiff’s claims. If probable cause did not exist, then qualified immunity nonetheless shields him from liability. Additionally, defendant argues that plaintiff failed to properly plead a conspiracy. We will address these issues separately.
1. Probable cause
To establish a first amendment retaliation claim, the plaintiff must demonstrate the following three elements: 1) she engaged in protected activity; 2) the defendants responded with retaliation; and 3) the protected activity caused the retaliation. Eichenlaub v. Twp. of Ind., 385 F.3d 274, 282 (3d Cir. 2004). Additionally, in this case because the alleged retaliation is the prosecution of criminal ...