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Zerby v. Waltz

United States District Court, M.D. Pennsylvania

January 27, 2017

PAUL ZERBY, Plaintiff
DOLLY I. WALTZ, et al., Defendants


          Yvette Kane, District Judge

         Before the Court are four motions to dismiss Plaintiff Paul Zerby's amended complaint filed by Defendants East Pennsboro Township Police Department (Doc. No. 6), Kimberly Henning (Doc. No. 7), Dolly I. Waltz (Doc. No. 10), and Cumberland County, Cumberland County District Attorney's Office, District Attorney David J. Freed (hereafter “District Attorney Freed”), and Detective Rodney Smith (collectively referred to as the “Cumberland County Defendants”) (Doc. No. 8). For the reasons provided herein, the Court will grant Defendants' motions to dismiss.

         I. BACKGROUND

         This action was initiated by Plaintiff Paul Zerby on October 21, 2015 through the filing of a praecipe to issue writ of summons in the Court of Common Pleas of Cumberland County. On February 11, 2016, following the filing of an original complaint in this matter, Plaintiff filed a five-count amended complaint, asserting a number of Pennsylvania common law claims in addition to a federal cause of action under 42 U.S.C. § 1983. On March 3, 2016, this action was removed to the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1331. (Doc. No. 1.)

         The allegations forming the basis of Plaintiff's amended complaint are as follows. This matter concerns subsequently dropped criminal charges instituted against Plaintiff in connection with his role as power-of-attorney for his elderly mother, Betty Zerby. (Id. ¶¶ 8-10.) Plaintiff alleges that in 2009, Betty Zerbe began residing with Plaintiff at his home in Lebanon County following the death of her husband. (Id.) To accommodate his aging mother, Plaintiff asserts that he made certain renovations to his home in Lebanon County. (Id. ¶ 11.) In 2011, Plaintiff's sister and niece, Dolly I. Waltz and Kimberly Henning (“Defendants Waltz and Henning”), contacted authorities to report that Plaintiff had financially defrauded Betty Zerbe. (Id. ¶ 12.) Plaintiff accuses Defendants Waltz and Henning of falsely reporting Plaintiff as part of a “conspiracy to exact revenge for being disinherited from Betty Zerby's will.” (Id. ¶ 34.) Specifically, Plaintiff explains that Defendants Waltz and Henning were “essentially excluded from Betty Zerby's will, being left $1, 000 and $1.00 respectively from her estate.” (Id. ¶ 13.) Plaintiff alleges that Detective Rodney Smith, employed by the Cumberland County District Attorney's Office, was enlisted to investigate the allegations of Defendants Waltz and Henning. (Id. ¶ 15.) Plaintiff suggests that the investigation launched by Detective Rodney Smith into Plaintiff's alleged misconduct, which consisted of interviews with “the victim, the State Office of Aging (who were investigating this matter in their own right), and other purported victims, ” was insufficient. (Id. ¶¶ 15-16.)

         In November of 2013, “[b]ased on the statements of Defendants Waltz and Henning, Plaintiff was arrested and charged with “Felony 1 Knowledge that Property is Proceeds of Illegal Act (18 Pa. C.S. § 5111), Felony 2 Theft by Deception (18 Pa. C.S. § 3922), and Felony 3 Theft by Failure to Make Required Disposition of Funds (18 Pa. C.S. § 3927).” (Id. ¶ 23.) In Plaintiff's view, his arrest was made “without any supporting evidence of probable cause.” (Id.)

         Plaintiff maintains that the underlying criminal proceedings continued from November of 2013 to July of 2015, which required him to expend “significant sums” during that time period to defend against those criminal charges. (Id. ¶ 24.)

         According to Plaintiff, in July of 2015, the Cumberland County District Attorney's Office “requested the case against [him] be discontinued and nolle prossed due to significant witness availability issues, the inconsistencies offered by the complainants, and the lack of cooperation from the Centre County Office of Aging.” (Id. ¶ 30.) Plaintiff maintains that “[a]lthough the information that led to the Commonwealth's decision to seek a nolle pros had remained unchanged since the onset of the investigation, the Defendants chose to continue to pursue this matter for two years” (Id. ¶31), which “complete[ly] interrupt[ed] . . . his life, significant[ly] damage[d] . . . his reputation, and [caused] financial damages in attorney's fees.” (Id. ¶ 32.) Plaintiff avers that the Cumberland County Defendants and the East Pennsboro Township Police Department “continued their prosecution to save fac[e] and in the hope that Plaintiff would take a plea deal.” (Id. ¶ 33.)

         In essence, Plaintiff claims that the Cumberland County Defendants and the East Pennsboro Township Police Department improperly and maliciously pursued charges against him based on Defendants Waltz and Henning's “lies and slanderous besmirching” of him. (Id. ¶ 35.) He further contends that these Defendants wrongfully allowed the criminal case to continue long after it should have been withdrawn. (Id. ¶ 36.) Plaintiff seeks to recover compensatory damages, punitive damages, costs and attorney's fees against these Defendants.

         Four motions to dismiss the amended complaint have been filed in the above-captioned action following its removal to the Middle District of Pennsylvania from the Court of Common Pleas of Cumberland County. Those motions have been fully briefed and are now ripe for disposition.


         Federal notice and pleading rules require the complaint to provide the defendant notice of the claim and the grounds upon which it rests. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a plausible right to relief. Fed.R.Civ.P. 8(a). Although Federal Rule of Civil Procedure 8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled to relief, ” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure 12(b)(6) for its “failure to state a claim upon which relief can be granted.” See Fed.R.Civ.P. 12(b)(6).

         When ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn from them, viewed in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court's inquiry is guided by the standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under Twombly and Iqbal, pleading requirements have shifted to a “more heightened form of pleading.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To prevent dismissal, all civil complaints must set out “sufficient factual matter” to show that the claim is facially plausible. Id. The plausibility standard requires more than a mere possibility that the defendant is liable for the alleged misconduct. As the Supreme Court instructed in Iqbal, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (citing Fed.R.Civ.P. 8(a)(2)).

         Accordingly, to determine the sufficiency of a complaint under Twombly and Iqbal, the United States Court of Appeals for the Third Circuit has identified the following steps a district court must take when determining the sufficiency of a complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to state a claim; (2) identify any conclusory allegations contained in the complaint “not entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual allegations” contained in the complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks omitted).

         In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). A court may also consider “any ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, s, [and] items appearing in the record of the case.'” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d Ed. 2004).[1]


         Plaintiff raises four Pennsylvania state law claims and one constitutional law claim in his amended complaint. Count I asserts a “slander/libel” claim against Defendants Waltz and Henning. (Doc. No. 1-3 at 7.) Count II asserts a civil conspiracy claim against Defendants Waltz and Henning. (Id. at 8.) Count III asserts a “malicious prosecution and malicious abuse of process” claim under 42 U.S.C. § 1983 against the Cumberland County Defendants and the East Pennsboro Township Police Department. (Id. at 9.) Count IV asserts a common law “malicious prosecution/abuse of process” claim against the Cumberland County Defendants and the East Pennsboro Township Police Department (Id. at 10), and Count V asserts an invasion of privacy claim against all Defendants. (Id. at 11.)

         A. Plaintiff's 42 U.S.C. § 1983 Claims

         Count III of Plaintiff's amended complaint sets forth a “malicious prosecution and malicious abuse of process” claim under 42 U.S.C. § 1983 against the Cumberland County Defendants and the East Pennsboro Township Police Department. (Id. at 9.) Section 1983 affords a private citizen redress for violations of federal constitutional law committed by state officials. See 42 U.S.C. § 1983. The statute states, in pertinent part:

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 is merely a means through which “to vindicate violations of federal law committed by state actors.” Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)). To maintain a cause of action under Section 1983, a plaintiff must demonstrate that: (1) the conduct complained of was committed by persons acting under color of state law; and (2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of the United States. See Harvey v. Plains Twp. Police Dep't, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).

         1. Claims against District Attorney Freed

         While Plaintiff's amended complaint is not a model of clarity, the Court reads this operative pleading as predicating District Attorney Freed's liability on a lone allegation that District Attorney Freed, “by and through his agents and assistant district attorneys, ” initiated criminal charges against Plaintiff in the absence of probable cause. (Doc. No. 1-3 ¶ 52.) The Cumberland County Defendants move for dismissal of the claims against District Attorney Freed on the basis that Plaintiff has failed to allege his personal involvement in the underlying misconduct and that absolute immunity attaches to all actions taken by District Attorney Freed in his role as a prosecutor. (Doc. No. 8.)

         a. Lack of Personal Involvement

         In order to prevail under Section 1983, a plaintiff must meet a threshold requirement of alleging facts demonstrating a defendant's personal involvement in the alleged misconduct. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.” Id. Allegations that contemplate the imposition of liability based on respondeat superior are simply insufficient for purposes of establishing a defendant's personal involvement in the purported violation of plaintiff's federal civil rights. Id.

         Here, the amended complaint is entirely devoid of factual allegations supporting District Attorney Freed's personal involvement in the events or occurrences underlying Plaintiff's Section 1983 claims. Indeed, a review of the amended complaint reveals that Plaintiff attempts to hold District Attorney Freed personally culpable for the alleged acts of misconduct based solely on his supervisory status, which runs afoul of the well-settled rule barring civil rights liability based upon a theory of respondeat superior.[2] Accordingly, the Court finds dismissal of District Attorney Freed from the amended complaint to be appropriate, as Plaintiff has failed to set forth factual allegations demonstrating this Defendant's personal involvement in the alleged unconstitutional acts.

         b. Prosecutorial Immunity

         More importantly, even accepting as true the allegations contained in the amended complaint, and affording Plaintiff the benefit of every favorable inference drawn therefrom, the claims asserted against District Attorney Freed cannot survive ...

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