United States District Court, W.D. Pennsylvania
R. Hornak, United States District Judge.
pending in the above-captioned matter is the Plaintiffs
motion for reconsideration (ECF No. 16) of the Court's
Opinion and Order entered on March 24, 2017 (ECF Nos. 12 and
13) which, in relevant part, dismissed Plaintiffs Fourth
Amendment malicious prosecution claim against Defendant
Joseph R. Zandarski. For the reasons that follow, Plaintiffs
motion will be denied.
Count I of the Complaint, Plaintiff asserted a §1983
claim against Zandarski predicated, in part, on a theory of
malicious prosecution. To prove such a claim, a plaintiff
must show: "(1) the defendant initiated a criminal
proceeding; (2) the criminal proceeding ended in his favor;
(3) the defendant initiated the proceeding without probable
cause; (4) the defendant 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." Johnson v. Know, Ml F.3d 75, 82
(3d Cir. 2007).
moving to dismiss the Complaint, Zandarski challenged only
the fifth element. This Court agreed that the requisite
deprivation of liberty had not been pled, and it dismissed
the claim. In doing so, the Court discussed the concept of
"continuing seizures" as it has been applied in two
Third Circuit opinions: Gallo v. City of Phila., 161
F.3d 217 (3d Cir. 1998), and Black v. Montgomery
Cty.9 835 F.3d 358, 364-65 (3d Cir. 2016),
as amended (Sept. 16, 2016).
Court concluded that Plaintiff had failed to allege
restraints on his liberty that were comparable to those which
the plaintiffs in Gallo and Black had
[DeForte] claims that he was charged by Zandarski for theft
of a firearm, theft of the fire hall radios, and theft of the
money from the prostitution sting operation. The docket sheet
from DeForte's criminal proceeding indicates that these
were second-degree felony and first-degree misdemeanor
charges, so it is fair to say that the alleged criminal
offenses—like the crimes at issue in Gallo and
Black— were serious. However, the docket
further indicates that DeForte was released on his own
recognizance. DeForte does not aver that he was arrested or
required to post bond. Further, he does not allege that he
was restricted in his travel or required to report to the
court on a regular basis prior to the case being nolle
prossed. In short, there are no allegations indicating
that DeForte was subjected to the type of "onerous"
pretrial restrictions that might constitute a Fourth
Amendment "seizure." See DiBella v. Borough of
Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) (noting that
"pretrial custody and some onerous types of pretrial,
non-custodial restrictions constitute a Fourth Amendment
seizure, " and holding that plaintiffs were not
"seized" for purposes of a Fourth Amendment
malicious prosecution claim when they were only issued a
summons, they appeared in court only at their municipal court
trial for criminal trespass, they were never arrested, they
never posted bail, they were free to travel, and they did not
have to report to pretrial services.).
(Op. at 18-19, ECF No. 12.) Based on this line of analysis,
the Court dismissed the §1983 malicious prosecution
claim. Because it perceived no grounds upon which the
deficiency could be cured through further amendment, the
Court dismissed the claim with prejudice. Plaintiff now seeks
a reconsideration of the Court's ruling.
STANDARD OF REVIEW
proper motion for reconsideration "must rely on one of
three grounds: (1) an intervening change in controlling law;
(2) the availability of new evidence; or (3) the need to
correct clear error of law or prevent manifest
injustice." Lazaridis v. Wehmer, 591 F.3d 666,
669 (3d Cir. 2010) (citing N. River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995));
see also Fed. R. Civ. P. 59(e); Allah v.
Ricci, 532 F.App'x 48, 51 (3d Cir. 2013) (citations
omitted); Max's Seafood Cafe v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999). This Court has previously
observed that a motion for reconsideration that
"essentially restates, with added vigor, the arguments
made previously" does not satisfy this "substantial
standard." Peerless Ins. Co. v. Pa. Cyber Charter
Sch., 19 F.Supp.3d 635, 651 (W.D. Pa. 2014) (quoting
Trunzo v. Citi Mortg., 876 F.Supp.2d 521, 544 (W.D.
Plaintiff has claims still pending before the Court in this
litigation, the ruling for which he seeks reconsideration is
an interlocutory one. Some courts within this judicial
district have applied a more discretionary standard of review
where interlocutory rulings are concerned, granting
reconsideration "when it is consonant with justice to do
so." See, e.g., Sampath v. Concurrent Tech.
Corp., No. CIV A 03-264J, 2006 WL 2642417, at *2 (W.D.
Pa. Sept. 13, 2006) (Gibson, J.) ("For interlocutory
orders, greater discretion is invested in the trial court
with jurisdiction over the matter; district courts possess
'inherent power over interlocutory orders, and can
reconsider them when it is consonant with justice to do
so.'")(quoting United States v. Jerry, 487
F.2d 600, 605 (3d Cir. 1973)); Square D Co. v. Scott
Elec. Co., Civil Action No. 06-459, 2008 WL 4877990, at
*1 (W.D. Pa. Nov. 12, 2008) (Fischer, J.) (same).
Nevertheless, "even in the case of interlocutory orders,
'courts should grant motions for reconsideration
sparingly' because of the interest in finality."
Square D Co., 2008 WL 4877990, at *1 (quoting
Montauk Sec. Corp., 153 F.Supp.2d 562, 580 (E.D. Pa.
2001)); see also Micjan v. Wal-Mart Stores, Inc.,
No. CV 14-855, 2017 WL 879634, at *3 (W.D. Pa. Mar. 6, 2017)
(Mitchell, M.J.) ("[E]ven those courts that have applied
the more lenient standard have held that [w]hile a district
court has the inherent power to reconsider an interlocutory
order, [c]ourts tend to grant motions for reconsideration
sparingly and only upon the grounds traditionally available
under Fed.R.Civ.P. 59(e).") (quoting Morgan v.
Hawthorne Homes, Inc., C.A. No. 04-1809, 2010 WL
1286949, at *2 (W.D. Pa. Mar. 31, 2010) (Cohill, J.))
(internal quotation marks omitted; second and third
alterations in the original).
Plaintiff does not cite the relevant standard of review in
his motion, it appears from context that he is arguing only
the third basis for reconsideration (i.e., a
purported "need to correct clear error of law or prevent
manifest injustice"), as no intervening change in the
law or new evidence is cited. Plaintiff posits in his motion
that this Court "may have overlooked the seizure (of
employment) unique to that of police professionals within the
Commonwealth of Pennsylvania, " which occurs "when
a policeman merely gets charged with a felonious crime."
(Mot. for Reconsideration at 3, ECF No. 17.) The basis of
Plaintiff s argument is Pennsylvania's "Confidence
in Law Enforcement Act, " 53 Pa. Stat. Ann.
§§752.1 et seq. (West), pursuant to which
Plaintiff was immediately suspended from his employment as a
police officer, pending final disposition of the criminal
charges. See Id. §752.4. Plaintiff
contends that the "seizure" of his Municipal Police
Officers' Education and Training Commission
certification, "employment credentials, " and
"property interest in his police training" was
"immediate and absolute." ...