United States District Court, M.D. Pennsylvania
ERIC D. TEREO, Plaintiff
DARRYL L. SMUCK, II and SOUTHERN REGIONAL POLICE DEPARTMENT, Defendants
Christopher C. Conner, Chief Judge
Eric D. Tereo ("Tereo") filed the above-captioned
action asserting malicious prosecution claims pursuant to 42
U.S.C. § 1983 and state law. Before the court is a
motion (Doc. 11) to dismiss filed by defendants Officer
Darryl L. Smuck, II ("Officer Smuck") and the
Southern Regional Police Department. The court will grant in
part and deny in part the pending motion.
Factual Background & Procedural History
November 19, 2013, Tereo visited a Sunoco gas station and
convenience store located at 62 North Main Street in
Stewartstown, York County, Pennsylvania. (Doc. 1 ¶ 7).
Upon exiting the store and returning to his vehicle, Tereo
witnessed a dispute between a man and woman. (Id.
¶¶ 10-12). Tereo observed the man, later identified
as seventy-six year old Carl E. Johnson, Jr.
("Johnson"), reaching into the woman's vehicle.
(Id. ¶¶ 8, 12). The woman drove away from
Johnson as a Sunoco employee, Tammy Reynolds
("Reynolds"), exited the store. (Id.
¶¶ 14-15). According to the complaint, Johnson then
advanced toward Reynolds, causing Tereo to fear for
Reynolds' safety. (Id. ¶¶ 16-17). In
response, Tereo ran to Reynolds and allegedly placed himself
in a protective position between Reynolds and Johnson.
(Id. ¶¶ 18-19). Tereo purportedly put his
hands in the air and instructed Johnson to leave.
(Id. ¶ 20). Johnson ignored Tereo's
request, attempted to step around Tereo, and extended his
arms towards Reynolds. (Id. ¶¶ 21-23).
Tereo reacted to this threat by pushing Johnson away.
(Id. ¶ 24). The push caused Johnson to fall
backwards off of a curb. (Id.)
his fall, Johnson allegedly yelled that he was going to
summon his son to fight Tereo. (Id. ¶ 25).
Johnson then unsuccessfully sought to have an employee of a
neighboring business, Leffler Fuel, call the police.
(Id. ¶¶ 26-27). According to the
allegata, immediately prior to the subject
altercation, Reynolds told Johnson to leave the store and
never return. (Id. ¶ 28). Moreover, Johnson
allegedly had a history of harassing female employees and
customers of Sunoco and was previously told not to return
there. (Id. ¶¶ 29-30). Johnson claimed
that his fall resulted in physical injuries. (Id.
reported the confrontation to Officer James Bowser
("Officer Bowser") of the Stewartstown Police
Department, who conducted an initial investigation.
(Id. ¶ 32). Officer Bowser reviewed
surveillance footage of the incident and interviewed several
witnesses. (See id. ¶ 78). The surveillance
footage depicted Johnson as the aggressor. (See id.)
Two eyewitnesses also described Johnson as the aggressor and
told Officer Bowser that Tereo acted in self-defense and in
defense of Reynolds. (See id.) A third witness
informed Officer Bowser of Johnson's past transgressions
at Sunoco. (See id.)
Stewartstown Police Department closed at the end of 2013, at
which time the borough of Stewartstown contracted with
Southern Regional Police Department for law enforcement
services. (Id. ¶¶ 33-34). On January 18,
2014, Johnson's wife reported the incident to Officer
Smuck of the Southern Regional Police Department.
(Id. ¶ 35). Officer Smuck reviewed Officer
Bowser's notes, an officer's log, surveillance
photos, Johnson's written statement, and Johnson's
medical records, but was unable to locate or obtain the
surveillance footage examined by Officer Bowser.
(Id. ¶¶ 36, 38-39). Officer Smuck also
interviewed Johnson and his wife. (Id. ¶ 37).
Smuck and Southern Regional Police Department released a
surveillance photo of Tereo and identified him as a person of
interest. (Id. ¶¶ 41-42). Tereo was in
Delaware at the time and his friends in Pennsylvania informed
him that local television news outlets were reporting on the
incident. (Id. ¶ 43). Media releases stated
that Tereo had struck and spit on an elderly man.
(Id. ¶ 44). Officer Smuck received information
indicating that Tereo was the man in the photo. (Id.
¶ 45). Johnson identified Tereo in a photo lineup.
(Id. ¶ 46).
Officer Smuck filed a criminal complaint charging Tereo with
state law crimes of simple assault, disorderly conduct, and
physical harassment. (Id. ¶ 47). The affidavit
of probable cause attached to the criminal complaint
described Officer Smuck's findings as follows:
On 11/19/2013 at 1505 hours Officer James Bowser of the
Stewartstown Police Department was dispatched to the Sunoco
Gas Station located at 62 N. Main St. in Stewartstown Borough
for an assault.
On 01/18/2014 I met with the victim Carl Johnson and his wife
at their residence. Carl Johnson advised the following: He
stated that he was at the Sunoco filling his vehicle with
gasoline when a female in her 20's pulled in next to
Johnson and had a "lit cigarette in her mouth."
Johnson asked her to extinguish the cigarette because he was
pumping gasoline and advised of the no smoking signs. Johnson
felt that she did not hear him or ignored him. He said that
she then placed the cigarette in the ash stand and entered
the store. About 2-3 minutes later the same female exited the
store and Johnson was still pumping gasoline. Johnson walked
over to the female and told her she should have put the
cigarette out and "reminded her that she was in a no
smoking zone." Johnson reported that the store clerk
then exited the store and asked him not to be harassing the
customers and requested that he leave. At the same time
Johnson reported that a "young man" came from
behind him and started to threaten him, stating that he would
smash Johnson's face in for harassing a woman in his
presence. Johnson[ ]reported that the male subject started
"sticking his finger in Johnson's face" and
stated "old man I'll push your [f******] face
in" and then pushed Johnson hard enough to "slam
him extremely into the ground" which is concrete
pavement. Johnson stated that he was stunned and unable to
get up immediately. After Johnson was able to get back up he
stated that the man charged him again, "got right in my
face saying he had something else for me", and he
"blew spit in my face." Johnson stated that the man
continued to threaten him so Johnson went to the Leffler Fuel
Co. 911 was called by his wife after Leffler Oil refused to
help him. Johnson stated that he attempted to get the license
plate off the car but the male blocked his view and
threatened him again. Johnson stated that the male subject
got into a small gray or green car and left while the store
clerk told him to "get out and stay away."
Johnson was transported by ambulance to Memorial Hospital ED
for evaluation and treatment. Medical records from Memorial
Hospital showed the following diagnosis for Johnson: Assault,
rib fracture -1 rib closed, cervical strain, head injury -
superficial, chest wall contusion, and hip strain.
On 01/27/2014 a photo of the suspect and vehicle were
released to the media and placed on the department Facebook
page for identification.
I received an anonymous call on 01/28/2014 from an anonymous
caller stating she believed the person in the surveillance
photo was Eric TEREO and that he also has a similar vehicle.
Another person also gave the same information via tip line.
York Area Regional Police were sent to TEREO's last known
address (Crestview Dr.) and TEREO never contacted me. I was
also given several cell phone numbers for TEREO but he never
returned my phone call. TEREO also deactivated or blocked his
Facebook account the same day I sent York Area Regional PD to
the address listed on his driver's license.
On 02/11/2014 victim Carl Johnson and his wife appeared at
the police station for follow up. A photo lineup was
displayed to Johnson and he identified Eric TEREO as the one
who assaulted him at the gas station.
Johnson reported that he is having ongoing medical issues as
a result of the assault which include chronic left shoulder
pain/problems and chronic protruding left rib and pain (rib
that was fractured as a result of this incident).
TEREO currently has a warrant issued for disorderly conduct
and has not returned any of my phone calls. Based on this
information I am requesting a warrant of arrest be issued for
Eric Dennis TEREO.
(Id. ¶ 48).
warrant for Tereo's arrest issued based on Officer
Smuck's affidavit. (See id. ¶ 49). Tereo
surrendered himself to law enforcement upon learning of the
warrant. (Id.) Officers then placed Tereo under
arrest and transported him to York County Prison.
(Id. ¶ 50). The criminal charges were bound
over for court and the prosecutor filed an information for
the crimes charged in the criminal complaint. (Id.
¶ 51). According to the complaint, Tereo spent roughly
$10, 000 on his bail and defense, suffered
alienation from family and friends, was expelled from the
Pennsylvania State University, and could not find employment.
(IcL ¶¶ 53-56). On March 12, 2015, Tereo was
acquitted of all charges following a jury trial.
(Id. ¶ 57). Nonetheless, the charges remain on
Tereo's record and media stories remain on the internet.
(Id., ¶¶ 59-60).
filed this civil rights action on July 11, 2016. (Doc. 1). In
his three-count complaint, Tereo asserts claims for malicious
prosecution under federal (Count I) and state law (Count
III), as well as a municipal liability claim under Monell
v. Department of Social Services, 436 U.S. 658, 690-94
(1978) (Count II). On October 25, 2016, Officer Smuck and
Southern Regional Police Department filed the instant motion
(Doc. 11) to dismiss all claims pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. The motion is fully
briefed and ripe for disposition.
12(b)(6) of the Federal Rules of Civil Procedure provides for
the dismissal of complaints that fail to state a claim upon
which relief may be granted. Fed.R.Civ.P. 12(b)(6). When
ruling on a motion to dismiss under Rule 12(b)(6), the court
must "accept all factual allegations as true, construe
the complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief."
Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d
Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd.,
292 F.3d 361, 374 n.7 (3d Cir. 2002)).
notice and pleading rules require the complaint to provide
"the defendant fair notice of what the . . . claim is
and the grounds upon which it rests." Phillips,
515 F.3d at 232 (alteration in original) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To
test the sufficiency of the complaint, the court conducts a
three-step inquiry. See Santiago v. Warminster Twp,
629 F.3d 121, 130-31 (3d Cir. 2010). In the first step,
"the court must 'tak[e] note of the elements a
plaintiff must plead to state a claim.'"
Id. at 130 (alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next,
the factual and legal elements of a claim must be separated;
well-pleaded facts are accepted as true, while mere legal
conclusions may be disregarded. Id. at 131-32;
see Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11
(3d Cir. 2009). Once the court isolates the well-pleaded
factual allegations, it must determine whether they are
sufficient to show a "plausible claim for relief."
Iqbal 556 U.S. at 679 (citing Twombly, 550
U.S. at 556); Twombly, 550 U.S. at 556. A claim is
facially plausible when the plaintiff pleads facts "that
allow[ ] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Iqbal 556 U.S. at 678.
should grant leave to amend before dismissing a curable
pleading in civil rights actions. See Fletcher-Harlee
Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,
251 (3d Cir. 2007); Grayson v. Mayview State Hosp.,
293 F.3d 103, 108 (3d Cir. 2002). Courts need not grant leave
to amend sua sponte in dismissing non-civil rights
claims pursuant to Rule 12(b)(6), Fletcher-Harlee