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Tereo v. Smuck

United States District Court, M.D. Pennsylvania

May 15, 2017

ERIC D. TEREO, Plaintiff


          Christopher C. Conner, Chief Judge

         Plaintiff 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.

         I. Factual Background & Procedural History

         On 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.)

         After 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. ¶ 31).

         Johnson 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.)

         The 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).

         Officer 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).

         Thereafter, 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).

         A 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).

         Tereo 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.

         II. Legal Standard

         Rule 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)).

         Federal 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.

         Courts 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 Corp., ...

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