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DeForte v. Borough of Worthington

United States District Court, W.D. Pennsylvania

June 6, 2017

THE BOROUGH OF WORTHINGTON, KEVIN FEENEY, Individually and as Mayor of the Borough of Worthington; and GERALD RODGERS, Individually and as a police officer of the Borough of Worthington, Jointly and Severally, Defendant.


          Mark R. Hornak, United States District Judge

         In this civil action, Plaintiff William DeForte ("Plaintiff), a former police officer for the Borough of Worthington, has sued the Borough, Mayor Kevin Feeney, and former fellow police officer Gerald Rodgers for alleged wrongdoing in connection with his prosecution for alleged criminal offenses. This Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 and 1367.

         Presently pending for the Court's consideration are the Defendants' motions to dismiss the Complaint (ECF Nos. 11 and 12) and Plaintiffs motion for leave to amend the Complaint (ECF No. 21). For the reasons that follow, Defendants' motions will be granted in part and denied in part, and Plaintiffs motion to amend the Complaint will be denied.


         On July 23, 2009, Plaintiff was hired as a police officer for Worthington Borough, Pennsylvania (hereafter, the "Borough" or "Worthington Borough"). (Compl. ¶8, ECF No. 1.) He was promoted to the position of Assistant Chief of Police in 2009 and was made Chief of Police on March 9, 2010. (Id. ¶¶ 9-10.)

         During the course of his tenure with the Borough, Plaintiff often "clashed" with fellow police officer Gerald Rodgers ("Rodgers"), Borough Mayor Kevin Feeney ("Feeney"), and Borough Councilman and Constable Barry Rosen ("Rosen"). (Compl. ¶¶16, 21.) One source of conflict concerned Plaintiffs opposition to Feeney's and Rosen's practice of instructing officers that they had to cover the costs of their salaries and police vehicles by writing tickets and collecting fines. (Id. ¶¶18-19.) Another source of conflict concerned Plaintiffs investigation into Feeney's suspected involvement in the theft of radios that had allegedly been stolen from the Borough's fire hall. (Id. ¶17.) A third source involved Plaintiffs assessment that Rosen had unlawfully used police powers while acting in his capacity as Borough Constable. (Id. ¶¶21-24.) A fourth source involved Rodgers' operation of a logging truck in connection with his private logging business on roads in another township that he was not bonded to use. (Id. ¶¶25-26.)

         On September 20, 2011, Feeney signed documentation guaranteeing that any money or equipment donated by officers to the Borough's police department could be retained by the officers as their personal property. (Compl. ¶55.) In reliance on the terms of this document, Plaintiff and fellow officer Evan Townsend ("Townsend") brought furniture, pictures, a television, and various other items to the police department. (Id. ¶56.) They also personally funded the acquisition of five (5) Sig Sauer 556 rifles and a handgun. (Id.) Feeney later permitted Plaintiff to exchange one of the Sig Sauer 556 rifles for a rifle of Plaintiff s choosing through a firearms dealer (id. ¶84), and he signed an authorization form acknowledging that Plaintiff could put the new rifle in his own (Plaintiffs) name. (Id. ¶¶85, 86.)

         During times relevant to this litigation, Plaintiff also used an AR-15 style rifle (hereafter, "Rifle A") for training purposes, which was built mostly from parts that Plaintiff personally owned. (Compl, ¶30.) Specifically, the upper assembly of Rifle A was purchased and owned by Plaintiff, while the lower assembly was owned by the Worthington Borough police department, having been purchased with police equipment grant funds. (Id. ¶¶30-33.) The lower assembly of Rifle A could not fire or otherwise function as an operational rifle without the upper assembly. (Id. ¶¶36-37.)

         Plaintiff also owned a second rifle, an MSAR STG-556 (the "STG-556"), which he used in 2010 and 2011 in connection with his duties as Worthington Borough Police Chief. (Compl. ¶¶40, 43.) At some point prior to April 23, 2011, Rodgers expressed interest in purchasing the STG-556 from Plaintiff. (Id. ¶¶ 41, 45.) Plaintiff agreed to sell Rodgers the STG-556 for $1, 200.00 with the understanding that the sale would take place after Plaintiff became qualified to use Rifle A in lieu of the STG-556. (Id. ¶¶ 42-43.) On or around April 23, 2011, Rodgers ordered an optic sight for the STG-556, which he intended to have installed on the rifle. (Id. ¶45.) Plaintiff subsequently took possession of the optic sight so that he could have it installed and properly aligned prior to transferring the STG-556 to Rodgers. (Id. ¶48.) In mid-May 2011, Plaintiff "zeroed in" the STG-556 with the optic sight. (Id. ¶49.) At that point, the rifle was in perfect functional condition. (Id. ¶50.)

         In June of 2011, after qualifying to use Rifle A as his service rifle, Plaintiff transferred the STG-556 to Rodgers. (Compl. ¶¶ 51-52.) In exchange, Rodgers gave Plaintiff a check for $500 and promised to pay the remaining $700 balance. (Id. ¶¶53-54.)

         Nearly one year later, in May of 2012, Officer Rodgers expressed to Plaintiff his interest in trading the STG-556 for Rifle A. (Compl. ¶¶57-58.) Plaintiff reminded Rodgers that he still owed a $700 balance for the STG-556. (Id. ¶59.) Plaintiff also advised Rodgers that Feeney would need to approve the transfer of Rife A's lower assembly, since that part of the rifle was owned by the Worthington Borough police department. (Id., ¶60.)

         A few days later, Plaintiff spoke with Feeney about Rodger's request. Feeney remarked that Rodgers was a "top producer" in terms of issuing citations and tickets, and he ordered Plaintiff to transfer the lower assembly of Rifle A to Rodgers in order to keep Rodgers happy. (Compl. ¶¶61-65, 67.) Plaintiff subsequently informed Rodgers about his conversation with Feeney and told Rodgers that he did not want the STG-556, but another county official, "Constable Bracken, " did. (Id. ¶¶68-69.)

         On May 31, 2012, in the presence of Plaintiff and another Borough officer, Feeney signed paperwork approving the transfer of the lower assembly of Rifle A to Rodgers. (Compl. ¶¶70-72.) In reliance on this written authorization, Plaintiff agreed to transfer possession of the Rifle A to Rodgers. (Id. ¶76.) On or about that same day, Constable Bracken took possession of the STG-556. (Id. ¶73.) Upon transferring Rifle A to Rodgers, Plaintiff informed Rodgers that he would have to pay an extra $500 for the "Trijicon optic sight" that was installed on the weapon. (Id. ¶77.) Although Rodgers agreed to do so, he never made this additional payment, nor did he ever pay the $700 balance for the STG-556. (Id. ¶¶ 78, 54.)

         At some point during the summer of 2012, Plaintiff discovered that Feeney had used thousands of dollars of police grant money to fund the repair and replacement of the traffic control light system on U.S. Route 422. (Compl. ¶¶89-92.) Plaintiff discussed the matter with Borough Secretary David Conoran, who remarked that many surreptitious practices happened in the Borough all the time. (Id. ¶92.) Following this conversation, Plaintiff opened an investigation into Feeney's suspected misuse of the police grant money. (Id. ¶93.)

         Later that summer, the Borough's police department initiated an undercover prostitution sting operation, which resulted in several arrests. (Compl. ¶¶94-95.) The money confiscated from each arrest was placed into an individual evidence envelope, logged according to the arrest record, and placed in the police department's evidence locker. (Id. ¶96.) Once a case was disposed of in court, the corresponding cash envelop was no longer considered evidence; at that point it was transferred from the evidence locker to the gun safe until the money could be returned or recovered through forfeiture proceedings. (Id. ¶97.) Envelopes with cash corresponding to open criminal cases were stored in the evidence locker. (Id. ¶98.)

         On October 24, 2012, matters came to a head when Plaintiff confronted Feeney regarding his suspected involvement in the theft of radios from the Borough's fire hall. (Compl. ¶99.) Feeney allegedly acknowledged taking the radios and inquired whether Plaintiff was investigating him. (Id. ¶IOO.) In the course of this conversation, Plaintiff referenced Feeney's practice of imposing citation quotas and also questioned Feeney about his use of police grant funds to purchase traffic control lights. (Id. ¶¶101-102.)

         Two days later, on October 26, 2012, Plaintiff received word that the police department's computers and hard drives were missing. (Compl. ¶¶103-104.) Plaintiff went to the police department and confirmed the items were missing, along with all criminal investigation files concerning Feeney and the firearms transfer records that Feeney had signed. (Id. ¶¶105-107.) All of the missing items were taken either from Plaintiffs private desk, without his permission, or from a locked cabinet. (Id. ¶108.)

         That evening, Feeney confronted Plaintiff in the Borough Council's room, screaming and appearing as though he might physically attack Plaintiff. (Compl. ¶¶ 110, 112-113.) Feeney acknowledged that he had the missing firearm transfer documents and stated that he was going to turn Plaintiff in to the ATF, suggesting that, without documentation of Feeney's approval of the firearm transfers, Plaintiff would be facing legal trouble. (Id. ¶114.) Feeney then instructed Plaintiff to collect his belongings from the police department and leave. (Id. ¶115.) Plaintiff complied with this directive and removed all of his personal belongings from the department office. (Id. ¶116.)

         At this point Evan Townsend, another Worthington Borough police officer, feared that Feeney would terminate him as well, because Townsend had initiated the investigation into Feeney's suspected theft of the radios. (Compl. ¶¶117-118.) Townsend therefore made the decision to return his department-issued rifle to the police department and gather his personal belongings. (Id. ¶¶118-119.) While at the police department, Townsend photographed the gun safe contents in order to document the fact that he had returned his rifle; he also photographed the large envelope containing the adjudicated files and money from the prostitution sting operation. (Id. ¶¶120-121.)

         According to the official minutes of the Worthington Borough Council, Plaintiff was suspended from his duties as Chief of Police on October 26, 2012 for alleged "insubordination and other possible offenses." (Compl. ¶11.) He was officially terminated from his position on November 5, 2012 during a meeting of the Borough Council that he was not permitted to attend. (Id.¶¶12, 13.)

         At times relevant to this lawsuit, Plaintiff - while serving as Worthington Borough's Chief of Police - was also simultaneously employed as a police commander with the Pine Township Police Department. (Compl. ¶125.) In that capacity, Plaintiff served under Pine Township Police Chief Christopher Airgood. (Id.) At some point, Plaintiff entrusted Airgood with the official documents that authorized the aforementioned firearms transfers. (Id. ¶128.) Airgood kept the Worthington Borough documents secured at the Pine Township police department. (7tf.¶128.)

         On or about October 30, 2012, Feeney and Pine Township Supervisor Clyde Moore broke into the Pine Township Police Department office and cut the locks off of Airgood's and Plaintiffs personal lockers. (Compl. ¶¶123-125.) Several days later, Pine Township's supervisors summarily terminated Airgood's employment and disbanded the Township's police department. (Id. ¶126.) The following day, Airgood collected his and Plaintiffs personal belongings from the police department. (Id. ¶127.) Airgood noticed that certain personal items and effects were missing from the office, including the Worthington Borough documents that had been given to him by Plaintiff for safe keeping. (Id. ¶128.)

         In August 2013, Plaintiff left Worthington Borough to attend law school at the University of Massachusetts at Dartmouth. (Compl. ¶135.) At the time, Plaintiff was still an active police officer holding the rank of captain at the North Buffalo Township police department. (Id. ¶¶ 133-134.) Plaintiff able to maintain his status as an active police office because North Buffalo Township gave him a flexible schedule which allowed him to work around his law school schedule. (Id. ¶¶ 133-134, 136.)

         At one point in October 2013, Plaintiff was escorted to the Dean's office of his law school and advised that he could not carry his service weapons on campus because he was not a police officer and therefore was not covered by the Law Enforcement Safety Act. (Compl. ¶¶137-139.) Plaintiff produced his North Buffalo Township police credentials, which he claims were still valid, but the Dartmouth chief of police would not recognize them as legitimate. (Id. ¶¶ 140-141.) The police chief then remarked that Plaintiff should talk to Worthington Borough or the Pennsylvania State Police as to why this was happening to him. (Id. ¶142.) Plaintiff was subsequently charged in Massachusetts with criminal firearms possession; however, the charges were later dismissed after an investigation confirmed that Plaintiff was, in fact, permitted to carry his firearm under the Law Enforcement Safety Act. (Id. ¶¶143, 147.)

         In or around January 2014, the Pennsylvania State Police filed various criminal charges against Plaintiff relating to firearm theft, radio theft, and the theft of money from the prostitution sting operation. (Compl. ¶144; see also ECF No. 11-2.) The following month, Plaintiff was informed by Conoran of a conversation that Conoran had overheard in November of 2012 during which Feeney, Rodgers, and Rosen had discussed ways to ensure that Plaintiff would never again hold employment as a police officer. (Id. ¶¶149-151.) Conoran allegedly informed Plaintiff that Feeney, Rodgers, and Rosen had alluded to using illegal means in order to ensure that Plaintiff would be arrested and prosecuted. (Id. ¶152.)

         Plaintiff now claims that Feeney and Rodgers did, in fact, conspire with others to frame him for theft so that unjustified criminal charges would be brought against him. (Compl. ¶¶ 156, 166-167.) Specifically, Plaintiff avers that Rodgers and Feeney "intentionally and surreptitiously" took the money associated with adjudicated prostitution sting cases from the gun safe; Rosen then photographed the safe in order to document the purported theft of the money envelopes. (Id. ¶¶174-175.)[2] Plaintiff also appears to be alleging that Rodgers and Feeney framed him for stealing Rifle A from the police department premises. The complaint suggests that Rodgers took possession of Rifle A, while Feeney falsely told the Pennsylvania State Police that he had never signed any documents authorizing the transfer of the weapon. (Id. ¶¶158, 168(i).) When confronted with the firearm transfer documents, Feeney allegedly admitted at first that he may have signed them but then later maintained, falsely, that his signature had been forged by Plaintiff. (Id. ¶¶159-160.)[3] Plaintiff also claims that Feeney planted evidence at the Pine Township Police Department - namely, two brand new handheld radios that were property of the Worthington Borough Police Department - so that Plaintiff would be charged for the theft of the radios. (Id. ¶180.) Finally, Plaintiff appears to be asserting that he was falsely accused by Rodgers of theft in connection with the transfer of the STG-556.

         On February 26, 2014, Plaintiff attended his preliminary hearing, after which the theft charges were bound over to the Court of Common Pleas. (See ECF No. 11-2.) According to Plaintiff, Rodgers was present at the preliminary hearing and provided false testimony in support of the bogus criminal charges. (Compl. ¶¶ 165(h)-(i), 166, 169, 171; see also ECF No. 11-2.)

         Concerning his purchase of the STG-556, Rodgers testified: (a) that he paid a total of $1, 500.00 (not $1, 200.00) for the rifle, (b) that the first payment was a cash payment for $500.00 in early 2011, (c) that, shortly after this first cash payment, Rodgers discovered that the rifle was not functional, (d) that Rodgers then returned the STG-556 to Plaintiff, along with another $500.00 cash payment, so that Plaintiff could have the rifle repaired, and (e) that Rodgers made the final $500.00 payment in the form of a personal check. (Id. ¶¶ 165(a)-(f) and 168(a)-(e).) Plaintiff claims that, in actuality, Rodgers received the fully functional STG-556 rifle in June 2011, at which time he made his first and only payment in the form of a personal check in the amount of $500.00, despite the agreed upon price of $1, 200.00. (Id. ¶¶44, 50, 52-54, 168(a)-(d).) Moreover, Rodgers personally brought the STG-556 to the Worthington Borough police department on or about May 31, 2012, at which time he transferred it directly to Constable Bracken, "almost one year after he falsely told the court that he had returned it to [Plaintiff]." (Id. ¶168(e).)

         Rodgers also testified concerning the supposed "theft" of Rifle A. According to Plaintiff, Rodgers told the court "that he did not know where the 'missing' rifle was from Worthington Borough, when in fact he knew that the 'missing' rifle was the one given to him by Mayor Feeney and was at that time in his exclusive possession in his personal gun safe at his residence." (Compl. ¶168(i).) Rodgers further testified, falsely, "that he did not know that the lower assembly to Rifle A was Worthington Borough property, " thereby "alleging and insinuating that he was somehow mislead [sic] by [Plaintiff]." (Id. ¶170.)

         With regard to the money obtained from the prostitution sting operation, Rodgers allegedly testified that: (a) he, Feeney, and Rosen went to the Worthington Borough Police Department on October 28, 2012 and secured the evidence locker with police tape and two locks, and (b) he (or others) took an inventory of the locker contents some thirty (30) days later, at which time money from the prostitution sting operation was found to be missing. (Compl. ¶¶168(j), 172-173.) Plaintiff claims that the testimony was a lie "designed to illegaly create an appearance of theft of Worthington Borough property . . . ." (Id. ¶169.)

         In the summer of 2014, Plaintiff received discovery materials from the district attorney's office. (Compl. ¶153.) From these materials, he allegedly learned for the first time that Feeney and Rodgers had "participated and conspired to participate in planting evidence, stealing money from the [gun] safe and evidence locker, " and "other activities" that resulted in him being criminally charged. (Id. ¶156.)

         Later in 2014, Feeney testified at Plaintiffs omnibus motion hearing, at which time he acknowledged breaking into Plaintiffs locker at the Pine Township police department, with the help of a township supervisor. (Compl. ¶¶176-177.) Although Feeney claimed that he had only taken some gun magazines that he believed were property of the Worthington Borough Police Department, Plaintiff insists that, in actuality, Feeney took many more items from his locker - all of which were Plaintiffs personal property. (Id. ¶¶ 178-179.) Plaintiff theorizes that Feeney broke into his locker at the Pine Township Police Department in order to search for the remaining copies of the firearm transfer documents so that he could destroy them and thereby ensure that Plaintiff would be criminally charged. (Id. ¶181.)

         In August 2015, the Armstrong County District Attorney's office agreed to a nolle prosequi all of the criminal charges against Plaintiff. (Compl. ¶163.) This lawsuit followed on January 14, 2016, with the filing of Plaintiff s four-count Complaint (ECF No. 1). Count I of the Complaint asserts federal claims against the Defendants pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988. Counts II through IV assert state law claims for malicious prosecution, abuse of process, and intentional infliction of emotional distress, respectively.

         On March 28, 2016, separate motions to dismiss and supporting briefs were filed by Rodgers (ECF Nos. 11, 14) and the Borough/Feeney (ECF Nos. 12, 13). Plaintiff filed his responses and briefs opposing the motions on April 12, 2016 (ECF Nos. 15, 16, 17, 18). Defendants filed their respective replies one week later (ECF Nos. 19, 20).

         On May 25, 2016, Plaintiff filed a motion to amend his Complaint so as to add two new causes of action (ECF No. 21). Proposed Count V would add claims against the Borough and Feeney for the alleged violation of Plaintiffs Fourth Amendment Rights, and conspiracy to violate Plaintiffs Fourth Amendment rights, relative to Feeney's allegedly unlawful search and seizure of personal property that Plaintiff had kept in a locker at the Pine Township police department. Proposed Count VI would add a claim against the Borough and Feeney for alleged conversion of that property.

         The Borough and Feeney contest Plaintiffs proposed amendments on the grounds that the new claims are time-barred, unduly delayed and/or futile. (See ECF Nos. 24 and 25.)[4]Plaintiff has filed his reply (ECF No. 27) in support of the motion to amend, and the foregoing matters are now ripe for adjudication.


         A. Standard of Review

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of cases that fail to state a claim upon which relief can be granted. Complaints must allege facts "sufficient to show that the plaintiff has a 'plausible claim for relief.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). In assessing a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept all "well-pleaded facts as true"; any legal conclusions set forth in the complaint must be disregarded. Fowler, 578 F.3d at 210-11 (citing Iqbal, 556 U.S. at 677); Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

         In reviewing a Rule 12(b)(6) motion, a district court generally may not consider matters outside of the complaint. "If, on a motion under Rule 12(b)(6) ..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d). An exception exists with respect to: (i) exhibits that are attached to the complaint; (ii) matters of public record; and, (iii) any undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the document is integral to or explicitly relied upon in the complaint. 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).

         In this case, Rodgers has appended to his motion a copy of the Magisterial District Judge's docket from Plaintiffs state court criminal proceedings (ECF No. 11-2). Because this information is a matter of public record, it is appropriate for consideration at the Rule 12(b)(6) stage.

         B. Analysis of Counts 1 through IV

         1. Plaintiffs Federal Claims

         In Count I of the Complaint, Plaintiff asserts federal claims against the Borough, Feeney, and Rodgers, under 42 U.S.C. §§1983, 1985, 1986 and 1988. We will address these claims seriatim.

         a. 42 U.S.C. §1983

         Section 1983 provides a private right of redress as against:

[e]very 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 ...

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