United States District Court, W.D. Pennsylvania
R. Hornak, United States District Judge
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.
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
FACTUAL AND PROCEDURAL BACKGROUND 
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.
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.)
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.)
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.
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.
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.
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.)
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.
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.)
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.
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.
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,
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.)
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.
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.) 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.) 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.
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.)
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]."
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.)
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.)
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.)
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.
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.
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).
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.
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.)Plaintiff has filed his reply (ECF No. 27)
in support of the motion to amend, and the foregoing matters
are now ripe for adjudication.
DEFENDANTS' MOTION TO DISMISS
Standard of Review
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).
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.
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.
Analysis of Counts 1 through IV
Plaintiffs Federal Claims
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
42 U.S.C. §1983
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