United States District Court, M.D. Pennsylvania
GREGORY J. MARTUCCI, Plaintiff
MILFORD BOROUGH, et al., Defendants
MALACHY E. MANNION JUDGE
Gregory J. Martucci was a patron at a local Inn when another
patron, who was intoxicated, became abusive toward female
patrons. Plaintiff and other men removed the unruly patron
from the Inn. The patron who was removed claimed that
plaintiff and the other men assaulted him. Plaintiff and the
men were arrested by the police and charged with several
crimes. Subsequently, the criminal charges against plaintiff
were dismissed. Plaintiff then initiated this civil rights
action, pursuant to 42 U.S.C. §1983 and 28
U.S.C. §1331. suing the Milford Borough and the
police chief as well as the patron who alleged he was
assaulted. The Borough and the police chief have moved to
dismiss two Counts of plaintiffs amended complaint against
them for malicious prosecution as well as his request for
declaratory relief. The police chief also claims that he is
entitled to qualified immunity. For the reasons that follow,
the motion to dismiss will be GRANTED in
part and DENIED in part.
February 14, 2015 and the early morning hours of February 15,
2015, plaintiff was a patron at the Dimmick Inn in Milford,
PA. Plaintiff saw another patron, defendant Omar Ashmawy,
become verbally abusive towards the wife of the Inn's
owner and a female bartender at the Inn. Plaintiff then saw
Ashmawy, who appeared to be visibly intoxicated, physically
assault the owner's wife and her female friend. Plaintiff
along with the Inn's owner, John Jorgenson, and another
person then pulled Ashmawy away from the two women. At this
point, Kelly Paddock, Ashmawy's girlfriend, exited the
restroom and began to kick and punch Tim Riley and other
patrons in the Inn. Ashmawy was extremely violent and
belligerent at the time. Plaintiff then pulled Ashmawy away
from owner's wife and her female friend and took him
outside of the Inn. At no point during this incident did
plaintiff punch or strike Ashmawy. Nor did Plaintiff engage
in any criminal or tortious behavior towards Ashmawy. At all
times, plaintiff acted in the justified defense of the
owner's wife and her female friend as well as other
patrons in the Inn.
they were outside, Ashmawy began to engage in a physical
dispute with Paddock, who was also visibly intoxicated.
Ashmawy then yelled, "you'll be sorry!",
directed at plaintiff and the others who assisted plaintiff
in subduing Ashmawy. Police officers from the Milford Police
Department ("MPD") then arrived on the scene and,
they put Ashmawy and Paddock in a patrol car and removed them
from the scene.
thereafter, defendant MPD Chief Joaquim DaSilva began
investigating the incident at the Inn. Plaintiff alleges that
the personal investigation of an incident by DaSilva was
contrary to accepted MPD practice or procedure. Jorgenson and
his wife gave statements to the police and photos of bruising
caused by Ashmawy on the wife's arm. Nonetheless, the
photos were not maintained in the case file by DaSilva,
contrary to accepted MPD practice and procedure. DaSilva then
directed that no criminal charges be filed against Ashmawy
due to Ashmawy's political position in Washington, DC as
Staff Director and Chief Counsel of the Office of
Ashmawy falsely claimed that he had been assaulted by
plaintiff, Jorgenson and Riley. On March 17, 2015, DaSilva
informed plaintiff that Ashmawy had made complaints to MPD
and the Pike County District Attorney and alleged that
plaintiff and the other men assaulted him during the incident
at the Inn and caused him physical injuries. However, DaSilva
indicated to plaintiff that the allegations were baseless
and, that they would not be proceeding any further.
alleges that Ashmawy continued to complain to the MPD and the
Pike County District Attorney's Office falsely claiming
that he was assaulted by plaintiff and the other men and
suffered injuries and, that Ashmawy "threaten[ed] to use
his position as Staff Director and Chief Counsel of the
Office of Congressional Ethics to induce a criminal
proceeding to be brought against Plaintiff and [the]
others." Plaintiff also alleges that Ashmawy wrote a
letter to the District Attorney's Office "using his
congressional office address and threatening federal
investigation/inquiry into the conduct of the [MPD] and/or
the Pike County District Attorney's Office."
Further, Ashmawy signed an Affidavit of Probable Cause in
which plaintiff alleges that "he falsely claimed that
Plaintiff and one to two other men assaulted him, choked him,
threw him to the ground, and kicked him" causing him to
lose sight in one eye and suffer fractures. As such,
plaintiff avers that Ashmawy threatened to use the power of
his office as a federal government official to coerce the MPD
and the District Attorney to initiate criminal proceedings
despite his representations to plaintiff that no charges
would be filed and, based on Ashmawy's continued threats
and demands that charges be filed, DaSilva informed other
individuals that he was filing felony charges against
plaintiff because Ashmawy was a "DC big shot." On
April 28, 2015, DaSilva signed an Affidavit of Probable Cause
for an arrest warrant, but the arrest warrant did not
positively identify plaintiff. Plaintiff alleges that DaSilva
knew that Ashmawy's allegations were false but
nonetheless relied upon them to support the filing of
criminal charges, including felony aggravated assault.
Plaintiff avers that DaSilva also knew that other allegations
in his Affidavit of Probable Cause were false. Plaintiff also
alleges that DaSilva ignored evidence showing that he did not
assault Ashmawy, including the facts that none of the other
individuals interviewed by police regarding the incident
specifically identified him as having assaulted Ashmawy and
that several witnesses corroborated his version of the
incident. Regardless, "DaSilva either personally issued
the criminal charges against Plaintiff and/or personally
ordered that criminal charges be instituted, with the
knowledge that they were without merit." Thus, based on
Ashmawy's false allegations and DaSilva's statements
contained in his Affidavit of Probable Cause, which he knew
to be false, plaintiff, Jorgenson and Riley were criminally
charged on April 30, 2015 with aggravated assault, disorderly
conduct, attempted assault and harassment, regarding the
incident at the Dimmick Inn.
November 4, 2015, a preliminary hearing was held regarding
the charges filed against plaintiff, Jorgenson and Riley.
Plaintiff alleges that Ashmawy falsely testified that he and
the other men assaulted him. Based on Ashmawy's
testimony, the criminal charges against all three men were
held over for trial.
on November 4, 2015, plaintiff reported to MPD and was
escorted by DaSilva to be processed. Plaintiff was then
processed and "booked" by the MPD. DaSilva ordered
officer Bierle to ensure that plaintiff remained present to
be processed. Plaintiff was in the custody and/or control of
an MPD officer at all times and was not free to leave the
September 9, 2016, Jorgenson and Riley pleaded nolo
contendre to one of the criminal charges Bierle filed
against them, namely disorderly conduct engage in fighting,
regarding the incident at the Inn. See Pike County
Court criminal dockets in Com. of PA v. Jorgenson,
Docket No. CP-52-CR-0000608-2015 and Com. of PA v.
Riley, Docket NO.CP-52-CR-0000609-2015.
September 9, 2016, the Pike County District Attorney's
Office agreed to nolle pros the charges against
plaintiff and they were dismissed. No. conditions were placed
on plaintiff in exchange for nolle prossing the
charges. On October 20, 2016, the criminal charges filed
against plaintiff and his arrest were expunged. As such,
there is no Pike County Court criminal docket available
regarding the criminal case filed against plaintiff.
result of the criminal charges, plaintiff alleges that he was
suspended without pay from his federal employment, that he
lost his health insurance and, that during his suspension, he
was prohibited by his federal agency from obtaining outside
employment unless it was pre-authorized by the
agency. Plaintiff also alleged that he suffered
monetary damages, including penalties and taxes by
withdrawing money from his federal retirement account in
order to defend himself against the false charges.
September 15, 2017, plaintiff filed the instant civil rights
action pursuant to 42 U.S.C. §1983 against defendants
Milford Borough and DaSilva and, under
Bivens pursuant to 28 U.S.C. §1331
against Ashmawy. (Doc. 1). Plaintiff then filed an amended
complaint on November 2, 2017, in response to a motion to
dismiss filed by the Borough defendants. (Doc. 14). Plaintiff
does not indicate if he sues defendants DaSilva and Ashmawy
in both their official and individual capacities. Plaintiff
alleges that his Fourth, Fifth and Fourteenth Amendment
rights were violated by the defendants.
in Count I, plaintiff asserts a malicious prosecution claim
against Ashmawy under Bivens and, in Count II, he
asserts a state law malicious prosecution claim against
Ashmawy. In Count III, plaintiff asserts an abuse of process
claim against Ashmawy under Bivens and, in Count IV,
plaintiff asserts a state law abuse of process claim against
Ashmawy. In Count V, plaintiff asserts a malicious
prosecution claim, based on municipal liability, against the
Milford Borough and Chief DaSilva, as a decisionmaker, under
§1983. Finally, in Count VI, plaintiff asserts a
malicious prosecution claim against DaSilva under §1983.
relief, plaintiff requests compensatory damages against all
three defendants and punitive damages only against the two
individual defendants, as well as a declaratory judgment that
defendants' alleged acts "have violated and continue
to violate [his] rights." Plaintiff also requests
attorney's fees, pursuant to 42 U.S.C. §1988, and
is the motion to dismiss Counts V and VI of plaintiffs
amended complaint for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b) (6) filed jointly by the Milford
Borough and DaSilva, (Doc. 16), on November 16, 2017.
Defendants simultaneously filed their brief in support. (Doc.
17). Plaintiff filed his brief in opposition to
defendants' motion on November 30, 2017. (Doc. 20). On
December 14, 2017, defendants filed a reply brief. (Doc. 24).
Defendants' Rule 12(b)(6) motion is ripe for disposition.
pending is the Rule 12(b)(6) motion of Ashmawy, (Doc. 18),
which shall be addressed in a separate Memorandum.
court has jurisdiction over this case pursuant to 28 U.S.C.
§1331 and 28 U.S.C. §1343(a) because plaintiff
avers violations of his constitutional rights under the
Fourth, Fifth and Fourteenth Amendments of the U.S.
Constitution. The court can exercise supplemental
jurisdiction over plaintiffs state law claims under 28 U.S.C.
§1367. Venue is appropriate in this court since the
alleged constitutional violations occurred in this district
and all parties are located here. See 28 U.S.C. §1391.
STANDARDS OF REVIEW
Motion to Dismiss
defendants' motion to dismiss is brought pursuant to the
provisions of Fed.R.Civ.P. 12(b)(6). This rule
provides for the dismissal of a complaint, in whole or in
part, if the plaintiff fails to state a claim upon which
relief can be granted. The moving party bears the burden of
showing that no claim has been stated, Hedges v. United
States. 404 F.3d 744. 750 (3d Cir. 2005) and dismissal
is appropriate only if, accepting all of the facts alleged in
the complaint as true, the plaintiff has failed to plead
"enough facts to state a claim to relief that is
plausible on its face, " Bell Atlantic Corp. v.
Twombly. 550 U.S. 544.127 S.Ct. 1955.1974 (2007)
(abrogating "no set of facts" language found in
Conley v. Gibson. 355 U.S. 41.45-46 (1957)). The
facts alleged must be sufficient to "raise a right to
relief above the speculative level." Twombly.
550 U.S. 544. 127 S.Ct. at 1965. This requirement "calls
for enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of necessary elements of the
plaintiffs cause of action. Id. Furthermore, in
order to satisfy federal pleading requirements, the plaintiff
must "provide the grounds of his entitlement to relief,
" which "requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of
action will not do." Phillips v. County of
Allegheny. 515 F.3d 224. 231 (3d Cir. 2008) (brackets
and quotations marks omitted) (quoting Twombly. 550
U.S. 544. 127S.Ct.at1964-65)
In considering a motion to dismiss, the court generally
relies on the complaint, attached exhibits, and matters of
public record. See Sands v. McCormick. 502 F.3d 263
(3d Cir. 2007). The court may also consider
"undisputedly authentic document[s] that a defendant
attaches as an exhibit to a motion to dismiss if the
plaintiffs claims are based on the [attached]
documents." Pension Benefit Guar. Corp. v. White
Consol. Indus.. 998 F.2d 1192.1196 (3d Cir. 1993).
Moreover, "documents whose contents are alleged in the
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered." Pryor v. Nat'l Collegiate Athletic
Ass'n. 288 F.3d 548. 560 (3d Cir. 2002) However, the
court may not rely on other parts of the record in
determining a motion to dismiss. See Jordan v. Fox.
Rothschild. O'Brien & Frankel. 20 F.3d 1250.
1261 (3d Cir. 1994)
the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g.,
Fletcher-Harlee Corp. v. Pote Concrete Contractors.
Inc.. 482 F.3d 247. 252 (3d Cir. 2007): Grayson v.
Mayview State Hosp.. 293 F.3d 103.108 (3d Cir. 2002)
Shane v. Fauver. 213 F.3d 113.116-17 (3d Cir. 2000).
"Dismissal without leave to amend is justified only on
the grounds of bad faith, undue delay, prejudice, or
futility." Alston v. Parker. 363 F.3d 229. 236
(3d Cir. 2004) B. Section 1983 The Borough and the
police chief are state actors for purpose of §1983.
See Burke v. Twp. of Cheltenham, 742 F.Supp.2d 660
(E.D.Pa. Oct. 2010).
state a claim under section 1983, a plaintiff must meet two
threshold requirements. He must allege: 1) that the alleged
misconduct was committed by a person acting under color of
state law; and 2) that as a result, he was deprived of
rights, privileges, or immunities secured by the Constitution
or laws of the United States. West v. Atkins. 487
U.S. 42 (1988): Parratt v. Taylor. 451 U.S. 527. 535
(1981) overruled in part on other grounds.
Daniels v. Williams. 474 U.S. 327. 330-331 (1986).
If a defendant fails to act under color of state law when
engaged in the alleged misconduct, a civil rights claim under
section 1983 fails as a matter of jurisdiction, Polk
Cnty. v. Dodson. 454 U.S. 312. 315 (1981). and there is
no need to determine whether a federal right has been
violated. Rendell-Baker v. Kohn. 457 U.S. 830. 838
defendant in a civil rights action must have personal
involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat
superior." Rode v. Dellarciprete. 845 F.2d
1195.1207-08 (3d Cir. 1988) See also Sutton v.
Rasheed. 323 F.3d 236. 249 (3d Cir. 2003)(citing
Rode). "Personal involvement can be shown
through allegations of personal direction or of actual
knowledge and acquiescence." Rode. 845 F.2d at
1207. Accord Robinson v. City of Pittsburgh. 120
F.3d 1286, 1293-96 (3d Cir. 1997): Baker v. Monroe
Twp.. 50 F.3d 1186. 1190-91 (3d Cir. 1995). As explained
A defendant in a civil rights action must have personal
involvement in the alleged wrongs. . . . [P]ersonal
involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.
Allegations of participation or actual knowledge and