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Martucci v. Borough

United States District Court, M.D. Pennsylvania

April 5, 2018

GREGORY J. MARTUCCI, Plaintiff
v.
MILFORD BOROUGH, et al., Defendants

          MEMORANDUM

          MALACHY E. MANNION JUDGE

         Plaintiff 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.

         I. BACKGROUND [1]

         On 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.

         While 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.

         Soon 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 Congressional Ethics.

         Subsequently, 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.

         Plaintiff 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 against him.

         Thus, 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.

         On 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.

         Also, 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 police department.

         On 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.[2]

         On 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.

         As a 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.[3] 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.

         On 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[4] 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.

         Specifically, 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.

         As 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 costs.

         Pending 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.

         Also pending is the Rule 12(b)(6) motion of Ashmawy, (Doc. 18), which shall be addressed in a separate Memorandum.

         The 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.

         II. STANDARDS OF REVIEW

         A. Motion to Dismiss

         The 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)

         Generally, 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).

         To 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 (1982).

         "A 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 in Rode:

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 ...

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