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Kessler v. Borough of Frackville

United States District Court, M.D. Pennsylvania

May 8, 2018

MARK A. KESSLER, Plaintiff,
v.
BOROUGH OF FRACKVILLE, et al., Defendants.

          MEMORANDUM

          A. Richard Caputo United States District Judge

         Presently before me is the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 14) filed by Defendants Borough of Frackville (the “Borough”), Phillip Petrus (“Petrus”), Marvin Livergood (“Livergood”), and William Creasy (“Creasy”) (collectively, where appropriate, “Defendants”). Plaintiff Mark Kessler (“Kessler” or “Plaintiff”) commenced this action under 42 U.S.C. § 1983 and state law after a jury found him not guilty in state court of harassment in violation of 18 Pa. C.S.A. § 2709(a)(4). Based on the state court prosecution, Kessler contends that Defendants deprived him of his constitutional rights by, inter alia, falsely arresting him, maliciously prosecuting him, and destroying/fabricating evidence. Defendants have moved to dismiss Kessler's § 1983 claims for failure to state a claim upon which relief can be granted. Because Kessler pleads plausible Fourth and Fourteenth Amendment claims and it is not clear from the face of the Amended Complaint that individual Defendants are entitled to qualified immunity, the motion to dismiss will be denied.

         I. Background

         The facts as alleged in the Amended Complaint are as follows:

On or about August 19, 2015, Creasy, an elected Borough Councilman, verbally harassed and berated Kessler in front of his minor daughter at a grocery store in the Borough. (See Doc. 12, ¶ 33). Kessler believed that Creasy was also harassing his daughter on the internet and making obscene comments about her. (See id. at ¶ 34). After Kessler responded and defended himself, Creasy became more irate. (See id. at ¶¶ 35-37).

         After the incident at the grocery store, Creasy had a meeting with Livergood, a police officer and acting Chief of Police, at the Borough police station. (See id. at ¶ 41). Livergood also had previous conflicts with Kessler. (See id. at ¶ 42). As a result, Creasy and Livergood approached Petrus, also a police officer, about filing a charge against Kessler. (See id. at ¶ 43). Although Petrus knew the charge was false and greatly exaggerated, Petrus filed the charge against Kessler out of loyalty to Creasy and Livergood and fear that he would lose his job. (See id. at ¶ 44).

         A charge was filed against Kessler on December 8, 2015 for a violation of 18 Pa. C.S.A. § 2709(a)(4). (See id. at ¶ 47).[1] Petrus nor Livergood interviewed Kessler prior to the filing of that charge. (See id. at ¶ 48).

         Video surveillance of the incident was retrieved by Petrus and provided to Livergood. (See id. at ¶ 53). That video confirmed that Creasy lied about the events that took place at the grocery store. (See id. at ¶ 55). Although Petrus and Livergood claimed that the video surveillance footage was given to the District Attorney's office, that office denied having any record or knowledge of receiving such footage. (See id. at ¶ 54). Rather, the footage was destroyed by Livergood and/or Petrus. (See id. at ¶¶ 56-58). To assist with the prosecution of Kessler, Petrus and Livergood contacted then-District Attorney Christine Holman, who based on “an unfair and misleading rendition of the facts” was “duped” into “authoriz[ing] the filing of criminal charges against Plaintiff.” (Id. at ¶¶ 71-72). The District Attorney was falsely told that Kessler shoved, bumped and had offensive contact with Creasy and that Kessler made threats towards Creasy. (See id. at ¶ 73).

         Kessler subsequently received a Summons and he surrendered before a district justice “against his will out of threat of a bench warrant being issued for his physical arrest and being taken into custody.” (Id. at ¶ 98). When he surrendered, Kessler submitted to fingerprinting and photographing against his will and he was temporarily confined in the law enforcement office until he was processed. (See id. at ¶ 99). Kessler was not free to leave during this time. (See id. at ¶ 100). Bail was set[2] and restrictions were placed on Kessler, including that he appear at court proceedings under the threat of a warrant being issued if he did not appear. (See id. at ¶ 102). While the charge was pending, Kessler was not free to leave the jurisdiction or move out of state. (See id. at ¶ 105).

         Kessler pled not guilty to the charge. (See id. at ¶ 108). The matter proceeded to a jury trial in August 2016. (See id. at ¶ 109). On August 24, 2016, the jury returned a unanimous not guilty verdict. (See id. at ¶ 110).

         In view of the foregoing, Kessler commenced this action on December 5, 2017 against the Borough, Petrus, Livergood, and Creasy. (See Doc. 1, generally). Kessler filed an Amended Complaint on January 23, 2018. (See Doc. 12, generally). Therein, Kessler asserts claims against Petrus, Livergood, Creasy, and the Borough for the violation of his rights under the Fourth, Fifth, and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985. (See id.). Kessler also raises state law claims for “false arrest/false imprisonment, intentional and negligent infliction of emotional distress, and abuse of process/malicious prosecution.” (Id.).

         Defendants moved to dismiss the Amended Complaint on February 5, 2018. (See Doc. 14, generally). That motion has now been fully briefed and is ripe for disposition.

         II. Legal Standard

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). “Under the ‘notice pleading' standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with ‘a short and plain statement of the claim showing that the pleader is entitled to relief.'” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014) (quoting Fed.R.Civ.P. 8(a)(2)).

         When resolving a Rule 12(b)(6) motion, “a court must consider no more than whether the complaint establishes ‘enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements' of the cause of action.” Trzaska v. L'Oreal USA, Inc., 865 F.3d 155, 162 (3d Cir. 2017) (quoting Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016)). In reviewing the sufficiency of a complaint, a court must take three steps: (1) identify the elements of the claim; (2) identify conclusions that are not entitled to the assumption of truth; and (3) assume the veracity of the well-pleaded factual allegations and determine whether they plausibly give rise to an entitlement to relief. See Connelly, 809 F.3d at 787 (citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ...


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