United States District Court, M.D. Pennsylvania
MARK A. KESSLER, Plaintiff,
BOROUGH OF FRACKVILLE, et al., Defendants.
Richard Caputo United States District Judge
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.
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 ¶¶
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).
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). Petrus nor Livergood interviewed
Kessler prior to the filing of that charge. (See id.
at ¶ 48).
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).
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 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).
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).
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.”
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.
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)).
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 ...