Sealander v. Brague

          MEMORANDUM AND ORDER

          John E. Jones III United States District Judge

         Presently pending before this Court is a Motion to Dismiss Plaintiff's Second Amended Complaint filed by Defendant Martin Wade (“the Motion”). (Doc. 56). For the reasons that follow, we shall grant the Motion.

         I. FACTUAL BACKGROUND

         We take the following from the Plaintiff's Complaint and assume it to be true, as we must.

         The instant case alleges a variety of constitutional and state law claims against several Williamsport police officers, the City of Williamsport, Pennsylvania, and a Lycoming County Assistant District Attorney. These claims arise from an alleged altercation which took place in Williamsport on November 20, 2016 between private individuals, during which the Plaintiff was shot with a taser gun by a Williamsport Police Officer (“the November 20 incident”). Plaintiff was later charged with several criminal counts stemming from this encounter. He alleges violations of his civil rights connected with the incident. (Doc. 48).

         The instant Motion concerns claims Plaintiff brings against Defendant Martin Wade, an Assistant District Attorney for Lycoming County. Plaintiff alleges prosecutorial misconduct by Defendant Wade for decisions he made in prosecuting Plaintiff for the events of November 20. His claims include: violation of 42 U.S.C. §1983 for malicious prosecution (Count VIII); violation of state law for malicious prosecution (Count XI); and state law abuse of process (Count XII). The instant claims do not involve the facts of the November 20 incident. Therefore, and because Defendant Wade's involvement in the case began nearly two years after the Plaintiff's initial encounter with the Williamsport police, we need not go into further detail concerning the events of November 20. We will, however, recite Plaintiff's allegations regarding his criminal prosecution by Defendant Wade.

         Plaintiff was charged in a two-count criminal complaint with Disorderly Conduct in violation of 18 Pa. C.S. §5503(a)(1), as both a Misdemeanor of the Third Degree and as a Summary Offense. (Doc. 48 at ¶ 25). The third-degree misdemeanor carried a penalty of imprisonment of up to one year and a fine of $2, 500.00. Id. Plaintiff pleaded guilty to the Summary Offense and was ordered to pay a $25.00 fine and costs of $164.50. Id. at ¶ 26.

         After Plaintiff pleaded guilty, discovery revealed that one of the other individuals involved in the November 20 incident, Christopher Reed, was the cousin of Plaintiff's charging police officer, Officer Brague. Id. at ¶ 27. Officer Brague apparently concealed this fact during the criminal proceedings. Id. Reed was not criminally charged in relation to the November 20 incident. Id. at ¶ 23.

         Plaintiff proceeded to withdraw his guilty plea based upon this information. Id. at ¶ 27. On or about March 5, 2018, Plaintiff filed a Request for Permission to File an Appeal Nunc Pro Tunc for the Purpose of Filing a Petition to Withdraw his Guilty Plea in the Lycoming County Court of Common Pleas. Id. at ¶ 28. The Court granted that request on April 19, 2018, without prejudice to the right to re-file charges. Id. at ¶ 29. This Order was the result of an agreement between the Plaintiff and the Commonwealth. Id. Thereafter Defendant Wade became the prosecuting attorney on Plaintiff's criminal case. Id. at ¶ 83.

         Plaintiff alleges that Defendant Wade was hesitant to re-file the criminal charges based upon text messages he had learned of between Officer Brague and the alleged victim, his cousin Christopher Reed. Id. at ¶ 84. Nevertheless, Plaintiff claims, the Williamsport Police Department “applied pressure on Defendant Martin Wade to pursue the refiling of charges against Plaintiff. . .for the purpose of assisting the Williamsport Police Department to obtain leverage against Plaintiff Dana Sealander because of Sealander's pending civil rights lawsuit” against the City and Police Department. Id. at ¶ 85; 101. Defendant Wade eventually agreed to re-file the charges, but informed the Williamsport Police Department that Officer Brague would not be allowed to act as the prosecuting officer. Id. at ¶ 86. Officer Kitko was then approved to act in that capacity. Id. at ¶ 87.

         On May 2, 2018, Officer Kitko re-filed a criminal complaint against Plaintiff, charging him with Disorderly Conduct in violation of 18 Pa. C.S. §5503(a)(1) as Misdemeanor of the Third Degree; Disorderly Conduct in violation of 18 Pa. C.S. §5503(a)(1) as a Summary Offense; and Harassment in violation of 18 Pa. C.S. §2709(a)(1) as a Summary Offense. Id. at ¶ 30.

         Plaintiff claims that Defendant Wade had access to depositions taken in the instant civil action which Defendant Wade used in deciding to refile charges against Plaintiff, including the addition of a new Harassment charge. Id. at ¶ 88; 95. Those depositions were “purportedly. . . very clear in [Christopher] Reed's assertion that Plaintiff Dana Sealander did not shove Reed and that it was Reed who shoved Plaintiff Dana Sealander to the ground twice.” Id. at ¶ 95. Defendant Wade allegedly continued to pursue Plaintiff's conviction despite knowing that the depositions “were more than sufficient to apprise Defendant Wade of the fact that Plaintiff Dana Sealander did not commit a criminal act, but rather was the victim of an assault and battery at the hands of Christopher Reed, cousin to Defendant Ryan Brague.” Id. at ¶ 96-97.

         Plaintiff further alleges that Defendant Wade “did not share the transcript of depositions with [Officer] Kitko despite her status as the prosecuting officer.” Id. at ¶ 90. Instead, Defendant Wade allegedly instructed Officer Kitko as to what facts she should include in her Affidavit of Probable Cause, without giving her the opportunity to review the evidence herself. Id. at ¶ 88.

         On September 18, 2019 the Lycoming County Court of Common Pleas, upon motion by the Commonwealth, dismissed the charges of Disorderly Conduct in violation of 18 Pa. C.S. §5503(a)(1) as Misdemeanor of the Third Degree and Disorderly Conduct in violation of 18 Pa. C.S. §5503(a)(1) as a Summary Offense. Id. at ¶ 31. The Court also directed that a non-jury trial be scheduled for the remaining Harassment charge. Id. Plaintiff was found Not Guilty on the Harassment charge on November 1, 2018. Id. at ¶ 32.

         Plaintiff now brings the instant claims in his Second Amended Complaint, which newly named Defendant Wade as a party. Defendant Wade filed the instant Motion to Dismiss the claims against him for failure to state a claim for which relief can be granted on August 20, 2019. (Doc. 56). Defendant Wade filed a Brief in Support on September 3, 2019. (Doc. 57). On September 27, 2019, Plaintiff filed a Brief in Opposition. (Doc. 63). Defendant Wade failed to file a Reply by October 11, 2019, as is required by Local Rule 7.7. The Motion is therefore ripe for disposition.

         II. STANDARD OF ...