TINGEY v. PENNSYLVANIA STATE PROBATION AND PAROLE BOARD

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARK TINGEY, CIVIL ACTION

Plaintiff,

v.

PROBATION OFFICER DAGE NO. 17-827

GARDNER, and

SUPERVISING PROBATION OFFICER

CAITLIN McLAUGHLIN,

Defendants.

DuBois, J. December 12, 2019

M E M O R A N D U M

I. INTRODUCTION

This is a suit arising under Pennsylvania state law and 42 U.S.C. § 1983.1 Plaintiff Mark

Tingey asserts claims against defendants, parole officer Dage Gardner and supervising parole

officer Caitlin McLaughlin, for false imprisonment, violations of “substantive due process,” and

supervisory liability. Presently before the Court is defendants’ Motion for Summary Judgment.

The Motion is granted because each of plaintiff’s claims against defendants fails as a matter of

law.

II. BACKGROUND

In 2011, while plaintiff was a student at Brigham Young University in Utah, he was

charged with ten counts of sexual exploitation of a minor for possessing child pornography.

1 Plaintiff does not state in the Amended Complaint under which statutory provisions or common law he

seeks to bring his claims. With respect to plaintiff’s state law claim in Count I, both parties rely exclusively on

Pennsylvania state law in their summary judgment briefs. The Court reads Count I as purporting to assert a claim

under Pennsylvania state law. Additionally, the Court reads Counts II-III as purporting to assert claims under 42

U.S.C § 1983 because the facts in support of Counts II and III of the Amended Complaint turn largely on the alleged

violation of plaintiff’s rights under the United States Constitution by state actors. See Kneipp by Cusack v. Tedder,

95 F.3d 1199, 1204 (3d Cir. 1996) (“In order to establish a section 1983 claim, a plaintiff must demonstrate a

violation of a right secured by the Constitution and the laws of the United States and that the alleged deprivation was

committed by a person acting under color of state law.”).

Defs.’ Statement Undisputed Facts ¶ 3 [hereinafter Defs.’ SUF]. He was convicted on eight

counts of sexual exploitation of a minor, Id. ¶ 4, and sentenced to 300 days in prison and a 36-

month probationary period, Id. ¶ 6. After serving his sentence, plaintiff started probation in Utah

on January 1, 2015. Am. Compl. ¶ 9. On January 13, 2015, plaintiff signed a Utah probation

agreement that included several conditions, under which, inter alia, he was prohibited from

possessing sexually stimulating or sexually exploitive material. Defs.’ SUF ¶ 9. That same

month, plaintiff sought to transfer his probation to Pennsylvania to be with his wife who was

then residing in Philadelphia. Id. ¶ 7. On January 21, 2015, plaintiff signed a transfer

agreement, in which plaintiff “agreed to comply with the [probation] terms and conditions

imposed by Utah and Pennsylvania.” Id. ¶ 8. Thereafter, plaintiff’s probation was transferred to

Philadelphia, where he met with his assigned parole officer, defendant Dage Gardner on

February 26, 2015. Id. ¶ 10. Gardner is a parole officer employed by the Pennsylvania Parole

and Probation Board. Defs.’ SUF ¶ 1. Defendant Caitlin McLaughlin is a supervisory parole

officer employed by the Pennsylvania Parole and Probation Board and was Gardner’s direct

supervisor. Id. ¶ 2.

On August 12, 2015, Gardner and other parole officers from the sex offender unit went to

plaintiff’s apartment to conduct a home visit. Defs.’ SUF ¶ 14. Defendants assert that one of the

other parole officers reviewed the browser history on plaintiff’s computer and saw “indications

of pornographic content.” Id. ¶ 15. Plaintiff disputes this fact. Plaintiff claims that “there was

no porn in Plaintiff’s spam folder or elsewhere on his computer.” Pl.’s Opp. Mot. Summ. J. at 2;

Pl.’s Statement Disputed Material Facts ¶1a-1b. Gardner requested that plaintiff report to the

parole office the next day. Id. ¶ 17. On August 13, 2015, plaintiff reported to the parole office

and was arrested for violating his parole by possessing sexually explicit material. Id. ¶ 18.

On August 20, 2015, plaintiff was presented with the “Notice of Charges and Hearing,”

which described the charges against him and “Offender Rights at Board Hearings,” which

described plaintiff’s rights at the various parole hearings involved in the parole violation process.

Defs.’ SUF ¶ 19. Plaintiff signed both documents. Id.; Defs.’ Mot. Summ. J. Ex. J. That same

day, plaintiff was presented with the “Waiver of Violation Hearing and Counsel/Admission

Form.” Defs.’ Mot. Summ. J. Ex. K. The form explained that plaintiff had the right to a

“preliminary hearing, a violation hearing, and the right to legal counsel.” Defs.’ SUF ¶ 21. The

form also explained that plaintiff “could withdraw his admission in writing within 10 days of the

admission date.” Id. ¶ 22. Plaintiff signed the form on August 20, 2015 and “knowingly,

voluntarily and willingly” admitted to the parole violation. Defs.’ Mot. Summ. J. Ex. K.

Plaintiff was then detained in the Kintock halfway house until October 22, 2015. Defs.’ SUF

¶ 24.

Plaintiff asserts that he was coerced into admitting he violated his parole and waiving his

rights to a preliminary hearing and a violation hearing. Pl.’s Response Defs.’ SUF ¶ 20.

Plaintiff testified at his deposition that Gardner threatened to incarcerate him at SCI Graterford,

where he would be subject to sexual and physical violence, if he did not sign the Waiver of

Violation Hearing and Counsel/Admission Form. Id. Plaintiff also testified that he asked for an

attorney, but McLaughlin informed him that “he was not entitled to an attorney.” Id.

Plaintiff filed the Complaint on February 22, 2017 (Document No. 1). On March 31,

2017, plaintiff filed an Amended Complaint against Gardner, McLaughlin, and six individual

members of the Pennsylvania Board of Probation and Parole (Edward Burke, Leslie Grey,

Michael Potteiger, Craig McKay, Jeffrey Imboden, and Michael Green [“Parole Board

defendants”]) (Document No. 4). All defendants were sued in their individual capacities. Am

Compl. ¶¶ 2, 3, 6. Plaintiff’s Amended Complaint contains three counts. Count I sets forth

claims for false arrest and false imprisonment,2 against all defendants, under state law. Am.

Compl. ¶¶ 39-42. Count II sets forth a claim for violation of plaintiff’s rights under the

“Substantive Due Process Clause of the Fourteenth Amendment” for false imprisonment against

all defendants. Id. ¶¶ 43-47. Count III sets forth claims for “supervisory liability” in violation of

the “Due Process Clause of the Fourteenth Amendment” against McLaughlin and each of the

individual Parole Board defendants. Id. ¶¶ 48-51.

The individual Parole Board defendants moved to dismiss the Amended Complaint.

(Document Nos. 13, 22, filed June 26, 2017 and September 12, 2017). By Memorandum and

Order dated November 9, 2017, the Court granted the Parole Board defendants motions and

dismissed plaintiff’s claims against the Parole Board defendants. On April 26, 2019, the

remaining defendants— Gardner and McLaughlin—moved for summary judgment (Document

No. 36). Plaintiff filed a response on June 3, 2019 (Document No. 39). Defendants filed a

Reply3 on June 17, 2019 (Document No. 42). The Motion is thus ripe for decision.

III. LEGAL STANDARD

The Court will grant a motion for summary judgment if “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is

material when it “might affect the outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Id.

2 For clarity, the Court will refer to plaintiff’s false arrest and false imprisonment claims simply as a claim

for false imprisonment. See Wallace v. Kato, 549 U.S. 384, 388-89 (2005) (explaining that “[f]alse arrest and false

imprisonment overlap; the former is a species of the latter.”).

3 Defendants erroneously titled their Reply a “Sur-Reply.”

The Court’s role at the summary judgment stage “is not . . . to weigh the evidence and

determine the truth of the matter but to determine whether . . . there is sufficient evidence

favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249. However,

the existence of a “mere scintilla” of evidence in support of the nonmoving party is insufficient.

Id. In making this determination, “the court is required to examine the evidence of record in the

light most favorable to the party opposing summary judgment[] and resolve all reasonable

inferences in that party’s favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). The party

opposing summary judgment must, however, identify evidence that supports each element on

which it has the burden of proof. Celotex Corp., 477 U.S. at 322.

IV. DISCUSSION

Defendants argue that the Court should grant summary judgment on Count I of the

Amended Complaint because it is barred by Pennsylvania’s sovereign immunity statute. With

respect to Count II, defendants assert that the Court should grant summary judgment on the

ground that plaintiff’s substantive due process claim is precluded as a matter of law by the

“more-specific-provision” rule. Finally, defendants claim that the Court should grant summary

judgment on Count III of the Amended Complaint in that a finding of supervisor liability is

precluded where there is no underlying constitutional violation. The Court will address each

argument in turn.

A. Count I: False Imprisonment Under State Law

Defendants argue that plaintiff’s state law claim for false imprisonment in Count I of the

Amended Complaint is barred by Pennsylvania’s sovereign immunity statute. Defs.’ Mot.

Summ. J. at 4. The Court agrees with defendants. As a threshold matter, plaintiff argues that

“this Court should construe the Plaintiff’s Amended Complaint as alleging a claim for False

Arrest/Imprisonment under both the Fourth Amendment and Pennsylvania Common law.” Pl.’s

Response 6-7. In this case, Count I of the Amended Complaint asserts that parole officer

Gardner and supervising parole officer McLaughlin were employees of the Pennsylvania State

Probation and Parole Board, who were acting within the scope of their employment when they

falsely imprisoned plaintiff “without probable cause . . . in violation of state law.” Am. Compl.

¶¶ 2, 3, 40. There is no reference to the Fourth Amendment in Count I of the Amended

Complaint. Id. ¶¶ 39-42. The Court will not construe Count I of the Amended Complaint as

asserting a claim under the Fourth Amendment because “a plaintiff cannot introduce new legal

theories or claims through an opposition to a motion for summary judgment.” Phillips v. SEPTA,

No. CV 16-0986, 2018 WL 827440, at *4 (E.D. Pa. Feb. 12, 2018); see also Bell v. City of

Philadelphia, 275 F. App’x 157, 160 (3d Cir. 2008) (“A plaintiff may not amend his complaint

through arguments in his brief in opposition to a motion for summary judgment.”); McLaud v.

Indus. Res., Inc., 715 F. App’x 115, 121 n.5 (3d Cir. 2017). Count I of the Amended Complaint

plainly states a claim for false imprisonment solely under state law. Am. Compl. ¶ 40. As such,

the Court must determine whether Count I is barred by Pennsylvania’s sovereign immunity

statute.

“Pennsylvania’s sovereign immunity statute shields the Commonwealth, its officials, and

its employees acting within the scope of their duties from suit.” Foster v. McLaughlin, 203 F.

Supp. 3d 483, 488 (E.D. Pa. 2016) (citing 1 Pa. Cons. Stat. § 2310). “Sovereign immunity’s

protection . . . applies regardless of whether Commonwealth employees are sued in their official

or individual capacities.” Deforte v. Borough of Worthington, 364 F. Supp. 3d 458, 486 (W.D.

Pa. 2019); see also Mitchell v. Luckenbill, 680 F. Supp. 2d 672, 682 (M.D. Pa. 2010) (“Even

where a plaintiff asks for monetary damages against a defendant in his individual capacities,

sovereign immunity applies.”). Pennsylvania has explicitly retained its sovereign immunity and

has not waived immunity for intentional torts or claims under the Pennsylvania Constitution

except in nine limited circumstances that are inapplicable in this case.4 42 Pa. Cons. Stat.

§ 8522(b); see also Hart v. Tarrant, No. 2:17-CV-05055-JDW, 2019 WL 5588823, at *4 (E.D.

Pa. Oct. 30, 2019) (noting that Pennsylvania’s sovereign immunity “shield[s] an employee of a

Commonwealth agency from the imposition of liability even for intentional torts”).

Pennsylvania’s sovereign immunity applies to employees of the Pennsylvania Parole and

Probation Board. Johnson v. City of Philadelphia, No. 13-CV-02963, 2013 WL 4014565, at *6

(E.D. Pa. Aug. 7, 2013) (“The [Pennsylvania] probation department is an arm of the state, and its

employees are state actors, making them subject to sovereign immunity.”).

Pennsylvania has not waived sovereign immunity for the tort of false imprisonment, see

42 Pa. Cons. Stat. § 8522(b), and the Amended Complaint states that Gardner and McLaughlin

were employees of the Pennsylvania State Probation and Parole Board, who were acting within

the scope of their employment at the time of the alleged harm, Am. Compl. ¶¶ 2, 3, 40.

Recognizing this, plaintiff concedes that “his Pennsylvania Common Law claim for False

Arrest/Imprisonment [Count I] is barred by the applicable provisions of the Pennsylvania

Sovereign Immunity Act.” Pl.’s Response at 7. Accordingly, the Court grants defendants’

Motion for Summary Judgment on plaintiff’s claim for false imprisonment under state law

(Amended Complaint Count I).

B. Count II: Substantive Due Process

Count II of the Amended Complaint asserts that defendants’ “decision to arrest and

4 The nine limited circumstances are: “(1) vehicle liability; (2) medical-professional liability; (3) care,

custody or control of personal property; (4) Commonwealth real estate, highway and sidewalks; (5) potholes and

other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard

activities; and (9) toxoids and vaccines. 42 Pa. Cons. Stat. § 8522(b).

incarcerate” plaintiff “was an arbitrary exercise of the powers of government under the

Substantive Due Process Clause of the Fourteenth Amendment.” Am Compl. ¶¶ 44-45.

Defendants argue that plaintiff’s substantive due process claim is precluded as a matter of law by

the “more-specific-provision” rule. Defs.’ Mot. Summ. J. at 14. Defendants are correct.

“Noting its ‘reluctan[ce] to expand the concept of substantive due process,’ the Supreme

Court has established the ‘more-specific-provision rule.’” Betts v. New Castle Youth Dev. Ctr.,

621 F.3d 249, 260 (3d Cir. 2010) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 843–44

(1998)). The rule states that “[w]here a particular Amendment provides an explicit textual

source of constitutional protection against a particular sort of government behavior, that

Amendment, not the more generalized notion of substantive due process, must be the guide for

analyzing these claims.” Cty. of Sacramento, 523 U.S. at 842 (quoting Albright v. Oliver, 510

U.S. 266, 273 (1994)); see also Berg v. Cnty. of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000)

(“[W]hen government behavior is governed by a specific constitutional amendment, due process

analysis is inappropriate.”).

In this case, the Fourth Amendment provides the explicit source of constitutional

protection. Plaintiff asserts in Count II of the Amended Complaint that defendants “decision to

arrest and incarcerate” him was “without any reasonable justification.” Am. Compl. ¶ 45. This

claim sounds in the Fourth Amendment’s proscription against unreasonable searches and

seizures. See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (“An arrest, of course, qualifies as a

‘seizure’ of a ‘person’ under [the Fourth Amendment].”). Thus, the “more specific provision”

rule applies. See Moyer v. Borough of N. Wales, No. CIV. A. 00-CV-1092, 2000 WL 1665132,

at *3 (E.D. Pa. Nov. 7, 2000) (“Substantive due process does not support a claim for . . . false

arrest.”); Greenberg v. Caesars Entm’t Corp., No. CIV.A. 14-4796, 2015 WL 437577, at *3

(E.D. Pa. Feb. 2, 2015) (“The substantive due process clause of the Fourteenth Amendment is

not an appropriate source for wrongful seizure claims or false arrest claims.”); see also

Washington v. Hanshaw, 552 F. App’x 169, 172–73 (3d Cir. 2014) (“[T]o the extent [plaintiff’s]

substantive due process claim is predicated on damages resulting from an unconstitutional

seizure, that claim is clearly foreclosed by Albright [v. Oliver, 510 U.S. 266 (1994)].”).

Accordingly, to the extent that Count II of the Amended Complaint asserts a claim for false

imprisonment under the substantive due process clause of the Fourteen Amendment, that claim

fails as a matter of law.5

Even if the Court were to analyze Count II of the Amended Complaint under the Fourth

Amendment through 42 U.S.C. § 1983, plaintiff’s claim for false imprisonment would still fail

by operation of the favorable termination rule. See Heck v. Humphrey, 512 U.S. 477, 485

(1994). The rule states that, “[n]o cause of action exists under § 1983 for ‘harm caused by

actions whose unlawfulness would render a conviction or sentence invalid’ or would ‘necessarily

imply the invalidity of’ the conviction, unless the conviction or sentence has been reversed,

vacated, expunged, or otherwise favorably terminated.” Ortiz v. New Jersey State Police, 747 F.

App’x 73, 77 (3d Cir. 2018) (quoting Heck, 512 U.S. at 486-87). The favorable termination rule

applies to claims against probation and parole officers related to revocation of parole. Williams

v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006).

Plaintiff’s false imprisonment claim is barred by the favorable termination rule because

there has not been a favorable termination of his parole revocation and success on his false

imprisonment claim would necessarily imply the invalidity of the revocation of plaintiff’s parole.

5 The Court will not address plaintiff’s argument that defendants violated his procedural due process rights under

the Fourteenth Amendment because Count II of the Amended Complaint only asserts a claim under the substantive due

process clause of the Fourteenth Amendment. See Am. Compl. ¶ 44 (asserting a claim “under the Substantive Due

Process Clause of the Fourteenth Amendment”). Plaintiff must stand on his Amended Complaint. See McLaud v. Indus.

Res., Inc., 715 F. App’x 115, 121 n.5 (3d Cir. 2017); Bell, 275 F. App’x at 160 (3d Cir. 2008).

Williams, 453 F.3d at 177 (affirming dismissal of former prisoner’s § 1983 claim challenging the

legality of his arrest and parole revocation “because success on the § 1983 claim would

necessarily demonstrate the invalidity of the Parole Board’s decision” and was thus barred by

Heck); Johnson v. Mondrosch, 586 F. App’x 871, 873 (3d Cir. 2014) (affirming dismissal under

Heck of parolee’s § 1983 claims challenging parole revocation because “[t]o grant [plaintiff’s]

requested relief would necessarily invalidate the Parole Board’s decision to revoke his parole”).

The Third Circuit has made clear that “[c]laims for malicious prosecution or false imprisonment

arising from the prosecution, arrest, and imprisonment that led to a plaintiff’s conviction are

clear examples of Heck-barred claims, because success on those claims requires showing

unlawful prosecution or imprisonment.” Ortiz, 747 F. App’x at 77.

Plaintiff, however, argues that his “claim that Gardner coerced and threatened [him] into

signing the waivers, thereby establishing probable cause for the [parole] violation, is not covered

by Heck,” because the Supreme Court “recognized that one of the exceptions to the favorable

termination rule was where the probable cause was based on ‘fraud, perjury, or mistake of law.’”

Pl.’s Response at 16. Plaintiff’s argument fails. The Third Circuit has stated that a plaintiff may

not attack his guilty plea that allegedly resulted from “fraud, perjury, or other corrupt means” in

a § 1983 case “rather than on direct appeal or via a habeas petition.” Fields v. City of Pittsburgh,

714 F. App’x 137, 141 n.3 (3d Cir. 2017). In Fields, the Third Circuit explained that:

The “fraud, perjury or other corrupt means” language comes from the

Restatement (Second) of Torts, which sets out the rule that a conviction, even if

reversed, “conclusively establishes the existence of probable cause, unless the

conviction was obtained by fraud, perjury or other corrupt means.” There is no

basis upon which to rely on this language to assert that a guilty plea that has not

been reversed on appeal can be undermined in a collateral civil action by making

such allegations.

Id. (emphasis in original) (internal citations omitted).

In this case, plaintiff “knowingly, voluntarily and willingly” admitted to the parole

violation at issue and waived his rights to a preliminary hearing and a violation hearing “without

any promise, threat, or coercion.” Defs.’ Mot. Summ. J. Ex. K. Plaintiff’s admission operates

like a guilty plea. Accordingly, if plaintiff’s admission was obtained fraudulently, then the

proper vehicle for plaintiff to challenge his coerced admission and waiver of his rights was a

direct appeal or a habeas petition—not a § 1983 claim for false imprisonment. Fields, 714 F.

App’x at 141 n.3. The Court therefore concludes that Count II of the Amended Complaint fails

as a matter of law even when analyzed under the Fourth Amendment because it is barred by the

favorable termination rule.

Because plaintiff’s false imprisonment claim in Count II fails as a matter of law under

either the Fourteenth Amendment ot the Fourth Amendment, the Court grants defendants’

Motion for Summary Judgment on Count II of the Amended Complaint.

C. Count III: Supervisory Liability—Defendant McLaughlin

Count III of the Amended Complaint asserts, inter alia, that McLaughlin “was personally

involved in the decision to illegally detain the Plaintiff in Kintock,” and therefore she is subject

to supervisor liability. Am. Compl. ¶ 48-49. Defendants argue that Count III of the Amended

Complaint fails because there is no underlying constitutional violation, and since there is no

underlying constitutional violation, there can be no supervisor liability. Defs.’ Mot. Summ. J. at

16. Defendants are correct.

“[G]overnment officials may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.” Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir.

2012); accord Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Two theories, however, allow a

supervisory official to be held liable for his or her own conduct. A.M. ex rel. J.M.K. v. Luzerne

Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3rd Cir. 2004). First, a supervisory official may be

liable where she, “with deliberate indifference to the consequences, established and maintained a

policy, practice or custom which directly caused [the] constitutional harm.” A.M., 372 F.3d at

586 (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d

Cir. 1989)). In seeking to impose liability on a policymaker, a plaintiff must “identify a

municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of the Cty. Comm’rs v.

Brown, 520 U.S. 397, 403 (1997). Second, an official may be held liable for “supervisory

liability” where “she participated in violating the plaintiff’s rights, directed others to violate

them, or, as the person in charge, had knowledge of and acquiesced in [her] subordinates’

violations.” A.M., 372 F.3d at 586.

Under both theories, there must be a constitutional harm for there to be a claim for

supervisor liability. See A.M., 372 F.3d at 586. Because, as discussed supra, Counts I and II of

the Amended Complaint fail as a matter of law, there can be no claim for supervisor liability

against McLaughlin. See Dempsey v. Bucknell Univ., 76 F. Supp. 3d 565, 579 (M.D. Pa. 2015)

(granting summary judgment for defendants on supervisor liability claim “[b]ecause this Court

has already held that [plaintiff’s] claims for false arrest and malicious prosecution fail as a matter

of law, by logical extension, there was no constitutional violation and there can be no

supervisory liability.”), aff’d, 834 F.3d 457 (3d Cir. 2016). Accordingly, with respect to Count

III of the Amended Complaint, the Court grants defendants’ Motion for Summary Judgment.

V. CONCLUSION

For the foregoing reasons, the Court grants Defendants’ [sic] Dage Gardner and Caitlin

McLaughlin[’s] Motion for Summary Judgment. There are no claims remaining in the case.

An appropriate order follows.