# HOWARD v. CITY OF PHILADELPHIA POLICE DEPARTMENT

> District Court, E.D. Pennsylvania · June 6, 2022

URL: https://www.frixlaw.com/law-library/cases/10403435

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** June 6, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10403435

## How later opinions describe it (automated extraction)

- clarifying that fabrication of evidence can constitute a stand-alone claim
- noting that the issue of qualified immunity was not reached by District Court because it granted summary judgment on the merits and declining to decide the issue of qualified immunity as to the defendants for whom it affirmed summary judgment

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LESTER HOWARD, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 19-2288
:
CITY OF PHILADELPHIA POLICE :
DEPARTMENT, et al., :
Defendants. :

McHUGH, J. June 6, 2022
MEMORANDUM
This is an action in which pro se Plaintiff alleges that Defendants violated his constitutional
rights in events taking place around two arrests, as well as the prosecution that followed one of the
arrests. Specifically, Plaintiff asserts the following claims: violation of his Fourth Amendment
right to be free from excessive force; a Brady claim under the Fourteenth Amendment; a violation
of substantive due process; federal conspiracy; together with state law claims of assault and
battery, civil conspiracy, intentional infliction of emotional distress, spoliation, and abuse of
process. Defendants move for summary judgment as to all claims except those involving excessive
force, which I will grant.
I. Factual Allegations and Procedural Posture:
Plaintiff Lester Howard’s Complaint alleges constitutional violations related to a series of
interactions with Philadelphia police officers. First, on July 3, 2017, Plaintiff alleges that Officer
Marvis Knight and his partner, John Doe #1, approached him to investigate a report of a male
throwing trash. Compl. at 2, ECF 2. Plaintiff states that after telling the officers that he was upset
because some children had stolen his bike, the officers slammed him on their vehicle and dragged
him on the ground, injuring his left knee and head. Id. Plaintiff was arrested and taken to the
police station, but later let go “as a result of his subsequent injuries.” Id. at 2-3. He alleges that
he was cited for disorderly conduct and that Officer Knight lied in the citation by stating that
Plaintiff was released at the scene, when he was actually arrested and taken to the station. Id. at

3. Plaintiff reports that he spent three days recovering in the hospital following the officers’ use
of force against him and that he now walks with a limp due to those injuries. Id. While at the
hospital, Plaintiff called the police and reported the incident. Id. Subsequently, the police
interviewed him and stated that his complaint would be investigated. Id. Several days later,
Officer Knight’s partner, John Doe Officer, approached Plaintiff to ask him why he had put in a
complaint. Id. at 4.
Plaintiff raises several claims related to the events of July 3rd and 4th. First, he asserts
claims of excessive use of force and falsifying police paperwork. Id. at 3. Plaintiff also states that
there is missing surveillance video from July 3rd and 4th that would have shown this assault.1 Id.
at 4. He also states that his July complaint and the resulting investigation caused the officers to be

biased against him. He alleges this is relevant to the remainder of his claims, which stem from his
arrest a month later in August 2017. Id.
On August 27, 2017, Plaintiff’s neighbor, Vincent Leonardo, called the police around 2
a.m. to report a burglary in progress. Compl. at 5; Police Report, ECF 29-4, Ex. B-1. Officer
Knight responded to the call. Compl. at 5. Leonardo stated that he had seen a male enter a property
under construction located at 504 Mercy Street. Police Report, ECF 29-4, Ex. B-1; Leonardo
Interview, ECF 29-6, Ex. B-3; Arrest Memo, ECF 29-8, Ex. B-5. Officer Knight reports that he
went to the rear of the property and saw Plaintiff attempting to hide against a wall. Police Report,

1 The alleged source of this first surveillance video is not clearly pleaded.
ECF 29-4, Ex. B-1. Plaintiff tried to flee and was stopped at 5th and Snyder Streets. Id. Plaintiff
alleges that “out of view of the surveillance camera he was beaten by Officer Knight with an asp
striking Plaintiff in the head, shoulders, arms, and legs.” Compl. at 5. At that point, he was
“handcuffed and thrown into Officer Knight’s vehicle.” Id. Plaintiff told another officer, John

Doe Sgt. #2, that he had been beaten by Knight and needed medical attention and told John Doe
Sgt. #2 to look at and preserve the surveillance video. Id. Officer Knight called the owner of the
504 Mercy Street, who told them that no one had permission to enter the residence. Police Report,
ECF 29-4, Ex. B-1.
It is undisputed that Plaintiff was then transported to a detention unit, but the parties dispute
what occurred during transport. Plaintiff alleges that when he was being transported in Officers
Knight and Marrero’s patrol car, hands cuffed behind his back, Marrero “struck [him] in the face
with a closed fist.”2 Compl. at 6. He alleges that the video of this transport is missing. Id. In
contrast, Officer Marerro maintains that during transport, Plaintiff began to kick at the rear door
and window of the car. Police Reports, ECF 29-4, Ex. B-1 and ECF 29-7, Ex. B-4. Marrero states

that he kept the door slightly open to avoid Plaintiff breaking the window while waiting for an
emergency patrol wagon. Id. Plaintiff eventually kicked the door fully open, at which point
Marerro tried to shut it, injuring Marrero’s hand in the process. Id.
Around 3 a.m. on August 27, Mr. Leonardo gave a statement to Detective Kevin Duffy
describing the incident and signed a photograph of Plaintiff identifying him as the person who he

2 Officer Marrero’s involvement up to this point is not clear from the record. Plaintiff states that he was
transported in Officer Knight and Marrero’s patrol car, but earlier refers to another officer at the scene as
John Doe Sgt. #2. The only police personnel listed in the investigation and arrest report are Knight,
Marrero, and Duffy. Officers Knight and Marrero are listed as witnesses. Exs. B-1, B-2. There is a signed
affidavit from Detective Duffy stating that he “was not on location at the scene when Mr. Howard was
apprehended by Officer Marvis Knight.” Ex. B. Detective Duffy avers that, as the lead investigator, he
prepared the 75-49 Investigation Report (Ex. B-1) and the arrest report (Ex. B-2), as well as interviewed
Mr. Leonardo at the station. Id.
had observed entering the residence. Leonardo Interview, ECF 29-6, Ex. B-3. Mr. Leonardo also
explained that he had seen Plaintiff enter the property on previous occasions on August 25th and
26th. Id.
Plaintiff was subsequently charged by the Philadelphia District Attorney’s Office with

burglary, criminal trespass, and resisting arrest. CP Docket, ECF 29-12, Ex. D. A preliminary
hearing was held on September 12, 2017, at which time Mr. Leonardo testified that had seen
Plaintiff entering the house through surveillance video feed from a camera that he had set up on
his property. Preliminary Hearing Transcript, ECF 29-11 at 9:2-24. Defense counsel moved to
preserve this footage of the incident at the preliminary hearing, which the Court granted. Id. at
9:7-8. Plaintiff was ultimately held for court on the charges of burglary and criminal trespass. Id.
at 6:12. Plaintiff states the he was detained pretrial for over three months. Compl. at 13. The
charges against him were nolle prossed on November 26, 2018. CP Docket, ECF 29-12, Ex. D.
Plaintiff further alleges that the Defendants conspired to deprive him of his due process
rights by “suppressing and destroying in bad faith evidence that would have affected the decision

to prosecute Plaintiff for criminal charges related to the incidents.” Compl. at 7. He states that
police coached Leonardo into identifying Plaintiff and that the police reports were doctored and
falsified. Id. He states that Marrero, Knight, and Leonardo conspired together to suppress
evidence and conceal falsehoods. Id. He further alleges that the prosecution team failed to produce
favorable evidence and destroyed exculpatory evidence by erasing the video footage from July 3,
July 4, August 25, and August 26. Id. He also claims that defendants altered or edited surveillance
footage, which amounts to spoliation and tampering, as it “could have included potentially
exculpatory evidence or at the very least show, evidence that proves or disproves whether officer
Marerro had a conversation with Plaintiff and punched him in the jaw in the back of Marrero’s
cruiser.” Id. at 8.
The City of Philadelphia Police Department, Detective Kevin Duffy, Police Officers
Ne’keea Halsey, Mavis Knight, and Lee Marerro filed a partial motion for summary judgment,

requesting dismissal of all claims against them except the excessive force, assault and battery
claims against Officers Knight and Marrero.3 Plaintiff’s deadline to file any response in opposition
having expired without Plaintiff submitting any response, the motion is ripe for my consideration.
II. Standard of Review
The party’s motion for summary judgment is governed by the well-established standard for
summary judgment set forth in Fed. R. Civ. P. 56(a), as amplified by Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986).
Plaintiff is pro se, so is held to a less stringent standard than trained counsel. Giles v.
Kearney, 571 F.3d 318, 322 (3d Cir. 2009). Although pro se pleadings and filings must be
“construed liberally,” the same summary judgment standard applies to pro se litigants. See

Renchenski v. Williams, 622 F.3d 315, 337 (3d Cir. 2010).
Although Defendants’ Motion is unopposed because Plaintiff has not filed any response, a
plaintiff’s failure to respond “is not alone a sufficient basis for the entry of a summary judgment.”
Anchorage Assocs. v. V. I. Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). Rather, the Court
“still must find for itself that there is no genuine dispute of material fact and that the movant
deserves judgment as a matter of law.” United States v. Brace, 1 F.4th 137, 143 (3d Cir. 2021)
(citing Fed. R. Civ. P. 56(a) and Anchorage Assocs., 922 F.2d at 175).

3 All charges against Mr. Leonardo were previously dismissed, per my Order docketed at ECF 11.
III. Discussion
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Here, even construing the record in the light most favorable to Plaintiff and taking into
account his pro se status, there is no dispute as to material facts such that a reasonable juror could
find for Plaintiff as to the claims challenged in Defendants’ partial motion for summary judgment,
so Defendants’ motion will be granted.4
a. Claims Against the Philadelphia Police Department Are Dismissed

Plaintiff names the City of Philadelphia Police Department as a Defendant here. Following
the decision in Monell v. Dept. of Social Servs., 436 U.S. 658, 694 (1978), courts within this district
have concluded that although a municipality may be liable under § 1983, a police department, as
a mere sub-unit of the municipality, may not. See e.g., DeBellis v. Kulp, 166 F. Supp. 2d 255, 264
(E.D. Pa. 2001); Irving v. Borough of Darby, 937 F. Supp. 446, 450 (E.D. Pa. 1996). See also
Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n. 4 (3d Cir. 1997) (“As in past cases, we treat
the municipality and its police department as a single entity for purposes of section 1983 liability”).
Accordingly, the City of Philadelphia Police Department is not a proper Defendant in this case
under Section 1983 and all claims against it will be dismissed with prejudice.

4 Defendants have also raised a defense of qualified immunity, arguing that Defendants are entitled to
qualified immunity because Plaintiff cannot establish on the record evidence that they violated any of the
federal statutory or constitutional rights for which he brought suit. As I grant summary judgment on the
merits, I need not decide the issue of qualified immunity. See Beers-Capitol v. Whetzel, 256 F.3d 120, 126
n. 1 (3d Cir. 2001) (noting that the issue of qualified immunity was not reached by District Court because
it granted summary judgment on the merits and declining to decide the issue of qualified immunity as to
the defendants for whom it affirmed summary judgment).
Even if I construe the claim as one against the City itself, Plaintiff still has not stated a
claim under Monell. “[A] § 1983 claim against a municipality may proceed in two ways. A
plaintiff may put forth that an unconstitutional policy or custom of the municipality led to his or
her injuries or that they were caused by a failure or inadequacy by the municipality that ‘reflects a

deliberate or conscious choice.’” Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (internal
citations omitted); see also Monell, 436 U.S. at 690–91. Under the first theory, the plaintiff “must
identify [the] custom or policy, and specify what exactly that custom or policy was” to satisfy the
pleading standard. McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009). Under the second
theory, the plaintiff must show that the failure to train or supervise “amounts to ‘deliberate
indifference’ to the rights of persons with whom [the municipality’s] employees will come into
contact,” Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014), which is usually
accomplished by showing a pattern of violations by untrained employees. Plaintiff has not alleged
any municipal custom or policy that led to the violation of his constitutional rights, nor has he
pleaded facts to support an inference of deliberate indifference. Thus, Mr. Howard has failed to

plead any basis for municipal liability.
b. All Counts Against Officer Ne’Keea Halsey Are Dismissed Due to Lack of Personal
Involvement

Plaintiff’s claims against Officer Halsey fail as a matter of law because, although the officer
is named in the case caption as a Defendant, Plaintiff lodges no specific allegations against Officer
Halsey. “A defendant in a civil rights action must have personal involvement in the alleged
wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). While personal involvement
can be shown through allegations of personal direction or of actual knowledge and acquiescence,
such allegations must be made with appropriate particularity. See id. Here, there is no record
evidence relating to the officer’s involvement in the complained of violations, so the claims against
Officer Halsey will be dismissed with prejudice. See also Officer Halsey’s Affidavit (stating that
the Officer “had no personal involvement in any of the incidents or events alleged in the plaintiff’s
complaint.”). ECF 29-2, Ex. A ¶ 7.
c. Plaintiff’s Brady Claim Is Not Supported by Evidence in the Record

“Under Brady v. Maryland, the prosecution’s suppression of evidence favorable to a
criminal defendant violates due process when the evidence is material to guilt or punishment. To
establish a Brady violation, it must be shown that (1) evidence was suppressed; (2) the evidence
was favorable to the defense; and (3) the evidence was material to guilt or punishment.” United
States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006) (citing Brady v. Maryland, 373 U.S. 83, 87
(1963). Brady “reaches beyond evidence in the prosecutor’s actual possession” to evidence that
“the prosecutor knew or should have known” about. Id. (quoting United States v. Joseph, 996 F.2d
36, 39 (3d Cir.1993)). Significantly for this case, the undisclosed evidence must be material for
purposes of the inquiry.
Here, Plaintiff contends that there is missing, exculpatory video surveillance from 500
Mercy Street from July 3rd and 4th that would show that Officer Knight assaulted Plaintiff. Plaintiff

also states that only a portion of the video from August 25 and 27 was provided and that the video
provided in discovery showed the Plaintiff entered the property through a “wide open front door”
and then he “locked the door behind him once inside.” Compl., ECF 2, Ex. A at ¶ 12.5 He also
argues that the “video time-line [was] out of sync with the chain of events.” Compl. at 9.

5 Attached to the Complaint as Exhibit A is a counseled Motion to Dismiss filed in Plaintiff’s underlying
burglary case on the grounds that the failure to produce or preserve the surveillance video from all relevant
dates after the judge had ordered it to be preserved constitutes a Brady violation. The Motion does not
include allegations of tampering.
First, the record is absent of any facts tending to establish the Defendants failed to disclose
or concealed exculpatory evidence. Plaintiff’s Complaint contains sweeping, conclusory
allegations of tampering without pleading any facts to support the allegations. At the summary
judgment stage, the Court need not accept conclusory allegations as true. Schoch v. First Fidelity

Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). In addition, although Mr. Howard’s defense
counsel in the underlying case moved to preserve the footage at the preliminary hearing, the
surrounding context indicates that the footage in question was limited to what Mr. Leonardo
observed on August 27th, with no suggestion that the request for preservation also encompassed
potential recordings of the events of July 3rd, 4th, or August 26th.
And even if Plaintiff had a factual basis for a Brady claim, it would still fail because he has
failed to meet Brady’s materiality requirement. Evidence “is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” Smith v. Holtz, 210 F.3d 186, 197 (3d Cir. 2000) (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)). Here, the charges against Plaintiff were dismissed,6 so

disclosure of any potentially exculpatory material would not have resulted in a different or more
favorable outcome. Given the dismissal, any failure to disclose evidence did not amount to a due
process violation.
d. There is Insufficient Evidence to Support Plaintiff’s Substantive Due Process Claim

Seemingly related to his Brady claim, Plaintiff also states that Defendants “violated his
substantive due process rights by doctoring and alter[ing] scientific evidence, which led to his

6 Specifically, the Commonwealth requested that the charges be nolle prosequi, which “is a voluntary
withdrawal by the prosecuting attorney of present proceedings on a particular bill of indictment.”
Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174, 177 (1976).
three months incarceration.” Compl. at 9.7 As a threshold issue, this claim is too vague and
ambiguous to be actionable. See Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011).
Assuming this to be a Fourteenth Amendment claim predicated on the fabrication of evidence, the
record offers nothing more than conclusory allegations of tampering and does not reflect genuine

dispute as to material fact regarding the actions of the police to alter evidence. See Halsey v.
Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014) (clarifying that fabrication of evidence can constitute a
stand-alone claim). More fundamentally, a fabrication of evidence claim under § 1983 is available
as a stand-alone claim only when “a defendant has been convicted at a trial at which the
prosecution has used fabricated evidence” with “a reasonable likelihood that, without the use of
that evidence, the defendant would not have been convicted.” Id. at 294. As noted above, Plaintiff
was not convicted here. Summary judgment as to this claim is therefore appropriate.
e. There is Insufficient Evidence to Support Plaintiff’s “Federal Deliberate Indifference”
Claim

Plaintiff asserts a claim for what he terms “federal deliberate indifference” in violation of
§ 1983. This claim is totally lacking in clarity and not clearly connected to the factual allegations.
See Brightwell, 637 F.3d at 194. If I construe Mr. Howard to be alleging deliberate indifference
to medical needs in violation of the Fourteenth Amendment, the claim still fails. see Natale v.
Camden Cty. Corr. Facility, 318 F.3d 575, 581–82 (3d Cir. 2003) (denial of medical care claims
brought by pretrial detainees arise under Fourteenth Amendment). The Third Circuit has
recognized that “pretrial detainees are entitled to at least as much protection as convicted prisoners
and that decisions interpreting the Eighth Amendment serve as useful analogies” for analyzing

7 Defendants do not specifically address this claim in this motion, but move for summary judgment as to
“all claims” “with the sole exception” of the excessive force and assault and battery claims against Officers
Knight and Marerro. The claim is only listed as “substantive due process” in the list of claims at the start
of the Complaint and referenced obliquely and vaguely in a small portion of the Complaint.
suits alleging that a pretrial detainee received inadequate medical care. Boring v. Kozakiewicz,
833 F.2d 468, 472 (3d Cir. 1987) (internal citation omitted); see also Natale, 318 F.3d at 581
(noting that in the past the Court has “found no reason to apply a different standard than that [for
prisoners’ claims of inadequate medical care under the Eighth Amendment] when evaluating

whether a claim for inadequate medical care by a pre-trial detainee is sufficient under the
Fourteenth Amendment.”). To establish an Eighth Amendment claim for inadequate medical care
under § 1983a plaintiff must make (1) a subjective showing that the defendants were deliberately
indifferent to [his or her] medical needs and (2) an objective showing that those needs were
serious.” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (cleaned up). Here,
Plaintiff has not alleged that Defendants denied him medical care.8 In July, while Mr. Howard
alleges that he was injured, he states that he was hospitalized and received treatment. In August,
he states that he told the officers that he needed medical care, but he never pleads that he didn’t
receive such care as he needed. Therefore, Defendants’ motion for summary judgment will be
granted as to the deliberate indifference claim.

f. There is No Evidence in the Record to Support Plaintiff’s Federal Conspiracy Claim

“To prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting
under color of state law reached an understanding to deprive him of his constitutional rights.”
Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293–94 (3d Cir. 2018) (cleaned up). The allegations
here do not appear to be directed to the use of excessive force, and as I have concluded the record
does not support other deprivations of any right, a claim alleging conspiracy necessarily fails. Id.
at 295 (noting that the plaintiff must establish “that the object of the conspiracy was the deprivation

8 As previously noted, Defendants have not moved for summary judgment as to the excessive use of force
or assault and battery claims against Officers Knight and Marrero.
of a federally protected right.”). Moreover, “the plaintiff must provide some factual basis to
support the existence of the elements of a conspiracy: agreement and concerted action.” Id. at 295
(cleaned up). Here, there is no evidence from which a reasonable juror could infer a conspiratorial
agreement. The only pleaded fact that could support the existence of a conspiracy is that an

unknown officer followed up with Mr. Howard to ask him why he had filed a complaint against
Officer Knight, which Plaintiff says shows that the officers were upset about the complaint and
biased against him. Standing alone, such an allegation is wholly insufficient for a reasonable finder
of fact to infer conspiracy.
g. There Is No Evidence in the Record to Support the State Conspiracy Claim:
Similarly, Plaintiff’s state civil conspiracy claim fails. “To prove a civil conspiracy, it must
be shown that two or more persons combined or agreed with intent to do an unlawful act or to do
an otherwise lawful act by unlawful means.” Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466,
472 (Pa. 1979). Plaintiff must proffer facts establishing a “combination, agreement, or
understanding among all or between any of the defendants.” Ammlung v. City of Chester, 494 F.2d

811, 814 (3d Cir. 1974). For the same reasons discussed in the context of the federal conspiracy
Plaintiff has failed to substantiate any “unlawful act” or any conspiratorial agreement or
understanding. Summary judgement is therefore appropriate.
h. Plaintiff’s Intentional Infliction of Emotional Distress Claim Fails
To recover on an IIED claim, a plaintiff must allege conduct “so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized society.” Hoy v. Angelone, 720 A.2d 745, 754 (Pa.
1998).9 Described another way, “[i]t has not been enough that the defendant has acted with intent

9 The Pennsylvania Supreme Court has yet to decisively rule on whether intentional infliction of emotional
distress is a valid cause of action. See Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (“[T]his court has
which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that
his conduct has been characterized by ‘malice,’ or a degree of aggravation that would entitle the
plaintiff to punitive damages for another tort.” Id. (quoting Restatement (Second) of Torts §46,
comment d). In addition, a plaintiff must produce “competent medical evidence” supporting such

claim. Kazatsky v. King David Mem'l Park, Inc., 527 A.2d 988, 995 (Pa. 1987); Bolden v. Se.
Pennsylvania Transp. Auth., 21 F.3d 29, 35 (3d Cir. 1994).
Here, the conduct alleged would not suffice to state a claim, and Plaintiff has not produced
competent medical evidence that he suffers or suffered from emotional distress as a result of the
alleged outrageous conduct.
i. Plaintiff’s Abuse of Process Claim Fails:
To state claim for abuse of process under Pennsylvania law, a plaintiff must prove: “that
the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose
for which the process was not designed; and (3) harm has been caused to the plaintiff.” Shiner v.
Moriarty, 706 A.2d 1228, 1236 (Pa. Super. 1998), appeal denied, 729 A.2d 1130 (Pa. 1998). “In

support of this claim, the [plaintiff] must show some definite act or threat not authorized by the
process, or aimed at an objective not legitimate in the use of the process ... and there is no liability
where the defendant has done nothing more than carry out the process to its authorized conclusion,
even though with bad intentions.” Id. “The gist of an action for abuse of process is the improper
use of process after it has been issued, that is, a perversion of it.” McGee v. Feege, 535 A.2d 1020,
1023 (Pa. 1987) (cleaned up).

not expressly adopted section 46 of the Restatement [setting out an IIED claim]. … [W]e too leave to
another day the issue of whether section 46 of the Restatement should be the law of Pennsylvania.”). The
Third Circuit has predicted that Pennsylvania will recognize such a tort. See Pavlik v. Lane Ltd./Tobacco
Exporters Int’l, 135 F.3d 876, 890 (3d Cir. 1998).
Here, there is no evidence that suggests that the criminal action against Mr. Howard was
later perverted or used for a purpose other than intended by the law. See Rose v. Bartle, 871 F.2d
331, 350 n. 17 (3d Cir. 1989) (“In contrast to a section 1983 claim for malicious prosecution, a
section 1983 claim for malicious abuse of process lies where ‘prosecution is initiated legitimately

and thereafter is used for a purpose other than that intended by the law.’”) (quoting Jennings v.
Shuman, 567 F.2d 1213, 1217 (3d Cir.1977)).
Although Plaintiff contends that he was arrested and beaten in August in retaliation for
having filed a complaint against Officer Knight a month prior, he points to no evidence beyond
his own speculations to support this theory. Moreover, the record reflects that the officers were
called to the location in August by a neighbor for a burglary in progress and that they witnessed
Plaintiff near the rear of the property trying to hide against a wall. The investigation was thereafter
turned over to the District Attorney’s Office, which approved the charges against Plaintiff for
burglary, criminal trespass, and resisting arrest. Duffy Decl. ¶¶ 12, 14-15, Ex. B. Finally, the
charges were ultimately nolle prossed. See Russoli v. Salisbury Twp., 126 F. Supp. 2d 821, 858

(E.D. Pa. 2000) (granting summary judgment on abuse of process claim where plaintiff did not
maintain that action was started legitimately and perverted and did not produce evidence that
defendants desired anything other than a criminal conviction).
j. Plaintiff’s Spoliation Claim Fails
Plaintiff alleges a spoliation claim related to the allegedly destroyed or tampered with video
footage. This claim also fails, because spoliation is not recognized as a distinct cause of action
under Pennsylvania law. See Pyeritz v. Com., 32 A.3d 687 (Pa. 2011) (holding that there is no
cause of action for the tort of spoliation of evidence).
IV. Conclusion
For the reasons set forth above, Defendants’ Partial Motion for Summary Judgment will
be granted in all respects. An appropriate order follows.

/s/ Gerald Austin McHugh
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10403435. Public record. Not legal advice.