Stevens v. Sullum

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOHN STEVENS, :

:

Plaintiff CIVIL ACTION NO. 3:20-1911

:

v. (JUDGE MANNION)

:

JESSI SULLUM, et al.,

:

Defendants :

M E M O R A N D U M

I. BACKGROUND

John Stevens, a chiropractor, was arrested and charged with various

counts of sexual assault regarding an acquaintance and one of his patients,

Jessi Sullum, by detectives of the Lackawanna County District Attorney’s

(“DA”) Office. The charges were dismissed prior to trial. Stevens has filed the

instant civil rights action pursuant to 42 U.S.C. §1983, naming as defendants

Sullum, Michelle Mancuso, Chris Kolcharno, Lackawanna County DA Mark

Powell, and Assistant District Attorney (“ADA”) Judy Price. Also named as a

defendant, based upon municipal liability under Monell v. Department of

Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018 (1978), is Lackawanna

County. Mancuso, Kolcharno, Powell and Price shall hereinafter be referred

to as “DA defendants.”

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In his amended complaint, (Doc. 9), Stevens asserts claims under

§1983 for malicious prosecution, abuse of process, false arrest, and false

imprisonment, and he alleges violations of his rights under the 4th, 5th and

14th Amendments. (Counts I-IV).1 Stevens also raises a claim for conspiracy

to violate his civil rights under §1985. (Count V). Additionally, Stevens raises

state law claims against Sullum for malicious prosecution and abuse of

1Unfortunately, the amended complaint has multiple errors which can

be summarily addressed. Counsel is encouraged to be more careful in the

future to avoid unfounded claims. Stevens mistakenly asserts violations of

his rights under the 5th Amendment. Since they are no federal officials named

as defendants, plaintiff has no claim under the 5th Amendment. See Moore

v. Richman, 797 F.Supp.2d 572, 580 (W.D. Pa. 2011) (“Plaintiff’s claim

alleging that the [] Defendants committed violations of the Fifth Amendment

must fail because ‘the Fifth Amendment restricts the actions of federal

officials, not state actors.’”) (citation omitted). As such, all of Stevens’ claims

to the extent that they are based on the 5th Amendment are dismissed with

prejudice.

Further, insofar as Stevens seeks punitive damages against the

County in Counts I, II and V, these claims are dismissed with prejudice. The

Supreme Court has held that a municipality is immune from punitive

damages under §1983. See City of Newport v. Fact Concerts, Inc., 453 US

247, 271 (1981). Further, to the extent Stevens is suing the individual DA

defendants in their official capacity, they are also immune from punitive

damages. See K.A. ex rel. J.A. v. Abington Heights Sch. Dist., 28 F.Supp.3d

356, 378 (M.D. Pa. 2014).

Additionally, insofar as Stevens raises his claims under §1983 against

DA defendants in their official capacity, they are subject to dismissal with

prejudice because these claims are viewed as claims against the County.

See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099 (1985) (“[A]n

official-capacity suit is, in all respects other than name, to be treated as a

suit against the entity .... It is not a suit against the official personally, for the

real party in interest is the entity.”); Monell, 436 U.S. at 691 n. 55 (“[O]fficial-

capacity suits generally represent only another way of pleading an action

against an entity of which an officer is an agent.”)). Thus, all of Stevens’

claims under §1983 against DA defendants in their official capacity are

dismissed with prejudice.

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process, as well as a state law claim for tortious interference with contractual

relations against Powell. (Counts VI-VIII).

On December 30, 2020, the County and DA defendants filed a motion

to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(6), arguing, in

part, that they are entitled to absolute and qualified immunity. (Doc. 11).

Also, on December 30, 2020, Sullum filed a Rule 12(b)(6) motion to

dismiss. (Doc. 13).

Defendants filed briefs in support of their motions as well as Exhibits.

Stevens requested an extension of time to file his briefs in opposition

to the motions, and the court granted his request giving him until February 5,

2021 to file his briefs. (Docs. 14 & 15).

On January 8, 2021, the County and DA defendants filed a motion for

a protective order, pursuant Fed.R.Civ.P. 26(c)(1), seeking the court to stay

discovery pending a decision on their motion to dismiss based on their

contentions that they are entitled to immunity. (Doc. 16). Defendants

simultaneously filed their brief in support. (Doc. 17). Sullum concurred in the

motion.

On January 11, 2021, Stevens filed his brief in opposition to the motion

for protective order. (Doc. 18).

Both sides filed Exhibits, including copies of Stevens’ subpoenas to

conduct depositions on January 21, 2021.

For the reasons discussed below, the motion for protective order of the

defendants will be DENIED.

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II. STANDARD

Pursuant to Federal Rule of Civil Procedure 26(c), the Court may stay

discovery pending determination of a motion to dismiss only on a

showing of “good cause” by the party requesting the stay. Gerald

Chamales Corp. v. Oki Data Americas, Inc., et al., 247 F.R.D. 453, 454

(D.N.J. Dec. 11, 2007) (“A protective order pursuant to Fed.R.Civ.P.

26(c) may only be issued if ‘good cause’ is shown.”); Fed.R.Civ.P.

26(c)(1) (establishing that the court may issue a protective order with

respect to discovery only for “good cause”); see Perelman v. Perelman,

2011 U.S. Dist. LEXIS 85470, at *2–3, 2011 WL 3332040 (E.D.Pa.

Aug. 3, 2011) (“The burden is on the party seeking the stay [of

discovery] to show ‘good cause.’”) (citations omitted). It is well settled

that “the mere filing of a dispositive motion does not constitute ‘good

cause’ for the issuance of a discovery stay.” Chamales, 247 F.R.D. at

454; see Fed.R.Civ.P. 26(d)(2)(A) (“[M]ethods of discovery may be

used in any sequence ....”).

Newsome v. City of Newark, 2014 WL 1767562, *1 (D. N.J. May 2, 2014).

Moreover, “courts generally do not favor granting motions to stay

discovery ‘because when discovery is delayed or prolonged it can create

case management problems which impede the court’s responsibility to

expedite discovery and cause unnecessary litigation expenses and

problems.’” Id. (internal citations omitted). Further, the court “maintains wide

discretion to manage discovery issues and enter stays where good cause

has been shown.” Id. (citations omitted).

In cases like the instant one where immunity defenses are raised, “the

Supreme Court has admonished that ‘[u]ntil [the] threshold immunity

question is resolved, discovery should not be allowed.’” Id. at *2 (citing

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Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982)). “Unless the

plaintiff’s allegations state a claim of violation of clearly established law, a

defendant pleading qualified immunity is entitled to dismissal before the

commencement of discovery.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511,

526, 105 S.Ct. 2806 (1985)). Thus, while discovery is to be avoided if

possible when defendants raise immunity defenses to plaintiff’s claims,

discovery should proceed if plaintiff’s allegations “state a claim of violation of

clearly established law.”

III. DISCUSSION

At issue is whether the court should grant DA defendants’ motion for

protective order to stay discovery pending disposition of their motion to

dismiss Stevens’ false arrest, false imprisonment and malicious prosecution

claims based, in part, on the contention they are entitled to absolute and

qualified immunity.

The DA and ADA may be entitled to absolute immunity to the extent

that their actions involved instituting criminal proceedings against Stevens

and continuing those proceedings. See Spiker v. Allegheny Co. Bd. Of Prob

& Parole, 920 F.Supp.2d 580, 600 (W.D. Pa. 2013). However, the DA and

ADA may not be entitled to absolute immunity (but may be entitled to

qualified immunity after discovery) for pre-arrest advice and for their

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involvement with the detectives’ actions taken regarding Stevens’ arrest. Id.

(citing Walker v. Clearfield Cnty. Dist. Attorney, 413 Fed.Appx. 481, 483 (3d

Cir. 2011) (holding “to the extent that [the plaintiff’s] complaint concerns [the

prosecutor’s] pre-indictment investigation of the allegations against [the

plaintiff], [the prosecutor] is entitled only to qualified immunity. By contrast,

[the prosecutor] is entitled to absolute immunity ... based on the decision to

prosecute.”).

“Courts have held that the determination whether the giving of advice

or direction to the police is a core prosecutorial function depends upon

whether the advice or direction was given before or after the filing of

charges.” Spiker, 920 F.Supp.2d at 600 (citations omitted). “[T]he Supreme

Court [has] held absolute immunity does not extend to the prosecutorial

function of giving advice to the police prior to an arrest or indictment.” Id.

(citing Burns, 500 U.S. at 496). In Burns, the prosecutor gave police officers

advice with respect to whether they had probable cause to arrest the plaintiff

prior to charges being filed against her and the Court held the prosecutor

was not entitled to absolute immunity for giving such advice to the police.

See id. See also Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008) (holding

that DA not entitled to absolute immunity for “investigatory actions unrelated

to initiating and conducting judicial proceedings”).

Here, while the DA defendants’ motion to dismiss is not yet ripe, based

upon the court’s review of Stevens’ pleading and the motion, it appears that

his factual allegations, accepted as true and viewed in a light most favorable

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to him, may “state a claim of violation of clearly established law.” See

Groman v. Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (“To make a prima

facie case under §1983, the plaintiff must demonstrate that a person acting

under color of [state] law deprived him of a federal right.”). See also Clifton

v. Borough of Eddystone, 824 F.Supp.2d at 622 (“A state official with

qualified immunity has no civil liability for discretionary conduct so long as he

does ‘not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.’”) (citing Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S.Ct. 2727 (1982)).

Stevens appears to raise sufficient allegations against DA defendants

to plausibly show that it would have been clear to reasonable officers in their

position that their conduct violated clearly established 4th Amendment rights.

In his amended complaint, Stevens alleges DA defendants violated his

constitutional rights under the 4th and 14th Amendments. Specifically,

Stevens alleges instances of prosecutorial misconduct by the DA and the

ADA that, if proven, would not entitle them to absolute immunity under the

Burns case, including his allegations that the defendant prosecutors had

detectives file criminal charges against him at the behest of Judge Edwards

and that the Judge and ADA Price communicated shortly before defendant

detectives filed the affidavit of probable cause for his arrest. Since Stevens

alleges that Sullum lied about being sexually assaulted by him and then

called her aunt, Judge Edwards, and that the prosecutors gave the detectives

advice about arresting him, in part based on Edwards’ behest, his amended

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complaint appears to allege facts sufficient to make absolute immunity

undeterminable at this time. Also, the DA defendants may not be entitled to

immunity regarding Stevens’ allegations that they manufactured evidence

that Sullum suffered from PTSD to try and explain her lying to police about

her sexual assault claims, especially since Stevens alleges that the

defendants manufactured the evidence prior to filing the Criminal Information

against him. (See Doc. 18-1).

IV. CONCLUSION

The DA defendants’ motion for a protective order, (Doc. 16), staying

discovery pending resolution of their motion to dismiss Stevens’ amended

complaint is DENIED and, discovery shall continue pursuant to the court’s

scheduling order, (Doc. 22).

All of Stevens’ claims under §1983 against the DA defendants, to the

extent that they are asserted against them in their official capacity, are

DISMISSED WITH PREJUDICE.

Stevens’ claims for punitive damages against Lackawanna County,

and against the DA defendants in their official capacity, are DISMISSED

WITH PREJUDICE.

Stevens’ claims for violations of his rights under the 5th Amendment are

DISMISSED WITH PREJUDICE.

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The motions to dismiss (Docs. 11 &13) will be decided separately, at a

later time, as they are not yet ripe. An appropriate order shall follow.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Date: January 14, 2021

20-1911-01

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