Molitor v. City of Scranton

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH MOLITOR, :

Plaintiff : CIVIL ACTION NO. 3:20-1266

v. :

(JUDGE MANNION)

CITY OF SCRANTON, :

PENNSYLVANIA STATE POLICE,

JASON GULA, DAVID HEINKE, :

LAUREN FETCH, LAUREN FORCE

:

Defendants

MEMORANDUM

On July 23, 2020, Plaintiff Joseph Molitor (“Plaintiff” or “Molitor”) filed a

complaint in this District, (Doc. 1), asserting various claims against

defendants City of Scranton, Officer Jason Gula of the City of Scranton

Police Department, Pennsylvania State Police, Inspector David Heinke of the

U.S. Postal Inspection Service, Inspector Lauren Fetch of the U.S. Postal

Inspection Service, and John Doe. In an amended complaint filed on July 29,

2020, (Doc. 4), Plaintiff added as a defendant forensic scientist Lauren Force

of the Pennsylvania State Police (collectively, with the other named

defendants, “Defendants”).

Plaintiff raises claims in his amended complaint against select

Defendants for false arrest (Count I), malicious prosecution (Count II),

conspiracy to commit false arrest, malicious prosecution, and unlawful

seizure (Count III), unlawful seizure (Count IV), and Monell liability (Counts

V, VIII) under 42 U.S.C. §1983, and claims for false arrest (Count VI),

malicious prosecution (Count VII), fraud (Count IX), and civil conspiracy

(Count X) under state law.

Pending before the Court are two separate motions filed on behalf of

defendants City of Scranton and Jason Gula, (the “City Defendants”), (Doc.

10), and defendants Pennsylvania State Police and Lauren Force, (the “State

Police Defendants”), (Doc. 16), to dismiss Plaintiff’s amended complaint for

failure to state claims upon which relief can be granted. Plaintiff raises ten

claims against these four defendants, including Counts I, II, and III against

defendants Gula and Force, Counts IV, VI, and VII against defendant Gula,

Counts IX and X against defendant Force, Count V against defendant City of

Scranton, and Count VIII against defendant Pennsylvania State Police.

Viewing the evidence in a light most favorable to the non-moving party,

the Court will: GRANT the City Defendants’ motion to dismiss Counts I, II, III,

IV, VI, and VII as to defendant Gula; GRANT the City Defendants’ motion to

dismiss Count V as to defendant City of Scranton; GRANT the State Police

Defendants’ motion to dismiss Counts I, II, III, IX, and X as to defendant

Force; and GRANT the State Police Defendants’ motion to dismiss Count

VIII as to defendant Pennsylvania State Police.1

1 In his brief replying to the State Police Defendants’ motion to dismiss,

Plaintiff “agrees to dismiss counts IX and X against Defendant Force as she

I. BACKGROUND

Marijuana is a psychoactive drug derived from the cannabis plant and

has historically been utilized for both recreational and medical purposes.

Hemp, in comparison, though derived from the same species of cannabis

plant as marijuana and similarly containing the psychoactive component

tetrahydrocannabinol (“THC”), represents a distinct strain of the plant with a

unique chemical composition. Cannabidiol (“CBD”) is a compound found

within cannabis plants and is often extracted from the plants and infused with

numerous benign products for consumption or therapeutic uses. The

differentiation between marijuana and hemp, as well as the different forms of

CBD, though potentially similar in either appearance or smell based on their

state, is most often dependent on the level of THC within the substances.

Restrictions concerning marijuana and other substances with varying

degrees of THC have shifted and continue to shift as more jurisdictions

decriminalize the possession and distribution of such products. Though

marijuana is considered a controlled substance in many jurisdictions,

including on the federal and Pennsylvania state levels, other substances with

lower THC levels, such as hemp and hemp-derived CBD, are legal to

possess in most instances. In Pennsylvania, hemp and hemp-derived CBD,

is entitled to sovereign immunity.” The Court will thus proceed without

providing analysis as to these two claims.

which maintain a TCH concentration of less than 0.3 percent, are legal to

possess.

Plaintiff Joseph Molitor is a resident of Pennsylvania and owner of the

CBD Shop of Northeast Pennsylvania, a “lawful business owned and

operated by Plaintiff under Pennsylvania and Federal Law.” In August 2018,

Plaintiff attempted to mail several packages from the United States Post

Office in the Steamtown Mall in Scranton, Pennsylvania. Plaintiff alleges that

upon inspection of Plaintiff’s packages, defendant Fetch, an inspector

employed by the U.S. Postal Service, detected a suspicious odor permeating

from these packages, and in consideration of this odor, on or about August

7, 2018, defendants Fetch and Heinke “seized the packages and prevented

them from being mailed.”

On August 28, 2018, defendant Fetch obtained a search warrant for

Plaintiff’s packages and several days later, defendant Heinke allegedly

executed the search warrant by opening Plaintiff’s packages, within which he

found 11.3 grams of a “green, leafy substance.” Plaintiff further claims that

during this search, along with the green, leafy substance, defendant Heinke

also found a certificate of analysis from a licensed CBD and hemp testing

center stating that the packages did not contain marijuana but CBD or hemp

based on the levels of THC. Nevertheless, defendants Heinke and Fetch

“referred this matter to Defendant Gula for prosecution.”

Plaintiff alleges that upon receipt of the substance from defendants

Heinke and Fetch, defendant Gula, with defendants Heinke and Fetch, sent

the substance to a laboratory operated by defendant Pennsylvania State

Police. According to Plaintiff, defendant Force, a forensic scientist employed

by the State Police, conducted testing on the substance and reported to

defendants Heinke, Fetch, and Gula that the substance “contained

marijuana” even though “[d]efendant Lauren Force knew that [her] report was

materially false.” Based on the findings of defendant Force’s report,

defendant Gula filed charges on June 5, 2019, against Plaintiff for felony

possession of marijuana and precipitated the arrest of Plaintiff. On February

13, 2020, however, the Lackawanna County District Attorney’s Office filed a

nolle prosequi, dismissing the pending criminal charges against Plaintiff.

Thereafter, Plaintiff filed his complaint against the Defendants arguing that

the initial search and seizure of his packages were unconstitutional, while the

Defendants lacked probable cause to effectuate his arrest as the substance

had legal levels of THC.

On October 30, 2020, the City Defendants filed a motion to dismiss

Plaintiff’s Section 1983 and state-law claims. On December 28, 2020, the

State Police Defendants filed a similar motion to dismiss Plaintiff’s claims.

This Court has jurisdiction over this action pursuant to 28 U.S.C. §§1331 and

1343, and it can exercise pendent jurisdiction over the state-law claims under

28 U.S.C. § 1337. Venue is proper in this district. The Court will thus turn to

the merits of Plaintiff’s claims.

II. STANDARD

The defendants’ motions to dismiss are brought pursuant to the

Federal Rule of Civil Procedure Rule 12(b)(6). This rule provides for the

dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The moving party

bears the burden of showing that no claim has been stated, Hedges v. United

States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only

if, accepting all of the facts alleged in the complaint as true, the plaintiff has

failed to plead “enough facts to state a claim to relief that is plausible on its

face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating “no

set of facts” language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

The facts alleged must be sufficient to “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. This requirement “calls for

enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence” of necessary elements of the plaintiff’s cause of action. Id. at 556.

Furthermore, in order to satisfy federal pleading requirements, the plaintiff

must “provide the grounds of his entitlement to relief,” which “requires more

than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Phillips v. County of Allegheny, 515 F.3d 224,

231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting

Twombly, 550 U.S. at 555).

In considering a motion to dismiss, the court generally relies on the

complaint, attached exhibits, and matters of public record. Sands v.

McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider

“undisputedly authentic document[s] that a defendant attaches as an exhibit

to a motion to dismiss if the plaintiff’s claims are based on the [attached]

documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are

alleged in the complaint and whose authenticity no party questions, but which

are not physically attached to the pleading, may be considered.” Pryor v.

Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). The court,

however, may not rely on other parts of the record in determining a motion

to dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,

1261 (3d Cir. 1994).2

III. DISCUSSION

The Plaintiff raises ten separate causes of action against defendants

City of Scranton, Jason Gula, Pennsylvania State Police, and Lauren Force,

including: (I) false arrest under §1983 against defendants Gula and Force;

(II) malicious prosecution under §1983 against defendants Gula and Force;

2 Generally, courts should grant leave to amend a complaint before

dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver,

213 F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is

justified only on the grounds of bad faith, undue delay, prejudice, or futility.”

Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

(III) conspiracy to commit false arrest, malicious prosecution and unlawful

seizure under §1983 against defendants Gula and Force; (IV) unlawful

seizure under §1983 against defendants Gula and Force; (V) Monell liability

under §1983 against defendant City of Scranton; (VI) common law false

arrest against defendant Gula; (VII) common law malicious prosecution

against defendant Gula; (VIII) Monell liability under §1983 against defendant

Pennsylvania State Police; (IX) common law fraud against defendant Force;

and (X) common law civil conspiracy against defendant Force. The Court will

analyze these claims in turn.

A. Jurisdiction

As a preliminary matter, the State Police Defendants argue that this

Court does not have jurisdiction as neither the complaint nor the amended

complaint were properly served. Pursuant to the Federal Rules of Civil

Procedure,

“[i]f a defendant is not served within 90 days after the complaint

is filed, the court—on motion or on its own after notice to the

plaintiff—must dismiss the action without prejudice against that

defendant or order that service be made within a specified time.

But if the plaintiff shows good cause for the failure, the court must

extend the time for service for an appropriate period.”

Fed. R. Civ. P. § 4. The State Police Defendants argue that “the Court does

not have jurisdiction” as the amended complaint, filed on July 29, 2020, was

“not received by [State Police Defendants] until December 5, 2020.”

In response, Plaintiff claims that he had attempted to serve defendants

Pennsylvania State Police and Force on July 31, 2020, and that “[u]pon

inquiry, the postal service indicated that the mailing was delivered, but due

to technical errors, was not updated in the system and the return green card

was not returned.” As the Plaintiff did not receive a response to service, he

claims to have utilized a private investigator to serve the amended complaint,

but these attempts to perfect service were rebuffed by the defendants who

allegedly refused to accept service.3 Based on these efforts, consideration

of the worldwide pandemic, and other issues faced by the U.S. Postal

Service in the summer of 2020, Plaintiff seems to have made good faith

efforts to serve its amended complaint but was stymied by issues outside his

control.

3 Plaintiff provided the Court with receipts from the U.S. Postal Service

that indicate Plaintiff made efforts to serve the amended complaint in July

2020. (Docs. 22-1, 22-2). Generally, “a district court ruling on a motion to

dismiss may not consider matters extraneous to the pleadings.” In re

Burlington Coat Factory, 114 F.3d 1410, 1426 (3d Cir. 1997) (citing

Angelastro v. Prudential-Bache Sec. Inc., 764 F.2d 939, 944 (3d Cir. 1983)).

Courts, however, may consider any “document integral to or explicitly relied

upon in the complaint … without converting motion to dismiss into one for

summary judgment.” Id. (citation omitted); In re Donald Trump Casino Sec.

Litig., 7 F.3d 357, 368 n.9 (3d Cir. 1993) (“a court may consider an

undisputedly authentic document that a defendant attaches as an exhibit to

a motion to dismiss if the plaintiff's claims are based on the document.”). The

Court may thus look to these exhibits in determining jurisdiction.

Though defendants Pennsylvania State Police and Force eventually

received copies of the amended complaint, the Court need not require proper

service given the foregoing decision on the merits.

B. Claims Under 42 U.S.C. §1983

Plaintiff raises six separate claims under Section 1983. These include

claims for false arrest, malicious prosecution, unlawful seizure, Monell

liability, and conspiracy to commit false arrest, malicious prosecution, and

unlawful seizure. Section 1983 authorizes redress for violations of

constitutional rights and provides in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory ...

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for

redress....

42 U.S.C. §1983. Thus, to establish a violation of Section 1983, a plaintiff

must demonstrate that the challenged conduct was committed by a person

acting under color of state law and deprived the plaintiff of rights, privileges,

or immunities secured by the Constitution or laws of the United States. Lake

v. Arnold, 112 F.3d 682, 689 (3d Cir. 1997). By its terms, Section 1983 does

not create a substantive right, but merely provides a method for vindicating

federal rights conferred by the United States Constitution and the federal

statutes that it describes. Baker v. McCollan, 443 U.S. 137 (1979); see also

Hart v. Tannery, 2011 WL 940311 (E.D. Pa. Mar. 14, 2011).

Plaintiff raises his six claims under Section 1983 against defendants

City of Scranton, Gula, Pennsylvania State Police, and Force respectively.

The Court will view each of these claims separately for the different

defendants.

a. False arrest as to defendants Gula and Force

A claim under Section 1983 for false arrest is grounded in the Fourth

Amendment guarantee against unreasonable seizures. Garcia v. Cty. of

Bucks, 155 F.Supp.2d 259, 265 (E.D. Pa. 2001) (citing Groman v. Twp. of

Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)). To maintain a claim for false

arrest, a plaintiff must show that he or she was arrested and the arresting

officer “lacked probable cause to make the arrest.” Id. (citing Dowling v. City

of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)). Probable cause exists

when the facts and circumstances are “sufficient to justify a prudent officer

in believing that the suspect had committed or was committing a crime.”

Jones v. Middletown Twp., 253 F. App’x 184, 188 (3d Cir. 2007) (citing

Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). A court will look to the “totality

of the circumstances” and use a “common sense approach” in assessing

whether there was or was not probable cause at the time of an individual’s

arrest. Id. (citing United States v. Glasser, 750 F.2d 1197, 1205 (3d Cir.

1984)). Probable cause is to be determined by the facts and circumstances

within the officer’s knowledge at the time of the arrest. Hart, 2011 WL

940311, at *10.4

Defendant Gula, as an officer with the Pennsylvania State Police, was

sent packages from inspectors employed by the U.S. Postal Service that,

upon a warrant-based search, were found to contain 11.3 grams of a “green,

leafy substance” with an odor consistent with marijuana. Plaintiff claims that

upon receipt of these packages, defendant Gula delivered the substance to

defendant Force, a forensic scientist working for the Pennsylvania State

Police, who, following testing, concluded in a report to Gula that the

substance “contained marijuana.” Plaintiff, however, in somewhat

contradictory terms, also alleges that Gula “knew that this lab report merely

indicated the presence of THC in the substance.” Regardless, Plaintiff

asserts that upon review of and in reliance on Force’s report and certification

of the contents of Plaintiff’s packages, defendant Gula filed criminal charges

against Plaintiff and precipitated his arrest.

4 When a plaintiff is arrested pursuant to a warrant, it is proper for a

court to “focus[] its probable cause analysis on whether [the defendant]

‘knowingly and deliberately, or with reckless disregard for the truth, made

false statements or omissions that create[d] a falsehood in applying for the

warrant.’” Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000) (quoting

Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)) (internal quotation

marks omitted). The parties, however, do not point to a warrant obtained

before Plaintiff was arrested. Therefore, the analysis regarding Plaintiff’s

arrest will focus solely on the standards set forth in Jones and Groman.

Marijuana is currently illegal to possess or send through the mail under

federal and Pennsylvania law. 21 U.S.C. §801, et seq.; 35 P.S. §780-101, et

seq. Hemp and hemp-based CBD, like marijuana, were generally considered

illegal substances under the federal Controlled Substance Act until passage

of the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”).5 Through

the 2018 Farm Bill, the federal government changed the legal status of hemp

and removed it from regulation under the federal Controlled Substance Act,

ending many restrictions on import or interstate movement of hemp seed,

plants, or products. See Agriculture Improvement Act of 2018, Pub. L. No.

115-334, § 12619(a)(B), 132 Stat. 4490, 5018 (2018) (confirming that “the

term ‘marihuana’ does not include … hemp, as defined in section 297A of

the Agricultural Marketing Act of 1946”). The 2018 Farm Bill, however, was

not passed into law until December 20, 2018, several months after Plaintiff’s

5 The Controlled Substances Act of 1970 identified all parts of the

cannabis sativa L. plant, including hemp, as Schedule I substances.

Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No.

91-513, §§102(15), 202(c)(c)(10), 84 Stat. 1236, 1244, 1249 (1970).

Through the Agricultural Act of 2014, (the “2014 Farm Bill”), Congress

created pilot programs to study the growth, cultivation, and marketing of

hemp (labeled “industrial hemp”) by institutions of higher education or state

departments of agriculture. Agriculture Act of 2014, Pub. L. No. 113-79,

§7606, 128 Stat. 648, 912-13 (2014). The 2014 Farm Bill defined the term

“industrial hemp” as “the plant Cannabis sativa L. and any part of such plant

… with a delta-9 [THC] of not more than 0.3 percent on a dry weight basis.”

7 U.S.C. §5940(a)(2). This earlier bill, however, did not completely

decriminalize the production, distribution, or use of hemp, and did not remove

hemp from the list of illegal substances covered by the Controlled

Substances Act. Id. at §5940(b).

packages were searched and seized. Id. at 4490. The Pennsylvania

Department of Agriculture did not publish regulations allowing for industrial

hemp permits to be issued for the commercial growth and processing of

hemp and hemp-derived products until January 2019.6

Based on the information allegedly presented to defendant Gula prior

to Plaintiff’s arrest and a “common sense approach” as to its implications,

there appears no cognizable basis upon which to contradict a conclusion that

there persisted facts “sufficient to justify a prudent officer in believing that the

suspect had committed or was committing a crime.” Jones, 253 F. App’x at

188 (citing Gerstein, 420 U.S. at 111). Plaintiff’s conclusory claim that

defendant Gula was made aware that the substance in Plaintiff’s packages

“contained marijuana” even though he “knew that [Force’s] lab report merely

indicated the presence of THC” fails to show that he “lacked probable cause

to make the arrest.” Garcia, 155 F.Supp.2d at 265 (citing Groman, 47 F.3d

6 Plaintiff does not address how or why his possession of hemp or

hemp-based CBD products would not be controlled by such regulations,

though the Court does recognize that limited exceptions to the possession

of certain THC-laden products existed at the time of Plaintiff’s arrest. See

supra n.5 (pilot programs to study the growth, cultivation, and marketing

industrial hemp created by the 2014 Farm Bill); see also 35 P.S. §10231.101

et seq. (the Pennsylvania Medical Marijuana Act, effective as of May 17,

2016, provided an avenue for patients, caregivers, and organizations to

register for the legal production, distribution, research or use of marijuana for

medical purposes under state law). Plaintiff, however, relies on C.Y.

Wholesale, Inc. v. Holcomb, 965 F.3d 541, 544 (7th Cir. 2020), which clearly

states that “under the 2014 [Farm Bill], industrial hemp plants and seeds (as

before) could ‘not be transported across State lines.’”

at 636). In addition, Plaintiff’s argument that a “Certificate of Analysis”

included in Plaintiff’s packages indicating the substance contained within

was “CBD and/or Hemp, not marijuana” would be sufficient to foreclose any

further investigation into the substance or reliance on a State Police forensic

report is unrealistic. Instead, at the time of Plaintiff’s arrest, the presence of

THC-laden elements of the cannabis sativa L. plant in Plaintiff’s packages

constituted reasonable grounds upon which defendant Gula maintained

probable cause.7 See United States v. Simmons, 2006 WL 1289356, at *3

(M.D. Pa. May 9, 2006), aff’d, 2007 WL 3122169 (3d Cir. Oct. 26, 2007) (the

presence of marijuana, later confirmed by a lab report, provided the arresting

officer with the “probable cause needed to arrest the [d]efendant.” (citing

United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002))).8

7 Plaintiff fails to make clear in his complaint what was actually in his

packages. Plaintiff asserts in multiple instances that they contained “CBD

and/or Hemp,” but he does not contest the fact that the substance contained

THC. Plaintiff’s own indecision as to his own packages seems to call into

question what the State Police Defendants and City Defendants should or

should not have reasonably known regarding the THC-laden “green, leafy

substance” appearing and emitting an odor similar to marijuana.

8 Even where further investigation by defendant Gula may or may not

have unearthed evidence that would exonerate Plaintiff before charges were

filed, it cannot be said that defendant Gula was required to take every

possible step to disprove the evidence he was provided before proceeding

with the filing of charges. See Collins v. Jones, 664 F. App’x 247, 249 (3d

Cir. 2016) (later lab evidence contradictory to evidentiary basis for probable

cause “irrelevant” for determination of probable cause at time of arrest).

In contrast, defendant Force, whom Plaintiff also alleges brought about

the Plaintiff’s false arrest, was not directly involved in the decision to either

charge or arrest Plaintiff. Plaintiff, however, instead argues that a defendant

such as Force “need not initiate a prosecution and may be held liable for

malicious prosecution if she ‘was instrumental in Plaintiff’s continued

confinement or prosecution.’” (Doc. 22 at 8-9) (citing Pierce v. Gilchrist, 359

F.3d 1279 (10th Cir. 2004)). In this regard, Plaintiff relies on cases from

nonprecedential circuits finding constitutional violations against lab

technicians that “concealed” evidence or created a “misleading and

scientifically inaccurate serology report.” Pierce, 359 F.3d at 1292 (citing

Jones v. City of Chicago, 856 F.2d 985, 993 (7th Cir. 1988)); Brown v. Miller,

519 F.3d 231, 238 (5th Cir. 2008).

In line with such cases, Plaintiff’s false arrest claim against defendant

Force is centered around an alleged failure of Force’s report to provide a

clear numerical determination as to the THC levels of the substance found

within Plaintiff’s packages. As the State Police Defendants point out,

however, the 2018 Farm Bill, which decriminalized hemp on the federal level,

was not signed into law until several months after the substance in Plaintiff’s

packages was tested. Therefore, any differentiation between THC levels in

marijuana and hemp at the time Force’s report was completed would have

been inconsequential for purposes of determining whether a crime was

committed. Plaintiff’s allegations of false arrest against defendants Gula and

Force, therefore, lacks a clear basis and thus will be dismissed.

b. Malicious prosecution as to defendants Gula and Force

To prove a Fourth Amendment malicious prosecution claim, a plaintiff

must show: “(1) the defendant initiated a criminal proceeding; (2) the criminal

proceeding ended in his favor; (3) the defendant initiated the proceeding

without probable cause; (4) the defendant acted maliciously or for a purpose

other than bringing the plaintiff to justice; and (5) the plaintiff suffered

deprivation of liberty consistent with the concept of seizure as a

consequence of a legal proceeding.” Curry v. Yachera, 835 F.3d 373, 379

(3d Cir. 2016) (quoting Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007));

Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).

The Plaintiff alleges that the initiation of criminal proceedings by

defendant Gula, which included filing charges involving the possession of a

controlled substance, was commenced without probable cause and with

malice, and resulted in Plaintiff’s arrest. Though questions persist as to the

degree that Gula was involved in initiating criminal proceedings, Plaintiff, as

with his claim for false arrest, has failed to plead facts sufficient to show

defendant Gula initiated proceedings without probable cause.9

9 While “a grant of nolle prosequi can be sufficient to satisfy the

favorable termination requirement for malicious prosecution, not all cases

where the prosecutor abandons criminal charges are considered to have

terminated favorably.” Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 2002)

(quoting Hilfirty v. Shipman, 91 F.3d 573, 579-80 (3d Cir. 1996)). Instead, a

decision by the government to file a motion for nolle prosequi abandoning

criminal charges “signifies termination of charges in favor of the accused only

when their final disposition is such as to indicate the innocence of the

Separately, defendant Force asserts that a claim for malicious

prosecution cannot be sustained because she “did not prepare the incident

report or file the criminal complaint” and was not personally involved in the

decision-making process that resulted in Plaintiff being charged. When

reviewing the complaint, Plaintiff does not allege that defendant Force was

involved in the investigatory or charging processes after she provided her

report to defendant Gula. See (Doc. 4 at ¶¶ 29-39). Instead, Plaintiff merely

asserts that defendant Force conducted laboratory testing on the substance

in Plaintiff’s packages, authored a report that indicated the substance was

marijuana, and provided this report to defendants Heinke, Fetch, “and/or”

Gula even though she “knew that this report was materially false.”

Though a Plaintiff may plead a plausible claim for malicious

prosecution against a lab technician where Plaintiff alleges that the

technician “intentionally, or at a minimum, recklessly, [reported] false

forensic conclusions to support the prosecution’s theory of the case,” malice

is still required. Siehl v. City of Johnstown, 365 F. Supp. 3d 587, 601-02

(W.D. Pa. 2019). In light of the state of the law in August 2018 and defendant

Force’s lack of any alleged involvement in the decision to charge the Plaintiff,

Plaintiff cannot show that defendant Force acted maliciously by merely

accused.” Donahue, 280 F.3d 371, at 383 (citation omitted). As the City

Defendants and State Police Defendants do not argue that the filing of a nolle

prosequi as to Plaintiff’s criminal charges did not establish Plaintiff’s

innocence, the Court will assume the criminal proceedings ended in

Plaintiff’s favor.

authoring a report that failed to provide a numerical THC percentage for

Plaintiff’s substance when such a distinction was not relevant for the State

Police Defendants’ investigation. See also (Doc. 4 at ¶33) (regardless of the

assertions within Force’s report, Plaintiff alleges “[d]efendants Gula, Heinke,

and Fetch also knew that this lab report merely indicated the presence of

THC in the substance, not the actual presence of marijuana,” seemingly

diminishing any influence drawn from defendant Force’s report).

c. Conspiracy to commit false arrest, malicious prosecution,

and unlawful seizure as to defendants Gula and Force

To prove a conspiracy under Section 1983, a plaintiff must

demonstrate an agreement of two or more conspirators to deprive the plaintiff

of a constitutional right under color of law. See Parkway Garage, Inc. v. City

of Phila., 5 F.3d 685, 700 (3d Cir. 1993), abrogated on other grounds; United

Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir.

2003). A plaintiff must “make specific factual allegations of combination,

agreement, or understanding among all or between any of the defendants to

plot, plan, or conspire to carry out the alleged chain of events.” Quintal v.

Volk, 2000 WL 1367948, at *2 (E.D. Pa. Sept. 21, 2000); Panayotides v.

Rabenold, 35 F.Supp.2d 411, 419 (E.D. Pa. 1999). It is recognized that a

plaintiff is not, however, required to produce direct evidence of a conspiracy.

Though Plaintiff has failed to clearly plead underlying constitutional

violations against defendants Gula and Force, he also fails to allege that

there was a “combination, agreement, or understanding” between

defendants Gula and Force, or that defendants Gula or Force thus conspired

with defendants Heinke and Fetch. In fact, the complaint appears to clearly

insulate the various portions of the investigative process between the search

and seizure by defendants Heinke and Fetch, the analysis of the substance

found in Plaintiff’s packages by defendant Force, and the filing of charges by

defendant Gula, who seemingly took it upon himself to wait eight months

after receiving Force’s report to file charges. Nowhere in his complaint does

Plaintiff ever indicate that defendants Force and Gula maintained any

discussions or communications between each other or with defendants

Heinke and Fetch except through the back-and-forth delivery of Plaintiff’s

packages or Force’s forensic report. Without any alleged efforts of

employees of the U.S. Postal Service, the City of Scranton, and the

Pennsylvania State Police to “plot, plan, or conspire to carry out the alleged

chain of events,” a conspiracy claim is thus unfounded.

d. Unlawful seizure as to defendant Gula

The Fourth Amendment protects against “unreasonable searches and

seizures” of an individual’s person, house, papers, and effects. U.S. Const.

Amend. IV. To establish a Fourth Amendment claim, a plaintiff must show

that the actions of the defendant: “(1) constituted a ‘search’ or ‘seizure’; and

(2) were unreasonable in light of the circumstances.” Stasko v. Lebanon Cty.

Drug Task Force, 2012 WL 6561726 (M.D. Pa. Dec. 17, 2012) (citations

omitted); see also Bower v. Cty. of Inyo, 489 U.S. 593, 595 (1989) (a

“‘[s]eizure’ alone is not enough for §1983 liability; the seizure must be

‘unreasonable’”). A search occurs when “an expectation of privacy that

society is prepared to consider reasonable is infringed,” while a seizure of

property occurs when there is “some meaningful interference with an

individual’s possessory interests in that property.” U.S. v. Jacobsen, 466

U.S. 109, 113 (1984) (citations omitted).

Defendant Gula does not contend that there was not a seizure of

Plaintiff’s property, nor that there was not a search. Instead, he argues that

there was no constitutional violation as the search and seizure of Plaintiff’s

packages were reasonable. In this instance, the determination as to whether

the search and seizure were reasonable must reflect a balance between the

Government’s interest in protecting the public and enforcing its laws versus

the duration and degree of intrusion into the Plaintiff’s privacy.

As a preliminary matter, where the authorities possess “specific and

articulable facts” warranting a reasonable belief that a package contains

narcotics, the “governmental interest in seizing [it] briefly to pursue further

investigation is substantial.” United States v. Place, 462 U.S. 696, 703

(1983). It is also well settled that the smell of marijuana alone, if articulable

and particularized, may establish probable cause. United States v. Ramos,

443 F.3d 304, 308 (3d Cir. 2006) (citing United States v. Humphries, 372

F.3d 653, 658 (4th Cir. 2004) (“[T]he odor of marijuana alone can provide

probable cause to believe that marijuana is present in a particular place.”);

United States v. Winters, 221 F.3d 1039, 1042 (8th Cir. 2000)).10 Further, a

seizure is typically reasonable when it is carried out with a warrant based on

probable cause. Katz v. United States, 389 U.S. 347, 356-357 (1967).

Plaintiff alleges that after defendant Fetch detected an odor coming

from Plaintiff’s packages believed to be consistent with marijuana, Fetch and

defendant Heinke seized the packages and obtained a warrant to conduct

the search. For Plaintiff, however, the extended delay of roughly two weeks

between the initial suspicion and the issuing of the warrant was an

unreasonable delay, whereas “Gula’s continuing possession of the property

constitute[d] an ongoing [unreasonable] seizure.” Though questions

regarding the degree of the intrusion of Plaintiff’s privacy rights by

defendants Heinke and Fetch may require further analysis, the seizure by

Gula, a state official who received the packages from Inspectors of an

independent federal agency after a warrant-based search, was not

unreasonable.

10 Plaintiff’s reliance on Commonwealth v. Barr, 240 A.3d 1263 (Pa.

Super. Ct. 2020), though highlighting the changing authority provided to

government agents to monitor marijuana and hemp in view of the

incremental decriminalization of cannabis-based products, is misplaced as

the case not only relies on a state-law medical marijuana exception that

would not have prevented the initial seizure of Plaintiff’s packages by federal

officers, but does not present facts sufficient to address the ability of the

government to monitor the mail when a suspicious odor may be the only

indicator that a criminal act is afoot.

Instead, in consideration of the claims pled by Plaintiff, the only step

that Gula could have taken to constitutionally protect the Plaintiff’s rights and

remain free from personal liability would have been to return these packages

to Plaintiff regardless of the information Gula possessed at the time. Such

an outcome would have clearly undermined the public’s interest and the

judicial process. Defendant Gula’s “continu[ed] possession” of Plaintiff’s

property, based on the totality of the circumstances alleged by Plaintiff, was

thus reasonable and the City Defendants’ motion to dismiss Plaintiff’s claim

for an unlawful seizure as to defendant Gula will be dismissed.

e. Monell claims against defendant City of Scranton and

Pennsylvania State Police

Claims against a municipality under Section 1983 are available only

under certain circumstances. In Monell v. Dep’t of Soc. Servs. of N.Y.C., the

Supreme Court states that “local governing bodies ... can be sued directly

under §1983 ... where ... the action that is alleged to be unconstitutional

implements or executes a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that body’s officers.” 436 U.S.

658, 690 (1978). Thus, a municipality may be held liable under Section 1983

where “the alleged unconstitutional action executes or implements policy or

a decision officially adopted or promulgated by those whose acts may fairly

be said to represent official policy.” Reitz v. Cty. of Bucks, 125 F.3d 139, 144

(3d Cir. 1997) (citing Monell, 436 U.S. 658 at 690-91). The Third Circuit has

interpreted this to allow for liability under three circumstances:

First, the municipality will be liable if its employee acted pursuant

to a formal government policy or a standard operating procedure

long accepted within the government entity, Jett v. Dall. Indep.

Sch. Dist., 491 U.S. 701, 737 (1989); second, liability will attach

when the individual has policy making authority rendering his or

her behavior an act of official government policy, Pembaur v. City

of Cincinnati, 475 U.S. 469, 480-81 (1986); third, the municipality

will be liable if an official with authority has ratified the

unconstitutional actions of a subordinate, rendering such

behavior official for liability purposes, City of St. Louis v.

Praprotnik, 485 U.S. 112, 127 (1988).

Spiess v. Pocono Mountain Reg’l Police Dep’t, 2013 WL 1249007, at *19

(M.D. Pa. Mar. 26, 2013) (quoting McGreevy v. Stroup, 413 F.3d 359, 367

(3d Cir. 2005)). In essence, a party must show that an unconstitutional policy

or custom exists or was created by a decisionmaker possessing final

authority. Forrest v. Parry, 930 F.3d 93, 105-06 (3d Cir. 2019) (“[A] plaintiff

presenting an unconstitutional policy must point to an official proclamation,

policy or edict by a decisionmaker possessing final authority to establish

municipal policy on the relevant subject. And, if alleging a custom, the plaintiff

must evince a given course of conduct so well-settled and permanent as to

virtually constitute law.”).

i. Monell claim against defendant City of Scranton

“[F]or a municipality to be liable under a municipal policy or custom

theory, the plaintiff needs to point to a specific policy or a custom that caused

his injury.” Jones v. Cty. of York, 2020 WL 3892878, at *4 (M.D. Pa. July 10,

2020). Plaintiff, however, fails to point to a specific policy utilized by

defendant City of Scranton. Instead, Plaintiff merely claims that the “City of

Scranton routinely utilize[s]” labs operated by defendant Pennsylvania State

Police and “regularly arrests individuals for substances containing any THC

without testing levels to determine legality.”11 This claim not only fails to meet

the requirements in Jones, but also does not take into account the fact that

the THC levels separating hemp from marijuana did not mark the border

between legality and illegality at the time of Plaintiff’s arrest. See supra

Section III(B)(a) (discussing the impact of the 2018 Farm Bill on the

decriminalization of hemp). As a result, Plaintiff inadequately identified an

unconstitutional policy utilized by the City Defendants and his Monell claim

against defendant City of Scranton will thus be dismissed.

ii. Monell claim against defendant Pennsylvania State

Police

Plaintiff does, however, attempt to identify a “policy, procedure,

practice, and/or custom” of the Pennsylvania State Police that instructs

technicians to “only test suspected marijuana for the presence of any THC.”

Though Plaintiff points to an ambiguous practice that may or may not reflect

an “official proclamation, policy or edict by a decisionmaker possessing final

authority to establish municipal policy on the relevant subject” as required by

Forrest, he insufficiently alleges that, at the relevant time, any such policy

11 Plaintiff also claims that “the manner by which Defendant City tests

suspected marijuana is to test the substance for the presence of THC” and

“determines that the substance contains marijuana” if THC is detected, even

though Plaintiff consistently claims throughout his complaint that the City

Defendants rely on testing conducted by the State Police Defendants.

would have been unconstitutional. As discussed above, the differentiation

between the THC levels of hemp and marijuana at the time of Plaintiff’s arrest

was not determinative as to the legality of possession. Therefore, regardless

of whether the policies of the Pennsylvania State Police instructed their lab

technicians to identify substances containing THC as marijuana or provide

the numerical value of THC in a substance within their reports, the practices

of the State Police Defendants would not have led law enforcement agencies

to “arrest[] individuals who possess[ed] Hemp or CBD” without probable

cause. Therefore, Plaintiff’s Monell claim against defendant Pennsylvania

State Police will be dismissed.

C. Claims Under Pennsylvania State Law

The Plaintiff raised four separate claims under state law through his

amended complaint, including claims for false arrest and malicious

prosecution against defendant Gula and claims for fraud and civil conspiracy

against defendant Force. Plaintiff thereafter agreed to dismiss his claims

against defendant Force for fraud and civil conspiracy. Thus, only Plaintiff’s

state-law claims for false arrest and malicious prosecution as to defendant

Gula remain.

Under Pennsylvania law, claims for false arrest and false imprisonment

are “essentially the same actions.” Pellegrino v. U.S. Transp. Sec. Admin.,

855 F.Supp.2d 343, 357 (E.D. Pa. 2012) (internal quotation omitted);

Gagliardi v. Lynn, 285 A.2d 109, 111-12 (Pa. 1971). Though the fundamental

elements for a claim of false arrest and false imprisonment may have slight

variations, a plaintiff must prove: “(1) the detention of another person (2) that

is unlawful.” Braswell v. Wollard, 243 A.3d 973, 979 (Pa. Super. Ct. 2020)

(citing Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Commw. Ct. 2010);

see also Kintzel v. Kleeman, 965 F.Supp.2d 601, 608 (M.D. Pa. 2013).

Detention of an individual by a state officer who did not possess probable

cause could be unlawful. See Renk v. City of Pittsburgh, 641 A.2d 289, 293

(Pa. 1994). “An arrest based upon probable cause would be justified,

however, regardless of whether the individual arrested was guilty or not.” Id.

(citing Fagan v. Pittsburgh Terminal Coal Corporation, 149 A. 159 (Pa.

1930)).

In contrast, to prevail on a malicious prosecution claim under

Pennsylvania law, a plaintiff must prove that “the defendant (1) instituted

proceedings against the plaintiff, (2) without probable cause, (3) with malice,

and (4) that the proceedings were terminated in favor of the plaintiff.”

Corrigan v. Cent. Tax Bureau of Pa., Inc., 828 A.2d 502, 505 (Pa. Commw.

Ct. 2003) (citing Turano v. Hunt, 631 A.2d 822, 824 (Pa. Commw. Ct. 1993)).

A state-law cause of action for malicious prosecution thus includes the same

first four elements as a claim under Section 1983 but does not require

showing a deprivation of liberty. See Napier v. City of New Castle, 407 F.

App’x 578, 583 (3d Cir. 2010) (listing the elements of the Pennsylvania cause

of action for malicious prosecution as enumerated in Corrigan). A state

malicious prosecution claim also does not require that the plaintiff allege a

violation of the United States Constitution or that the defendant was acting

under color of law. But see Milbourne v. Baker, 2012 WL 1889148, at *12

(E.D. Pa. May 23, 2012) (although the elements for malicious prosecution

under state and federal law appear similar, “except for the requirement of a

constitutional violation under §1983,” they also “differ in substance”).

Defendant Gula does not contest Plaintiff’s claim that Plaintiff was

detained or that proceedings were initiated against him. As described above,

however, defendant Gula possessed probable cause to effectuate an arrest

as to Plaintiff. Though the charges against Plaintiff were eventually dropped,

it is unquestionable based on the Plaintiff’s allegations that defendant Gula’s

arrest of Plaintiff was reasonably justified. The City Defendants’ motion to

dismiss Plaintiff’s state-law claims for false arrest and malicious prosecution

as to defendant Gula will thus be granted.

D. Immunity as to the State Police Defendants and City Defendants

In addition to the State Police Defendants and City Defendants’

arguments that Plaintiff failed to sufficiently state claims upon which relief

may be granted, they also assert that they are entitled to immunity from suit.

For those acting “under cover of law,” the doctrine of immunity embodies the

“right not to stand trial,” In re Montgomery County, 215 F.3d 367, 373 (3d Cir.

2000) (citing Mitchell v. Forsyth, 472 U.S. 511, 525 (1985)), and may be

properly raised in a Rule 12(b)(6) motion to dismiss, Kulwicki v. Dawson, 969

F.2d 1454, 1461-62 (3d Cir. 1992). Immunity not only reflects a defense to

liability, but “immunity from suit.” Hunter v. Bryant, 502 U.S. 224, 227 (1991).

Notably, the State Police Defendants and City Defendants argue that

they are entitled to qualified immunity, which “shields government officials

from civil damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of the challenged

conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012); see also Saucier v.

Katz, 533 U.S. 194 (2001) (for qualified immunity, courts will determine: (1)

whether the plaintiff has shown facts that make out a constitutional rights

violation, and if so, (2) whether those rights were “clearly established” at the

time of the incident). The State Police Defendants, in addition to their

uncontested assertion of sovereign immunity as to Plaintiff’s state-law claims

against defendant Force, further argue that Eleventh Amendment immunity

applies to Plaintiff’s Monell claim against defendant Pennsylvania State

Police.

Courts may only grant a 12(b)(6) motion to dismiss based on immunity

if such immunity “clearly appear on the face of the complaint.” Rivera-

Guadalupe, 2020 WL 4206209, at *4 (quoting Wilson v. Rackmill, 878 F.2d

772, 776 (3d Cir. 1989)); see also Weimer v. Cty. of Fayette, Pennsylvania,

972 F.3d 177, 187 (3d Cir. 2020) (conduct covered by immunity must “‘clearly

appear on the face of the complaint’” (citing Fogle v. Sokol, 957 F.3d 148,

161 (3d Cir. 2020))). It is, however, “generally unwise to venture into a

qualified immunity analysis at the pleading stage as it is necessary to

develop the factual record in the vast majority of cases.” Newland v.

Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009); but see Campeggio v.

Upper Pottsgrove Twp., 2014 WL 4435396, at *10 (E.D. Pa. Sept. 8, 2014)

(noting that as qualified immunity is an immunity from suit, the Supreme

Court has “repeatedly ... stressed the importance of resolving immunity

questions at the earliest possible stage in litigation” (quoting Pearson v.

Callahan, 555 U.S. 223, 231-32 (2009))).

Though an analysis as to whether immunity would apply to the State

Police Defendants and City Defendants would likely unearth grounds upon

which the defendants may find protection from suit, such an inquiry would be

unnecessary at this juncture as Plaintiff has otherwise failed to plead

“enough facts to state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 544; see also Donahue v. Gavin, 280 F.3d 371, 378 (3d Cir.

2002) (“courts must ‘determine first whether the plaintiff has alleged a

deprivation of a constitutional right at all’ when a government official raises

qualified immunity as a defense to an action under §1983” (quoting Cty. of

Sacramento v. Lewis, 523 U.S. 833, 842 n.5 (1998))). This Court will

therefore deny the City Defendants and State Police Defendants’ motions to

dismiss based on immunity in light of the Court’s earlier findings.

IV. CONCLUSION

For the reasons discussed above, the Court will: GRANT the City

Defendants’ motion to dismiss Counts I, II, III, IV, VI, and VII as to defendant

Gula; GRANT the City Defendants’ motion to dismiss Count V as to

defendant City of Scranton; GRANT the State Police Defendants’ motion to

dismiss Counts I, II, III, IX, and X as to defendant Force; and GRANT the

State Police Defendants’ motion to dismiss Count VIII as to defendant

Pennsylvania State Police. A separate order will follow.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Date: August 31, 2021

20-1266-01.wpd