Romero v. Tobyhanna Township, PA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

EMILIO ROMERO, #NW5208,

Plaintiff, CIVIL ACTION NO. 3:19-cv-01038

v. (SAPORITO, M.J.)

TOBYHANNA TOWNSHIP, et al.,

Defendants.

MEMORANDUM

This is a fee-paid federal civil rights action, which commenced when

the plaintiff, Emilio Romero, filed his original pro se complaint on June

19, 2019. (Doc. 1.) At the time of filing, Romero was incarcerated at the

Monroe County Correctional Facility, a local jail located in Monroe

County, Pennsylvania.

On December 6, 2019, now represented by counsel, the plaintiff

filed an amended complaint. (Doc. 40; see also Doc. 37; Doc. 39.) Sorting

themselves into two separately represented groups, the defendants

answered the complaint, and the parties commenced discovery. (See Doc.

46; Doc. 49.)

On October 29, 2020, the County Defendants1 filed a Rule 56 motion

for summary judgment. (Doc. 64; see also Doc. 65; Doc. 70.) On October

30, 2020, the Township Defendants2 filed a Rule 56 motion for summary

judgment. (Doc. 66; see also Doc. 67; Doc. 68; Doc. 69; Doc. 71.) On

December 22, 2020, the plaintiff filed a combined brief in opposition to

both motions for summary judgment. (Doc. 80.) On December 28, 2020,

the County Defendants filed a reply brief in support of their summary

judgment motion. (Doc. 83.) On December 30, 2020, the Township

Defendants filed a reply brief in support of their summary judgment

motion. (Doc. 90.)

Both motions are now ripe for decision.

I. LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary

judgment should be granted only if “there is no genuine dispute as to any

1 The “County Defendants” are: Brian Webbe, a detective with the

Monroe County district attorney’s office; and Michael Rackaczewski, an

assistant district attorney with the Monroe County district attorney’s

office.

2 The “Township Defendants” are: Chris Wagner, chief of the Pocono

Mountain Regional Police Department (“PMRPD”); Lucas Bray, a

detective with PMRPD; and the five municipalities served by PMRPD—

Tobyhanna Township, the Borough of Mount Pocono, Tunkhannock

Township, Coolbaugh Township, and Barrett Township.

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the

outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A dispute of material fact is “genuine” only if the evidence “is such

that a reasonable jury could return a verdict for the non-moving party.”

Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all

inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the

movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell

Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

The party seeking summary judgment “bears the initial

responsibility of informing the district court of the basis for its motion,”

and demonstrating the absence of a genuine dispute of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must set forth specific facts, supported

by the record, demonstrating that “the evidence presents a sufficient

disagreement to require submission to the jury.” Anderson, 477 U.S. at

251–52.

In evaluating a motion for summary judgment, the Court must first

determine if the moving party has made a prima facie showing that it is

entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S.

at 331. Only once that prima facie showing has been made does the

burden shift to the nonmoving party to demonstrate the existence of a

genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477

U.S. at 331.

Both parties may cite to “particular parts of materials in the record,

including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for the

purposes of the motion only), admissions, interrogatory answers or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used

to support or oppose a motion must be made on personal knowledge, set

out facts that would be admissible in evidence, and show that the affiant

or declarant is competent to testify on the matters stated.” Fed. R. Civ.

P. 56(c)(4). “Although evidence may be considered in a form which is

inadmissible at trial, the content of the evidence must be capable of

admission at trial.” Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 599

(M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d

378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary

judgment, to consider evidence that is not admissible at trial).

II. UNDISPUTED MATERIAL FACTS

The material facts of this case are undisputed. See Romero v.

Tobyhanna Twp., Civil Action No. 3:19-cv-01038, 2021 WL 4037837

(M.D. Pa. Sept. 3, 2021) (striking plaintiff’s non-responsive statements of

facts for failure to comply with Local Rule 56.1 and granting unopposed

motions to deem defendants’ statements of material facts admitted), Doc.

97.

In the early hours of June 22, 2017, two non-party PMRPD police

officers—Corporal Mertz and Officer Dunlap—responded to a 9-1-1 call

placed by E.J., the plaintiff’s wife. E.J. told the officers that Romero had

raped and assaulted her at gunpoint after she confronted him about a

“pen camera” she had found in her bedroom. The officers obtained a

signed written statement from E.J., which they later provided to

Detective Bray, the PMRPD detective on call at the time. The officers

transported E.J. to a hospital for a rape examination while Detective

Bray, at the police station, prepared a search warrant application and

contacted his sergeant and other detectives to assist in the investigation.

According to an affidavit of probable cause prepared by Detective Bray

later that same day:

On 6/22/2017 at approximately 0346 hours, PMRPD

Officers were dispatched to respond to 1117

Kensington Road for a reported rape and assault.

Officers arrived on the scene and met with the victim,

identified a[s] EJ. She reported that she was raped at

gun point and assaulted by her husband Emilio

Romero. She provided the following statement to

police:

“At around 8:30 PM I found a camera pen in my room

and confronted Emilio Romero about putting the

camera in my room and a slight argument happened. I

came out of my room to go to the bathroom and Emilio

Romero was standing in the hallway and I asked him

why was he standing in the hallway and he pulled out

a big black gun and pointed it at me and demanded me

to go in my bedroom. He put the gun on the back of my

head and made me go into my bedroom. I went in the

bedroom and he kept telling me he was going to kill me.

After repeated threats he put the gun to the back of my

head thru a pillow and pulled the trigger. Nothing

happened and he told me I was lucky that time. He

demanded me to remove my clothes while pointing the

gun at me. I was begging him no[t] to but he kept

threatening me. Then my daughter kept texting me

and he went to go check on her. At that time I locked

the door and pretended to call the police, then he came

and busted the door down acting like he was going to

hit me with the gun. Then he proceeded to take my

clothes off made me get on my bed and proceeded to

rape me while I cried. He started recording it on his

phone then he made me turn around and he started to

rape me from behind threatening to go in my anus all

while he recorded it on his phone. Then he ejaculated

in me and let me go. I wiped his cum off with my

panties and went in the bathroom and cleaned up.”

EJ advised that she waited until Romero left for

work to contact police. She advised that he works in NY

and left early this morning in his silver Acura bearing

pa tag # KJZ2124 to go to work and she was not sure if

he left with the gun or not. She advised that he has a

safe in his room and the gun could be in there.

She also believed that he was not legally allowed to

possess firearms. She also showed police where there is

a doorbell camera and advised that he has surveillance

set up in the house but she is unaware of where all the

cameras are and believed that the[y] send video or

pictures to his cellular phone. EJ’s 8 year old daughter

was also interviewed by police and corroborated he[r]

mother[’]s statement. We also viewed the text

communication from her that was mentioned earlier in

her statement. Following the rape and Romero’s

arrival at work in NY, he has texted [EJ] and sent

video[]s of himself at work from his cellular phone. EJ

was transported to the emergency room for a rape

exam. EJ provided voluntary consent to search the

residence, however after consultation with ADA

Bernal, it was decided that a search warrant

application be prepared.

Officers secured the scene and I prepared the search

warrant application. A criminal history check on

Emilio Romero revealed an extensive and extremely

violent history which included arrests for homicide and

drug trafficking offenses. It also shows that he has a

previous alias/aka as “LEADPIPE Romero”. His arrest

record included the following:

On December 29, 1991, Romero was charged by

NYCPD with Murder with intention, Criminal

possession of a dangerous weapon, criminal use of a

firearm, and reckless endangerment. Disposition for

the above case was unreported. On February 8, 1994,

Romero was charged by the Buffalo City Police

Department for the following: Criminal possession of a

controlled substance with intent to sell, Criminal use

of drug paraphernalia and criminal possession

controlled substance. Disposition for the above case

was unreported. On September 1, 1995, Romero was

charged by the NYCPD for the following: Murder with

intention, Criminal possession of a weapon, and

Assault with intent to cause serious injury with a

weapon. Dispostion: On September 27, 1995[,]

Rome[r]o plead[ed] guilty to Murder with intention, a

felony],] and [was] sentenced to 2 years to 6 years. On

May 22, 2001, Romero was charged by the NY FBI for

Drug Conspiracy. The disposition [was] guilty. Both of

his apparent convictions would disqualify Romero from

firearm possession in Pennsylvania under 18 CSA 6105

Persons not to possess firearms, making it illegal for

him to have any guns in the home.

A search warrant for the Romero/EJ home was

reviewed and approved by ADA Bernal and taken

before MDJ Fluegel. MDJ Fluegel issued the search

warrant and at approximately 1000 hours Detectives

Bohelm, Venneman, and Officer Vacarro assisted me

with its execution. I photographed the scene using

digital photography and the pictures will be

downloaded to the server. I noted the doorbell camera

as we[] entered the homje by the front door. Inside the

home I also noted damage to a doorway that was

broken during the rape and assault incident. We

located a black beretta replica handgun locked in a

small safe with[]in Romero’s room. We also located the

packaging materials for the gun which evidenced that

he had just recently purchased it. We also located the

packaging for several pieces of covert recording devices,

specifically the pen that was mentioned before by the

victim as well as an electrical outlet hidden video

recorder device, and a light bulb device that was a

surreptitious video recording device that we actually

found installed without EJ[’s] knowledge in her

bedroom. We also located mail packaging materials

from Amazon which showed that he had just purchased

the devices within the past week. We also located

several opened packages for mini sd cards used with

these devices to store the recorded video. We also

located the underwear worn by the victim and secured

them as evidence as well as a dildo that he used on her

during the rape. During the rape exam, EJ provided

further details of the assault which included details

that he touched and kissed her breasts, that there was

an attempted penetration of her anus with his penis,

the use of the dildo that penetrated her vaginally as

well as his penis, and that he had also penetrated her

vaginally with his mouth and tongue. She revealed

that she has been with Romero since she was 20 years

old. They have lived together but in separate rooms for

approximately (7) years now and that Romero has

be[e]n very suspicious and paranoid of her and accused

her of cheating recently. Also of note in the search

warrant findings was that there was an abundance of

several opened and unopened packages of capsules

called “Vshot male endurance formula”, “Stamin” and

“Herb Viagra”, taken to produce erectile stamina. Also

located were (5) xanex bars and (2) partial bars found

within a dime size baggie within Romero’s room.

Evidence was collected and logged into PMRPD

evidence by Detective Boheim and prepared for

laboratory analysis with the rape exam evidence.

(Doc. 69-4 (criminal complaint); Doc. 65-1, at 26–34 (same); see also id. at

84 (EJ’s handwritten statement).)

Based on the affidavit of probable cause and the evidence described

within, Detective Bray filed a criminal complaint on June 22, 2017,

charging Romero with rape by force, involuntary deviate sexual

intercourse by forcible compulsion, attempted involuntary deviate sexual

intercourse, aggravated indecent assault without consent, sexual

assault, criminal use of a communication facility, possession of the

instrument of a crime with intent to employ it criminally, terroristic

threats, simple assault, and possession of a controlled substance.3 Prior

to filing the criminal complaint, Bray conferred with ADA Rakaczewski,

who approved the charges based on the information provided by

Detective Bray. Rakaczewski, however, did not participate in the factual

investigation prior to the filing of charges. Detective Webbe did not

participate at all in the filing of criminal charges against Romero.

An arrest warrant for Romero was issued by a state magisterial

district judge on June 22, 2017. Romero was arrested two days later, on

June 24, 2017. He was interviewed by Detective Bray at PMRPD

headquarters. The interview was audio- and videorecorded. Prior to the

interview, Romero was read his Miranda rights, and he waived his rights

and agreed to answer questions. Romero remained in custody throughout

his criminal proceedings because he was unable to post bail.

3 Additional charges appear to have been added at a later date.

On July 5, 2017, Romero appeared before a state magisterial

district judge for a preliminary hearing. ADA Rakaczewski represented

the Commonwealth and Detective Bray provided testimony. The

Commonwealth also presented a video recording of the rape itself,

recovered from Romero’s cellphone. Romero had attempted to delete the

video, but investigators had been able to recover it nonetheless. Based on

this testimony and evidence, the state magisterial district judge found

sufficient evidence to support a prima facie case against Romero and

bound the charges over for trial in the court of common pleas.

Because EJ had reported that Romero filmed her with his

cellphone, PMRPD had enlisted the assistance of Detective Webbe, a

computer forensics expert employed with the county district attorney’s

office. Webbe was retained for the limited purpose of examining Romero’s

cellphone and testifying about his findings at trial. When Webbe

examined Romero’s phone, he was able to recover videos that Romero had

attempted to delete, including video of the rape itself. This and other

videos recovered from the plaintiff’s cellphone were authenticated by

Detective Webbe and played for the jury at Romero’s trial.

The rape video recovered from Romero’s phone shows EJ crying

while Romero filmed himself having sex with her. In the video, Romero

can be heard to say, “I’m trying to save you,” “you needed this,” and “stop

your crying now.” The video depicts Romero threatening EJ multiple

times that “if you cry, I’m going to put it in your butt.” Meanwhile, EJ

cries throughout the video, screams in pain, says multiple times that

“you’re hurting me,” and she says, “I can’t do this.” Detective Webbe

recovered several other graphic videos in which video of EJ was recorded

while she was undressing, seated on the toilet, and unclothed on her bed.

While awaiting trial, Romero filed a motion to compel discovery,

asserting that the Commonwealth had failed to produce all recovered

recordings to the defense. The motion was ultimately denied as moot

after the prosecution provided the requested discovery materials. Prior

to trial, all audio and video recordings recovered from Romero’s cellphone

and other recording devices were produced.

On December 14, 2018, following a multi-day trial, a jury acquitted

Romero of all sex offenses, but found him guilty of criminal use of a

communication facility, possession of the instrument of a crime with

intent to employ it criminally, possession of a controlled substance,

interception of communications, possession of a device for intercepting

communications, invasion of privacy, and tampering with evidence. ADA

Rakaczewski prosecuted the case on behalf of the Commonwealth.

Detective Bray testified regarding his investigation, and Detective

Webbe testified regarding his recovery of deleted videos from Romero’s

cellphone. The rape video and other video evidence was presented to the

jury. Evidence of Romero’s internet search history was presented, which

indicated that Romero had searched for information on Pennsylvania

marital rape laws prior to the incident. Serology reports confirmed the

presence of seminal material on the vaginal and anal swabs taken during

EJ’s rape exam.4 In defense to the rape charges, Romero’s defense

counsel—who is also counsel of record in this case—had argued that the

sex depicted was consensual and just “rough sex.”

On May 3, 2019, the state trial court sentenced Romero to serve five

to twelve years of imprisonment, followed by three years of probation.

Commonwealth v. Romero, Docket No. CP-45-CR-0001534-2017 (Monroe

Cty. (Pa.) C.C.P.), aff’d in part and vacated in part, 251 A.3d 1269 (Pa.

Super. Ct. Mar. 29, 2021), petition for allocatur filed, No. 215 MAL 2021

4 We note that an expert witness also testified at trial that the DNA

profiles extracted from these swabs were consistent with Romero’s DNA

profile. (See Doc. 69-1, at 21–26.)

(Pa. Apr. 28, 2021).5 Romero was given credit for 678 days of time served.6

Id. In addition, the sentencing court ordered Romero to register as a sex

offender under Pennsylvania’s Sex Offender Registration and

Notification Act (“SORNA”). Id. Romero took an appeal to the Superior

Court of Pennsylvania, which vacated the trial court’s order with respect

to SORNA registration, but affirmed Romero’s sentence in all other

respects. Commonwealth v. Romero, 251 A.3d 1269, 2021 WL 1174721

(Pa. Super Ct. Mar. 29, 2021) (unpublished table decision), petition for

allocatur filed, No. 215 MAL 2021 (Pa. Apr. 28, 2021). Romero filed a

petition for allocatur with the Supreme Court of Pennsylvania, which

remains pending. Commonwealth v. Romero, No. 215 MAL 2021 (Pa. filed

Apr. 28, 2021).

At his deposition in this case, Romero conceded that he had no

evidence to support his racial discrimination claims against ADA

Rakazcweski or Detective Webbe, and he testified that he did not recall

5 A district court, of course, may properly take judicial notice of

state court records, as well as its own. See Fed. R. Evid. 201; Sands v.

McCormick, 502 F.3d 263, 268 (3d Cir. 2007); Ernst v. Child & Youth

Servs. of Chester Cty., 108 F.3d 486, 498–99 (3d Cir. 1997); Pennsylvania

v. Brown, 373 F.2d 771, 778 (3d Cir. 1967).

6 This credit covers the entire period between the date of his arrest

on June 24, 2017, and the date of his sentencing on May 3, 2019.

Detective Bray using any racially offensive language but based his

subjective belief that Bray had discriminated against him on the basis of

race on the detective’s statements during interrogation that he believed

Romero was lying, that he believed Romero was guilty, and referencing

Romero’s alleged gang affiliations.

With respect to Romero’s false light tort claims, Detective Webbe

made no statements to the press about the charges against Romero.7 At

his deposition, Romero conceded that he never saw a direct quote in any

newspaper from Detective Bray discussing his case or his alleged guilt,

but rather, any statements by Bray were contained only in legal

pleadings or testimonial evidence.

With respect to Romero’s § 1983 Monell and supervisory liability

claims, Romero adduced no evidence to support such claims, conceding at

deposition that he had no evidence of any particular PMRPD policy or

custom that caused his alleged constitutional injury, nor any evidence of

personal involvement by Chief Wagner other than his general

supervisory role with respect to the police department.

7 Webbe’s only public statements appear to be his testimony at trial.

III. DISCUSSION

Romero has brought this federal civil rights action primarily under

42 U.S.C. § 1983. Section 1983 provides in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, 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. Section 1983 does not create substantive rights, but

instead provides remedies for rights established elsewhere. City of

Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983

claim, a plaintiff must establish that the defendants, acting under color

of state law, deprived the plaintiff of a right secured by the United States

Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995).

Here, the plaintiff has asserted multiple federal civil rights claims,

as well as several supplemental state-law tort claims. In Count I, Romero

has asserted a § 1983 malicious prosecution claim against defendants

Bray, Webbe, and Rakaczewski, asserting that they initiated criminal

proceedings against him without probable cause, in violation of his rights

under the Fourth Amendment.8 In Count II, Romero has asserted equal

protection and racial discrimination claims against Bray and Webbe,

asserting that they initiated criminal proceedings against him based on

his race, in violation of his rights under the equal protection clause of the

Fourteenth Amendment and under 42 U.S.C. § 1981. In Count III,

Romero has asserted municipal and supervisory liability claims against

defendant Wagner and the municipal defendants—Tobyhanna

Township, the Borough of Mount Pocono, Tunkhannock Township,

Coolbaugh Township, and Barrett Township—based on the malicious

prosecution and racial discrimination claims set forth in Counts I and II.

In Counts IV, V, and VI, Romero has asserted state-law false light

invasion of privacy, intentional infliction of emotional distress, and

8 Count I of the amended complaint also references the plaintiff’s

Fourteenth Amendment due process rights, but it is well established that

“it is the Fourth Amendment, not the Fourteenth Amendment, which is

the proper vehicle for addressing any unlawful pretrial deprivations of

liberty incidental to criminal proceedings.” Mekata v. Kamoie, 955 F.

Supp. 2d 345, 365 (M.D. Pa. 2013). This is the “more specific provision”

or “explicit source rule,” derived from the Supreme Court’s decision in

Albright v. Oliver, 510 U.S. 266 (1994). See id. A malicious prosecution

claim under the Fourteenth Amendment due process clause is thus

legally meritless.

common law malicious prosecution tort claims against Bray and Webbe,

based on the initiation of criminal charges against him. For relief,

Romero seeks compensatory and punitive damages.

A. Prosecutorial Immunity

In Count I of the amended complaint, the plaintiff has asserted a

§ 1983 malicious prosecution claim against ADA Rakaczewski. This is the

only claim directed against the prosecutor. The County Defendants have

moved for summary judgment on this claim on the ground that

Rakaczewski is entitled to absolute prosecutorial immunity, and the

plaintiff has expressly conceded this issue in his brief in opposition,

requesting that the court “dismiss the case against Mr. Rackaczewski

[sic].” (See Doc. 80, at 31–32.) Under these circumstances, we find that

the plaintiff has waived his claim against ADA Rakaczewski, entitling

the prosecutor to summary judgment. See Rife v. Borough of Dauphin,

647 F. Supp. 2d 431, 441–42 (M.D. Pa. 2009). Moreover, the plaintiff’s

claim against ADA Rakaczewski is based solely on his conduct as an

advocate in the judicial phase of the criminal process—that is, initiating

a prosecution and presenting the state’s case—and thus the plaintiff’s

§ 1983 claim is indeed barred by absolute prosecutorial immunity. See

Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976); see also Kulwicki v.

Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992) (noting that this absolute

immunity “extends to ‘the preparation necessary to present a case,’ and

this includes the ‘obtaining, reviewing, and evaluation of evidence’”).

Accordingly, the motion for summary judgment will be granted with

respect to the plaintiff’s § 1983 malicious prosecution claim against

defendant Rakaczewski, set forth in Count I of the amended complaint.

B. Witness Immunity

In Counts I and II, IV, V, and VI of the amended complaint, the

plaintiff has asserted various federal civil rights and state-law tort claims

against Detective Webbe. It is undisputed that Webbe played no role in

the initiation of criminal proceedings against the plaintiff, and that his

only role was as a computer forensics expert who recovered and testified

about digital video evidence recorded by the plaintiff on his cellphone.9

The County Defendants have moved for summary judgment on this claim

on the ground that Webbe is entitled to absolute immunity as a court

witness. Based on the undisputed facts of record, it is clear to us that

9 The plaintiff’s claims against Webbe appear to be based primarily

on an allegation that Webbe provided perjured testimony concerning the

chain of custody with respect to Romero’s cellphone.

Detective Webbe is indeed entitled to absolute immunity from these

claims as a matter of law. See Briscoe v. LaHue, 460 U.S. 325, 345–46

(1983); DeBerry v. Younes, 725 Fed. App’x 87, 88 (3d Cir. 2018) (per

curiam).10

Accordingly, the motion for summary judgment will be granted with

respect to the plaintiff’s federal civil rights and state-law tort claims

against defendant Webbe, set forth in Counts I, II, IV, V, and VI of the

amended complaint.

C. Equal Protection

In Count II of the amended complaint, the plaintiff has asserted a

§ 1983 equal protection claim against Detective Bray, asserting that the

charging officer’s conduct violated his Fourteenth Amendment right to

equal protection of the law.

10 The plaintiff’s brief also appears to argue that Detective Webbe

should also be found liable based on the Commonwealth’s initial failure

to disclose certain audio recordings recovered from Romero’s cellphone.

As noted in our recitation of the undisputed material facts, these

recordings were ultimately disclosed to Romero prior to trial. Moreover,

the undisputed facts establish that, as a witness, Detective Webbe

himself had no discovery disclosure obligations whatsoever. But to the

extent Detective Webbe might have had any such obligation, he would be

entitled to absolute quasi-judicial immunity from claims arising from

that obligation as well. See Kamienski v. Ford, 844 Fed. App’x 520, 523

(3d Cir. 2021).

The equal protection clause of the Fourteenth Amendment provides

that “[n]o state shall . . . deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. Amend. XIV. To prevail on an

equal protection claim, a plaintiff must demonstrate that he was treated

differently from persons who are similarly situated, and that this

discrimination was purposeful or intentional rather than incidental. See

City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985);

Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 423–24 (3d Cir.

2000).

Standing alone, the mere fact that these criminal charges were

brought against Romero, an African-American male, is insufficient to

prove discriminatory intent. See Rembert v. Monroe Twp. Bd. of Educ.,

Civil Action No. 95-4818 (JEI), 1997 WL 189318, at *7 (D.N.J. Apr. 14,

1997). Romero must adduce evidence that similarly situated non-African-

American persons have been treated differently, whether by Detective

Bray personally, or by the PMRPD police force in general. Romero has

failed to identify any such evidence, and we are unable to discern any in

the record before us.

Accordingly, the motion for summary judgment will be granted with

respect to the plaintiff’s § 1983 equal protection claim against defendant

Bray, set forth in Count II of the amended complaint.

D. Section 1981 Claim

In Count II of the amended complaint, the plaintiff has also

asserted a § 1981 racial discrimination claim against Detective Bray,

asserting that the charging officer’s racially discriminatory conduct has

denied Romero the full and equal benefit of the laws as is enjoyed by

white persons, and inflicted punishment or penalties beyond those to

which white persons are subject.

Section 1981 was enacted to “protect[] against discrimination on the

basis of race or alienage.” Bell v. City of Milwaukee, 746 F.2d 1205, 1232

(7th Cir. 1984), overruled on other grounds by Russ v. Watts, 414 F.3d 783

(7th Cir. 2005). The statute provides that:

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory

to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws

and proceedings for the security of persons and

property as is enjoyed by white citizens, and shall be

subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981(a).

“To establish a right to relief under § 1981, a plaintiff must show

(1) that he belongs to a racial minority; (2) ‘an intent to discriminate on

the basis of race by the defendant; and (3) discrimination concerning one

or more of the activities enumerated in’ § 1981 . . . .” Pryor v. Nat’l

Collegiate Athletic Ass’n, 288 F.3d 548, 569 (3d Cir. 2002). “Section 1981

is not confined to contractual matters, though it is most often invoked in

that context. It deals with the protection of a limited range of civil rights,

including the right to make and enforce contracts, to sue, and to give

evidence.” Bell, 746 F.2d at 1232 (citation omitted). It also guarantees a

right to equal benefit of the laws and to like punishment, irrespective of

race. See Mahone v. Waddle, 564 F.2d 1018, 1027–28 (3d Cir. 1977); Grier

v. Galinac, 740 F. Supp. 338, 341–43 (M.D. Pa. 1990) (addressing § 1981

claim that plaintiff would not have been stopped and questioned by police

defendants if he had been white).

“To prevail on a claim under 42 U.S.C. § 1981, the plaintiff must

present evidence of defendant’s discriminatory intent, as that section

reaches only purposeful discrimination.” See Taylor v. City of St. Louis,

702 F.2d 695, 697 (8th Cir. 1983) (per curiam). As with his equal

protection claim, the single incident involving Romero himself is

insufficient to prove discriminatory intent under § 1981. See Rembert,

1997 WL 189318, at *7. Romero has failed to identify any other facts or

evidence whatsoever to support his § 1981 claim.

Accordingly, the motion for summary judgment will be granted with

respect to the plaintiff’s § 1981 racial discrimination claim against

defendant Bray, set forth in Count II of the amended complaint.

E. Malicious Prosecution

In Count I of the amended complaint, the plaintiff has asserted a

§ 1983 malicious prosecution claim against Detective Bray, asserting

that Bray initiated criminal proceedings against him without probable

cause, in violation of his Fourth Amendment right to be free from

unreasonable seizures, and the plaintiff has asserted a parallel common

law malicious prosecution claim against the detective in Count VI. In

particular, Romero claims that Bray lacked probable cause to charge him

with rape and other sex offenses for which Romero was ultimately

acquitted following a jury trial. Romero was convicted, however, of

several other felony and misdemeanor offenses arising out of the same

offense conduct, for which he was sentenced and continues to serve a term

of years of imprisonment. He has appealed his sentence, and that appeal

remains pending before the state appellate courts.

To succeed on a malicious prosecution claim under 42 U.S.C.

§ 1983, Romero must show that: (1) Bray initiated a criminal proceeding;

(2) the criminal proceeding ended in Romero’s favor; (3) the proceeding

was initiated without probable cause; (4) Bray acted maliciously or for a

purpose other than bringing Romero to justice; and (5) Romero suffered

deprivation of liberty consistent with the concept of seizure as a

consequence of a legal proceeding. See Estate of Smith v. Marasco, 318

F.3d 497, 521 (3d Cir. 2003). A Pennsylvania state-law claim for

malicious prosecution parallels the federal § 1983 claim, requiring proof

of the first four elements. See Kossler v. Crisanti, 564 F.3d 181, 186 n.2

(3d Cir. 2009) (en banc); Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782,

791 (3d Cir. 2000). Here, the plaintiff’s claim founders on all but the

second factor.

First, Romero has failed to establish that he was seized within the

meaning of the Fourth Amendment as a consequence of the rape and sex

offense charges for which he was eventually acquitted.11 It is beyond

dispute that, while Romero was acquitted of the sex offenses with which

he was charged, he was convicted by that same jury of several other

11 This factor is applicable to the federal § 1983 claim only.

felony and misdemeanor offenses arising out of the very same nexus of

facts. He was sentenced to imprisonment for a period of years, and his

entire period of pretrial detention was credited toward that sentence.

Although subject to a pending state court appeal, Romero remains

currently imprisoned, serving that still-valid criminal sentence. Because

he was found guilty of these other charges and his entire period of

incarceration is attributed to that still-valid sentence, his pretrial and

post-conviction incarceration simply do not constitute a seizure as a

consequence of the rape and sex offense charges for he was acquitted. See

Shelley v. Wilson, 152 Fed. App’x 126, 128–29 (3d Cir. 2005) (per curiam).

Second, in cases where a plaintiff has sued a police officer for

malicious prosecution, the plaintiff bears the burden of showing that the

police officer “initiated” the criminal proceedings being challenged.

Weaver v. Beveridge, No. 09-CV-2357, 2012 WL 7964544, at *7 (M.D. Pa.

Sept. 12, 2012). This is because, in the typical case, it is a prosecutor, not

a police officer, who “initiates” criminal proceedings against an

individual. Id. As we have previously held, “a plaintiff can only proceed

against a police officer under a malicious prosecution theory if the officer

knowingly provided false information to the prosecutor or otherwise

interfered with the prosecutor’s informed discretion.” Id. (citing

Domenech v. City of Philadelphia, No. 06-1325, 2009 WL 1109316, *8

(E.D. Pa. Apr. 23, 2009) (internal quotation marks omitted)); see also

Merrero v. Micewski, No. 96–8534, 1998 WL 414724, at *6–*7 (E.D. Pa.

July 22, 1998) (“A police officer may only be held to have ‘initiated’ a

criminal proceeding if he knowingly provided false information to the

prosecutor or otherwise interfered with the prosecutor’s informed

discretion.”). Here, Romero has failed to adduce any evidence whatsoever

that Detective Bray provided false information—knowingly or not—to

the prosecutor, ADA Rakaczewski, nor that he otherwise interfered in

the prosecutor’s informed discretion. Romero has relied exclusively on his

own subjective belief that the victim statement given to police by EJ was

inherently unbelievable—a characterization we find that no reasonable

jury could embrace.12

Third, Romero has failed to adduce any evidence whatsoever that

12 As discussed more fully below, the premise of the plaintiff’s claim

is that later-acquired evidence sufficiently undermined the credibility of

EJ’s account of events to permit a jury to find him not guilty of rape and

other sex offense charges against him. But that evidence was not

available to inform the affidavit of probable cause prepared by Detective

Bray for ADA Rakaczewski’s review and approval on June 22, 2017.

Detective Bray initiated criminal proceedings against Romero out of

malice or for a purpose other than bringing Romero to justice. As

discussed below, the facts ascertained by Detective Bray in his initial

investigation, leading up to preparation of his affidavit of probable cause

on June 22, 2017, clearly provide probable cause for the rape and sex

offense charges set out in the criminal complaint. Detective Bray has

attested in his affidavit that he prepared the criminal complaint and

affidavit of probable cause in good faith, based on the facts and

circumstances made known to him and his fellow police officers through

their reasonable initial investigation. He has attested that he had no

prior exposure to Romero, and thus no malice toward him, and that

Romero’s race was not a factor at all in Bray’s role in the criminal

prosecution. Romero has failed to point to any contrary evidence at all.

Finally, it is clear from the record on summary judgment that, on

June 22, 2017, authorities had probable cause to initiate the criminal

proceedings against Romero. “The proper inquiry in a section 1983 claim

based on false arrest or misuse of the criminal process is not whether the

person arrested in fact committed the offense but whether the arresting

officers had probable cause to believe the person arrested had committed

the offense.” Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir.

1988). “[P]robable cause . . . exists when the facts and circumstances

within the [charging] officer’s knowledge are sufficient in themselves to

warrant a reasonable person to believe that an offense has been or is

being committed by the person to be [charged].” Dempsey v. Bucknell

Univ., 834 F.3d 457, 467 (3d Cir. 2016); see also Wilson v. Russo, 212 F.3d

781, 789 (3d Cir. 2000) (“Probable cause exists if there is a ‘fair

probability’ that the person committed the crime at issue.”); Merkle, 211

F.3d at 789 (noting that probable cause is “defined in terms and

circumstances sufficient to warrant a prudent man in believing that the

suspect had committed or was committing a crime”). Whether the

plaintiff actually committed the charged offense or was acquitted of the

charge is irrelevant to a probable cause analysis. See Wright v. City of

Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (noting that the

evidentiary standard for probable cause is “significantly lower than the

standard which is required for conviction”).

As the Supreme Court has observed, “in dealing with

probable cause, as the very name implies, we deal with

probabilities. These are not technical; they are the

factual and practical considerations of everyday life on

which reasonable and prudent men, not legal

technicians, act.” For this reason, the Court has

eschewed “any rigid demand that specific ‘tests’ be

satisfied” and has instead prescribed a “totality-of-the-

circumstances approach” to the probable cause

determination. That determination is necessarily fact-

intensive, and it will usually be appropriate for a jury

to determine whether probable cause existed.

Nevertheless, summary judgment may be granted on

the question of probable cause if a court concludes that

“the evidence, viewed most favorably to the nonmoving

party, reasonably would not support a contrary factual

finding.”

Dempsey, 834 F.3d at 467–68 (quoting Illinois v. Gates, 462 U.S. 213,

230–31 (1983), and Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir.

1997)) (brackets and ellipsis omitted).

Here, Detective Bray prepared the criminal complaint and his

affidavit of probable cause in support based on a detailed statement by

the victim, alleging that Romero had brandished a gun and sexually

assaulted her. She specifically identified her husband, Romero, as her

attacker. Police officers interviewed the victim’s minor daughter, who

was present in the home at the time of the incident, and the daughter

corroborated her mother’s statement. Police reviewed text messages on

the victim’s cellphone that further corroborated her account of events. A

review of Romero’s criminal background revealed a history of violent

crime and that he was a felon prohibited from legal possession of a

firearm. After a search warrant was obtained, police found surveillance

equipment, damage to a doorway, a replica handgun, the victim’s

underwear, and a sex toy—all consistent with the victim’s description of

the incident—as well as a quantity of illegal controlled substances. The

victim underwent a rape exam at a hospital, during which she provided

additional details about the incident. At the time of this initial

investigation, which preceded the initiation of criminal proceedings by a

matter of hours, the investigating officers had no reason to disbelieve her.

They were unaware of any inconsistent evidence, and there was nothing

to suggest that she was an unreliable witness. Absent “[i]ndependent

exculpatory evidence or substantial evidence of the witness’s own

unreliability that is known by the arresting officers” to outweigh it, “a

positive identification by a victim witness, without more, would usually

be sufficient to establish probable cause.” Wilson, 212 F.3d at 790; see

also Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997) (“When a police

officer has received a reliable identification by a victim of his or her

attacker, the police have probable cause to arrest.”) (assault victim

identified her husband as attacker).

The plaintiff suggests that probable cause was lacking because

Detective Bray failed to investigate further and consider the audio and

video recordings, and other evidence, that ultimately led a jury to acquit

him on the rape and other sex offenses charges. But police have no

obligation to obtain exculpatory evidence prior to initiating a criminal

proceeding where the arresting officer was unaware of it at the time of

charging. See Waters v. Cheltenham Twp., 700 Fed. App’x 149, 153 (3d

Cir. 2017) (“[E]ven though the footage ultimately led to the withdrawal

of criminal charges, we still determine whether the proceeding was

initiated without probable cause ‘based on the information available to

officers at the time the arrest warrant was sought.’”) (brackets omitted);

see also Dempsey, 834 F.3d at 471 (“[W]e look only to the information

available to the officer at the time of the swearing of the affidavit of

probable cause.”); Merkle, 211 F.3d at 790 n.8 (“[The arresting officer]

was not required to undertake an exhaustive investigation in order to

validate the probable cause that, in his mind, already existed.”);

Rodriguez v. Scranton Police Dep’t, No. 3:10cv2022, 2013 WL 74292, at

*9 (M.D. Pa. Jan. 4, 2013) (“[T]he mere absence of specific types of

incriminating evidence, such as forensic evidence or third-party

eyewitnesses, does not negate the probable cause established by other

types of incriminating evidence.”); cf. Patterson v. Sch. Dist. of

Philadelphia, No. 99-CV-4792, 2000 WL 1020332, at *6 (E.D. Pa. July 19,

2000) (“Once a police officer has discovered sufficient facts to establish

probable cause, the officer has no constitutional duty to further

investigate in hopes of finding exculpatory evidence.”).

Viewing the evidence in the light most favorable to the plaintiff, we

find that, based on the evidence known to Detective Bray at the time

when he prepared the criminal complaint, no reasonable jury could find

that defendant Bray lacked probable cause to initiate criminal

proceedings against the plaintiff.

Accordingly, the motion for summary judgment will be granted with

respect to the plaintiff’s § 1983 and state-law malicious prosecution

claims against defendant Bray, set forth in Counts I and VI of the

amended complaint.

F. Municipal Liability

In Count III of the amended complaint, the plaintiff seeks to hold

Detective Bray’s municipal employers liable for the alleged constitutional

violations as well.

“On its face, § 1983 makes liable ‘every person’ who deprives

another of civil rights under color of state law.” Burns v. Reid, 500 U.S.

478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In

Monell v. Department of Social Services, 436 U.S. 658 (1978), the

Supreme Court of the United States established that municipalities and

other local governmental units are included among those “persons”

subject to liability under § 1983. Id. at 690.

But “[u]nder Monell, a municipality cannot be subjected to liability

solely because injuries were inflicted by its agents or employees.” Jiminez

v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007).

Rather, a municipality can be liable under § 1983 only if the conduct

alleged to be unconstitutional either “implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers” or is “visited pursuant to

governmental ‘custom’ even though such a custom has not received

formal approval through the body’s official decision-making channels.”

Monell, 436 U.S. at 690–91. “[I]t is when execution of a government’s

policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible under § 1983.”

Jiminez, 503 F.3d at 249. “A plaintiff must identify the challenged policy,

attribute it to the [municipality] itself, and show a causal link between

execution of the policy and the injury suffered.” Losch v. Borough of

Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). Alternatively, “[a]

municipality may be held liable under § 1983 for failure to train, monitor,

or supervise, [but] only where the plaintiff can ‘identify a failure to

provide specific training that has a causal nexus with their injuries and

must demonstrate that the absence of that specific training can

reasonably be said to reflect a deliberate indifference to whether the

alleged constitutional deprivations occurred.’” Watson, 629 F. Supp. 2d at

487 (quoting Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005)); see also

Nawuoh, 802 F. Supp. 2d at 645 (“While municipal liability under § 1983

originally hinged on affirmative policies, or customs, modern

jurisprudence has extended it to a [municipality]’s failure to train,

supervise and discipline its officers.”).

The plaintiff in this case has failed to identify any affirmative policy

or custom adopted or promulgated by PMRPD or its sponsoring

municipalities. Although the amended complaint does allege, in cursory

fashion, that PMRPD and its sponsoring municipalities failed to

adequately train, monitor, and supervise their employees, Romero has

failed to adduce any evidence regarding specific training, or its absence,

that can be said to have caused the alleged constitutional violations.

Moreover, Romero has failed to adduce any evidence from which a

reasonable factfinder might infer actual or constructive knowledge by

municipal policymakers of a previous pattern of similar violations, or of

the allegedly inadequate training—a prerequisite to imposing § 1983

liability on a municipality. See Colburn v. Upper Darby Twp., 838 F.2d

663, 672 (3d Cir. 1988); see also Oklahoma City v. Tuttle, 471 U.S. 808,

823–24 (1985) (“[A] single incident of unconstitutional activity is not

sufficient to impose liability under Monell, unless proof of the incident

includes proof that it was caused by an existing, unconstitutional

municipal policy, which policy can be attributed to a municipal

policymaker.”); Brown v. City of Pittsburgh, 586 F.3d 263, 292–93 (3d Cir.

2009) (recognizing that where no explicit policy is identified, “‘more proof

than the single incident will be necessary’ to establish a causal

connection between the incident and some municipal policy”).

Moreover, “for there to be municipal liability, there . . . must be a

violation of the plaintiff’s constitutional rights.” Brown v. Pa. Dep’t of

Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir.

2003). Because Romero has failed to establish a federal civil rights claim

against Detective Bray or any other individual employee of PMRPD, he

simply cannot, as a matter of law, establish a Monell municipal liability

claim against the municipal defendants—Tobyhanna Township, the

Borough of Mount Pocono, Tunkhannock Township, Coolbaugh

Township, and Barrett Township. See id.; Startzell v. City of

Philadelphia, Pa., 533 F.3d 183, 204 (3d Cir. 2008).

Accordingly, the motion for summary judgment will be granted with

respect to the plaintiff’s § 1983 Monell municipal liability claims against

defendants Tobyhanna Township, the Borough of Mount Pocono,

Tunkhannock Township, Coolbaugh Township, and Barrett Township,

set forth in Count III of the amended complaint.

G. Supervisory Liability

In Count III of the amended complaint, the plaintiff also seeks to

hold Chief Wagner liable for the alleged constitutional violations, based

on his role as the PMRPD chief of police.

But it is well-established that “[c]ivil rights claims cannot be

premised on a theory of respondeat superior. Rather, each named

defendant must be shown . . . to have been personally involved in the

events or occurrences which underlie a claim.” Millbrook v. United States,

8 F. Supp. 3d 601, 613 (M.D. Pa. 2014) (citation omitted). “A defendant

in a civil rights action must have personal involvement in the alleged

wrongs to be liable, and cannot be held responsible for a constitutional

violation which he or she neither participated in nor approved.” Baraka

v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007).

Typically, personal involvement may be established through: (1)

personal direction or actual participation by the defendant in the

misconduct; or (2) knowledge of and acquiescence in the misconduct. Id.

Romero has failed to adduce any evidence whatsoever that Chief Wagner

personally directed or actually participated in the investigation or

charging decision, nor has he adduced any evidence that Chief Wagner

contemporaneously knew of and acquiesced in this conduct by Detective

Bray or other PMRPD employees. As previously explained by the Third

Circuit:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs . . . . [P]ersonal

involvement can be shown through allegations of

personal direction or of actual knowledge and

acquiescence. Allegations of participation or actual

knowledge and acquiescence, however, must be made

with appropriate particularity.

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Alternatively, § 1983 liability may result if a supervising defendant

caused a subordinate to violate another’s constitutional rights through

the execution of an official policy or settled informal custom. See Sample

v. Diecks, 885 F.2d 1099, 1117–18 (3d Cir. 1989).

[T]o hold a supervisor liable because his policies or

practices led to [a constitutional] violation, the plaintiff

must identify a specific policy or practice that the

supervisor failed to employ and show that: (1) the

existing policy or practice created an unreasonable risk

of the [constitutional] injury; (2) the supervisor was

aware that the unreasonable risk was created; (3) the

supervisor was indifferent to that risk; and (4) the

injury resulted from the policy or practice.

Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001) (citing Sample,

885 F.2d at 1118). But as noted above, Romero has failed to establish the

existence of a policy, practice, or custom of any sort with respect to the

the alleged constitutional violations. Moreover, Romero has failed to

adduce any evidence to establish that Chief Wagner was aware of any

unreasonable risk that his subordinates might violate the constitutional

rights of a suspect in circumstances similar to those of the plaintiff, that

he was indifferent to such a risk, or that any injury actually resulted from

such conduct. See Doneker v. Cty. of Bucks, Civil Action No. 13-1534, 2014

WL 2586968, at *7–*11 (E.D. Pa. June 10, 2014).

Accordingly, the motion for summary judgment will be granted with

respect to the plaintiff’s § 1983 supervisory liability claim against

defendant Wagner, set forth in Count III of the amended complaint.

H. False Light

In Count IV of the amended complaint, the plaintiff has asserted a

state-law false light tort claim against Detective Bray, asserting that the

detective’s initiation of rape and sex offense charges against Romero

without probable cause, which was then depicted in local media, placed

Romero in a false light before the public.

To establish a claim for false light liability in Pennsylvania, a

plaintiff must show that: (1) the defendant published material that is not

true; (2) the material is highly offensive to a reasonable person; and (3)

the defendant acted with knowledge or in reckless disregard of the falsity

of the material or the false light in which it would place the plaintiff. See

Anderson v. Perez, 677 Fed. App’x 49, 52 (3d Cir. 2017). “Mere negligence

is not enough to support a claim for false light invasion of privacy.” Id. at

52–53. Alternatively, under Pennsylvania law, a false light claim can be

supported by proof of the publication of information that, while itself

true, tends to imply something false. See Larsen v. Philadelphia

Newspapers, Inc., 543 A.2d 1181, 1189 (Pa. Super. Ct. 1988). To prevail

under such a theory, a plaintiff must establish that the defendant created

a false impression by knowingly or recklessly publicizing selective pieces

of true information. See id.

The plaintiff’s false light claim is explicitly premised upon a lack of

probable cause for the rape and sex offense charges that were brought

against him. As we have found, however, even when viewed in the light

most favorable to the plaintiff, the facts of record clearly establish that

Detective Bray had probable cause to initiate criminal proceedings

against Romero for rape and other sex offenses, and no reasonable jury

could find otherwise. Moreover, the plaintiff has failed utterly to adduce

any evidence that, in doing so, Detective Bray acted with knowledge or

in reckless disregard for the falsity of the information conveyed in the

criminal complaint, nor that he knowingly or recklessly publicized

selective pieces of true information to place the plaintiff in a false light.

Accordingly, the motion for summary judgment will be granted with

respect to the plaintiff’s state-law false light tort claim against defendant

Bray, set forth in Count IV of the amended complaint.

I. Intentional Infliction of Emotional Distress

In Count V of the amended complaint, the plaintiff has asserted a

state-law intentional infliction of emotional distress tort claim against

Detective Bray, asserting that unspecified conduct by this defendant was

outrageous, intentional or reckless, and caused Romero to suffer

emotional distress.

Under Pennsylvania law, to prevail on an intentional infliction of

emotional distress claim, a plaintiff must show that: (1) the conduct of

defendant was intentional or reckless; (2) the conduct of defendant was

extreme and outrageous; (3) defendant’s conduct caused emotional

distress; and (4) the distress was severe. Sabo v. UPMC Altoona, 386 F.

Supp. 3d 530, 556 (W.D. Pa. 2019). The defendant’s conduct “must be 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). Thus, “only the most egregious conduct” is sufficient, and liability

under this cause of action is “reserved by the courts for only the most

clearly desperate and ultra extreme conduct.” Id.

Here, Romero has failed to adduce any evidence whatsoever that

Detective Bray intentionally lied in his affidavit of probable cause or

otherwise sought to initiate criminal proceedings against Romero for

rape and other sex offenses despite knowing there was no probable cause.

See Anderson, 677 Fed. App’x at 53. Indeed, as we have already found,

even when viewed in the light most favorable to the plaintiff, the evidence

of record clearly demonstrates that Bray did indeed have probable cause

to bring these charges against Romero.

Moreover, as the Township Defendants have noted in their briefs,

Romero has failed to adduce any objective evidence at all that he suffered

severe emotional distress as a result of the criminal proceedings. See

Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988, 995 (Pa. 1987)

(“Given the advanced state of medical science, it is unwise and

unnecessary to permit recovery [for intentional infliction of emotional

distress] to be predicated on an inference based on the defendant’s

‘outrageousness’ without expert medical confirmation that the plaintiff

actually suffered the claimed distress.”).

Accordingly, the motion for summary judgment will be granted with

respect to the plaintiff’s state-law intentional infliction of emotional

distress tort claim against defendant Bray, set forth in Count V of the

amended complaint.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motions for summary

judgment will be granted.

An appropriate order follows.

Dated: September 13, 2021 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge