The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL KREISCHER,
Plaintiff, CIVIL ACTION NO. 3:21-cv-00221
v. (SAPORITO, M.J.)
E. DAVID CHRISTINE, JR., et al.,
Defendant.
MEMORANDUM
This case is assigned to us upon consent of the parties, pursuant to
28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure.
(Doc.11.) The matter is now before the court on the defendants’ motion
to dismiss. (Doc. 6). The plaintiff, Michael Kreischer, initiated this action
by the filing of a complaint on February 8, 2021. In the complaint,
Kreischer asserts claims for a Fourteenth Amendment violation under 42
U.S.C. § 1983, and state law defamation and civil conspiracy.
In the defendants’ motion to dismiss, they seek dismissal of the
plaintiff’s § 1983 defamation claims, his claims against the defendants in
their official capacities, and his request for punitive damages against the
defendants in their official capacities.
For the reasons set forth herein, we will grant the motion in part
and deny it in part.
I. Statement of Facts
Kreischer was a county detective in the Monroe County District
Attorney’s Office from September 2016 to March 1, 2019. Kreischer
alleges that his termination from employment occurred because he
repeatedly complained about wrongdoing and illegal conduct within the
district attorney’s office. Kreischer named as defendants District
Attorney E. David Christine, Assistant District Attorney Michael
Mancuso, and county detectives Eric Kerchner, Mario Orlando, and
Wendy Bentzonie Serfass.
In his complaint, Kreischer alleges that in February 2019, he
complained to his supervisors that his fellow county detectives smoked
seized contraband cigarettes, rather than destroy them. (Doc. 1 ¶ 13).
He also complained to his supervisors that the district attorney’s office
failed to comply with state law and regulations regarding accessing and
maintaining files related to gang activity. (Id. ¶ 14).
On March 1, 2019, Kreischer received a text message from Chief
Detective Kerchner advising him that his employment was terminated.
(Id. ¶ 30). Kreischer filed an application for unemployment compensation
benefits with the Commonwealth of Pennsylvania. In late March 2019,
Kreischer was informed by a representative of the Pennsylvania
Department of Labor that his employment was terminated for aiding and
abetting a fugitive, but the district attorney’s office did not provide
confirming documentation to support that allegation. (Id. ¶ 35).
Kreischer also alleged that his application for unemployment
compensation benefits was opposed because he allegedly assisted a
woman named “Jessica” who was purportedly wanted by the police.
Kreischer further alleged that Jessica saved his life in an incident
involving gang activity and he helped her obtain housing and drug
addiction treatment. (Id. ¶ 19). Despite Jessica’s failure to appear for a
court-ordered drug arrest, Kreischer met with her for the purpose of
urging her to report for her drug treatment session. (Id.). He also alleged
that the defendants falsely accused him of having an illicit relationship
with Jessica, for shielding a fugitive, and for refusing to believe his
version of their relationship. (Id. ¶ 20).
In addition, Kreischer alleges in the complaint that the
defendants made defamatory communications about him to third parties
involving alleged illegal misconduct. Specifically, Kreischer alleges that
the defendants publicly asserted to third parties that he shielded a
fugitive, had sex with her, and engaged in a scheme to defraud her of
money by preventing her from seeing her child. (Id. ¶¶ 20-21, 33-38, 46-
48).
In his brief, Kreischer concedes that the court can dismiss his
claims against the defendants in their official capacities and his request
for punitive damages against them in their official capacities. (Doc. 8, at
1 n.1).
II. Legal Standard
Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a
defendant to move to dismiss for “failure to state a claim upon which
relief is granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a motion
to dismiss may be granted only if, accepting all well-pleaded allegations
in the complaint as true and viewing them in the light most favorable to
the plaintiff, a court finds the plaintiff’s claims lack facial plausibility.”
Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding
the motion, the court may consider the facts alleged on the face of the
complaint, as well as “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” Tellab,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although
the Court must accept the fact allegations in the complaint as true, it is
not compelled to accept “unsupported conclusions and unwarranted
inferences, or a legal conclusion couched as a factual allegations.”
Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v.
McGreevy, 481 F.3d 187, 195 (3d Cir. 2007). Nor is it required to credit
factual allegations contradicted by indisputably authentic documents on
which the complaint relies or matters of public record of which we may
take judicial notice. In re Washington Mut. Inc., 741 Fed. App’x 88, 91
n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F. Supp. 3d
1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F. Supp. 2d
579, 588-89 (W.D. Pa. 2008).
III. Discussion
Kreischer asserts a § 1983 claim in Count I based upon two theories.
First, he claims that by speaking out about wrongdoing in the district
attorney’s office, the defendants retaliated against him and discharged
him. Second, Kreischer contends that the defendants defamed him and
the injury to his good name and reputation is the deprivation of a liberty
interest protected by the Fourteenth Amendment’s due process clause.
In Count II of the complaint Kreischer alleges that after his termination,
the defendants and others acting at their request falsely told third
parties that he violated the Pennsylvania Crimes Code by aiding a
fugitive. Finally, in Count III, Kreischer contends that the defendants
conspired against him in a scheme to harm him.
To make out a due process claim for deprivation of a liberty interest
in reputation, a plaintiff must show a stigma to his reputation plus
deprivation of some additional right of interest. Paul v. Davis, 424 U.S.
693, 701 (1976); see also Hill v. Borough of Kutztown, 455 F.3d 225, 236
(3d Cir. 2006). This is known as the “stigma-plus” test. Id. Hill set forth
the standards in the public employment context as follows:
In the public employment context, the “stigma-plus”
test has been applied to mean that when an
employer “creates and disseminates a false and
defamatory impression about the employee in
connection with his termination,” it deprives the
employee of a protected liberty interest. The creation
and dissemination of a false and defamatory
impression is the “stigma,” and the termination is
the “plus.” When such a deprivation occurs, the
employee is entitled to a name-clearing hearing.
To satisfy the “stigma” prong of the test, it must be
alleged that the purportedly stigmatizing
statement(s) (1) were made publicly and (2) were
false.
Id. (citations omitted).
Kreischer has alleged that the defendants defamed him by
accusing him of various forms of misconduct to public offices, law
enforcement agencies, PNC Bank officials and employees, and his
family and friends. He has alleged that the accusations were not true,
they injured his good name and reputation causing pain, injury,
emotional distress, and financial losses. The complaint adequately
alleges the “stigma” prong of the “stigma-plus” test.
In the public employment context, a person’s loss of employment
to which he did not hold a state law-created property interest is a
sufficient “plus.” Id. at 237; Board of Regents v. Roth, 408 U.S. 564,
573 (1972). Where a public employee who is defamed in the course of
being terminated or constructively discharged satisfies the “stigma-
plus” test even if, as a matter of state law, he lacks a property interest
in the job he lost. Hill, 455 F.3d at 239. Here, Kreischer sufficiently
alleges that he was defamed in the course of being terminated. Thus,
we will deny the defendants’ motion as to Kreischer’s § 1983 defamation
claim.
Based on the plaintiff’s concessions, we will grant the motion as to
his official capacity claims and claim for punitive damages.
An appropriate order follows.
s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
U.S. Magistrate Judge
Dated: November 4, 2021