Figueroa v. Moyer

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CARLOS FIGUEROA, :

Plaintiff : CIVIL ACTION NO. 3:21-601

v. : (JUDGE MANNION)

SHENANDOAH BOROUGH, et al., :

Defendants :

MEMORANDUM

Presently before the court, in this civil rights action under 42 U.S.C.

§1983, is the defendants’ partial motion to dismiss, (Doc. 13), plaintiff’s

amended complaint, (Doc. 11), pursuant to Federal Rule of Civil Procedure

12(b)(6), for failure to state a cognizable constitutional claims as well as state

law claims. The defendants also contend that the plaintiff failed to state

cognizable municipal liability claims against Shenandoah Borough, (the

“Borough”), and the Municipal Authority of the Borough of Shenandoah,

(“Municipal Authority”), under Monell. The motion to dismiss has been fully

briefed and Exhibits were submitted, and it is pending before the court. After

the defendants filed their motion to dismiss, the court extended the discovery

period twice as well as the deadline to file motions for summary judgment.

(Docs. 25 & 28).1

The plaintiff is Carlos Figueroa a Hispanic adult residing in the Borough

with Aguilar. The defendants are the Borough, the Municipal Authority,

William Moyer, Sr., (“Moyer, Sr.”), an employee of the Municipal (Water)

Authority, and, his son, William Moyer, Jr., (“Officer Moyer”), a patrolman with

the Borough Police Department. In Count I of his amended complaint, plaintiff

raises a 1st Amendment Retaliatory Arrest claim against all defendants. In

Count II, plaintiff raises a 4th Amendment Unreasonable Search and Seizure

claim against all defendants. In Count III, plaintiff raises a Malicious

Prosecution claim under 1983 against all defendants. In Count IV, plaintiff

1The court notes that for purposes of discovery this case was

consolidated with the related case filed by Priscilla Aguilar, wife of Carlos

Figueroa, against William Moyer, Sr., an employee of the Municipal Authority

of the Borough of Shenandoah. See 21-CV-595, M.D. Pa. In her case, Aguilar

raises a 1st First Amendment claim under 42 U.S.C. §1983, as well as a state

law battery claim, as a result of Moyer Sr.’s alleged actions in obstructing her

ability to record the arrest of her husband, Figueroa. The parties in Aguilar’s

case consented to allow Magistrate Judge Carlson handle their case for all

matters. On December 7, 2021, Judge Carlson issued a Memorandum and

Order denying Moyer’s motion to dismiss in Auguilar’s case. (Docs. 23 & 24,

21-CV-595). This court then referred the instant case to Judge Carlson for

discovery purposes only. Since the background of this case overlaps with the

alleged facts of the Aguilar case, and both cases pertain to the arrest of

Figueroa, the court incorporates herein by reference Judge Carlson’s

December 7, 2021 Memorandum, (Doc. 23 at 1-4, 21-CV-595).

raises a conspiracy claim under §1983 against all defendants. In Count V,

plaintiff raises a state law Malicious Prosecution claim against the Moyer

defendants, and in Count VI, he asserts a state law assault and battery claim

against Moyer, Sr.

Both Moyer defendants are sued only in their individual capacities.

In their partial motion to dismiss, defendants request that all claims

against the Borough and the Municipal Authority be dismissed, that Counts I,

II, III, IV, and V against Moyer, Sr. be dismissed, and that Counts I, III, IV, and

V against Officer Moyer be dismissed. Defendants also assert that the two

individual defendants are entitled to qualified immunity.

Defendants’ partial motion to dismiss will be granted in part, and denied

in part.

The court has reviewed the briefs of the parties regarding the

defendants’ motion to dismiss. Accepting the allegations in the amended

complaint as true, as the court must, see Wheeler v. Wheeler, 639 Fed.Appx.

147, 149 (3d Cir. 2016) (“In evaluating a motion to dismiss, [the court]

consider[s] the well-pleaded allegations of the complaint, accepting factual

allegations as true and drawing all reasonable inferences in favor of the

plaintiff.”), the plaintiff has stated plausible 1st Amendment retaliation claims

against both of the individual Moyer defendants in Count I.

The court in Yoast v. Pottstown Borough, 437 F. Supp. 3d 403, 419

(E.D. Pa. 2020), explained:

[A]s a general matter the First Amendment prohibits government

officials from subjecting an individual to retaliatory actions,

including criminal prosecutions, for speaking out. To state a First

Amendment retaliation claim, a plaintiff must allege two things: (1)

that the activity in question is protected by the First Amendment,

and (2) that the protected activity was a substantial factor in the

alleged retaliatory action. Plaintiff must also show the absence of

probable cause for the arrest.

(internal citations and quotations omitted). See also Conard v. Pa. State

Police, 902 F.3d 178, 183–84 (3d Cir. 2018). Further, the constitutionally

protected conduct must be a substantial or motivating factor in the retaliatory

action. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016).

As to Moyer, Sr., the court concurs with Judge Carlson’s analysis in the

Aguilar case and his conclusion that “[t]he pleadings as they stand do not

permit an answer, as a matter of law, as to whether Moyer [Sr.] acted under

color of state law [for purposes of §1983] at the time of th[e] [alleged]

incident.”2 Plaintiff has also alleged sufficient facts to state a 1st Amendment

2The court notes that since Judge Carlson states he correct legal

standard for a civil rights action under §1983 and a 1st Amendment retaliation

claim as well as the applicable case law in determining whether a person is

acting under color of state law in his December 7, 2021 Memorandum, (Doc.

(footnote continued on next page)

retaliation claim against Moyer, Sr., even though he did not have the legal

authority to effectuate plaintiff’s arrest. See Lauren W. v. DeFlaminis, 480

F.3d 259, 267 (3d Cir. 2007). Further, plaintiff alleges that Moyer Sr.

physically assisted Officer Moyer in effecting his arrest. (Doc. 11, ¶27). Also,

as Judge Carlson found, (Doc. 23 at 14, 21-CV-595), in rejecting Moyer Sr.’s

motion arguing that he was entitled to qualified immunity since “there is no

clearly established law stating that government officials outside of law

enforcement can be liable for retaliating against individuals who record police

activity”, “the right to record police activity was clearly established at the time

of the underlying incident in 2019 [i.e., within the Third Circuit since 2017].”

(citing Fields v. City of Philadelphia, 862 F.3d 353, 359 (3d Cir. 2017)

(“recording police activity in public falls squarely within the First Amendment

right of access to information”)). Thus, plaintiff’s 1st Amendment retaliation

claim against Moyer, Sr. will proceed and, defendants’ motion to dismiss this

claim is denied.

For much of the same reasons stated above regarding defendants’

contention that Moyer, Sr. was not alleged to be acting under color of state

law with respect to Count I, the court will also allow plaintiff’s 4th Amendment

23 at 9-11, 21-CV-595), the court incorporates herein by reference Judge

Carlson’s decision and his analysis.

unreasonable search and seizure claim against Moyer, Sr. in Count II to

proceed through discovery and, defendants’ motion to dismiss this claim is

denied.

The court will also deny defendants’ motion to dismiss plaintiff’s 1st

Amendment retaliation claim against Officer Moyer, since he alleges that the

officer’s search, seizure, and prosecution instituted against him were in

retaliation for his statements to Moyer Sr., and that the officer lacked probable

cause to arrest him. Defendants contend that dismissal of the plaintiff’s 1st

Amendment retaliation claim against Officer Moyer in Count I is appropriate

to the extent plaintiff alleges his arrest was a retaliatory act, since this claim

is precluded by Nieves v. Bartlett, ––– U.S. ––––, 139 S. Ct. 1715, 204

L.Ed.2d 1 (2019), because probable cause existed for his arrest. However,

plaintiff is entitled to seek evidence during discovery regarding this issue

rendering the matter more appropriate for a summary judgment motion. Thus,

at the present stage of the case, prior to completion of discovery and full

development of the facts, it is premature to determine whether Officer Moyer

had sufficient probable cause to arrest and charge plaintiff regardless of the

fact that the charges were bound over for court on June 19, 2019, after a

preliminary hearing before a magisterial district judge. (See Doc. 20-1). In

fact, all of the charges Officer Moyer filed against plaintiff were later

dismissed.

Thus, plaintiff has plead sufficient facts that make it plausible that

defendant Officer Moyer lacked probable cause to arrest him and to believe

that plaintiff had committed the offenses with which he was charged. See

Watson v. Witmer, 183 F.Supp.3d 607, 614-15 (M.D. Pa. 2016) (finding that

a determination that probable cause must have existed [by defendant officer]

was premature at the motion to dismiss stage). Plaintiff will have the

opportunity through discovery to try and establish the requisite causal link for

his retaliation claim against Officer Moyer. Thus, defendants’ motion to

dismiss plaintiff’s 1st Amendment retaliation claim against Officer Moyer in

Count I is denied, and this claim will proceed.

Defendants also seek dismissal of Count III in which plaintiff asserts a

§1983 malicious prosecution claim under the “Fourth, Fifth and Sixth

Amendments.” (Doc. 11, ¶64). No doubt a malicious prosecution claim under

§1983 is properly brought under the 4th Amendment, see Yoast, 437 F. Supp.

3d at 419 n. 27 (noting that “the Fourth Amendment is the proper

constitutional provision to analyze a §1983 claim for malicious prosecution”),

and, thus the 5th and 6th Amendment claims in Count III are not appropriate.

The court also notes that to the extent that the plaintiff is attempting to rely

upon the 5th Amendment Due Process Clause in Count III, it is subject to

dismissal since this clause only applies to federal officials, see Bergdoll v.

City of York, 515 Fed.Appx. 165, 170 (3d Cir. 2013) (“[plaintiff’s] Fifth

Amendment claim fails because the Due Process Clause of the Fifth

Amendment only applies to federal officials, and [defendant] Officer is state

official”), and there are no federal official defendants in this case. As such,

plaintiff’s 5th and 6th Amendment claims in Count III are dismissed with

prejudice against all defendants.

“To prevail on a malicious prosecution claim under section 1983, a

plaintiff must show that: (1) the defendants initiated a criminal proceeding; (2)

the criminal proceeding ended in the plaintiff’s favor; (3) the proceeding was

initiated without probable cause; (4) the defendants 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.” Yoast, 437 F. Supp. 3d at 421 (citations omitted).

The plaintiff has plausibly stated a 4th Amendment malicious

prosecution claim against defendant Officer Moyer in Count III, and the

defendants’ motion to dismiss it is denied. (See Doc. 11 at ¶¶60-63). As

discussed above, plaintiff is entitled to discovery as to whether Officer Moyer

initiated plaintiff’s prosecution without probable cause and, whether the officer

acted maliciously or for a purpose other than bringing plaintiff to justice. As

such, the plaintiff’s 4th Amendment malicious prosecution claim against

Officer Moyer in Count III will proceed.

Plaintiff states in his brief, (Doc. 21 at 11), that insofar as defendants

seek to dismiss Moyer, Sr. from Count III, his counsel “represents that Count

III is not brought against Moyer Sr.”, and that Moyer, Sr. was erroneously

included in Count III. Since a brief cannot amend a pleading, see

Pennsylvania ex. rel Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.

1988), plaintiff’s 4th Amendment malicious prosecution claim against Moyer,

Sr. will be dismissed with prejudice since he did not initiate any criminal

proceeding against plaintiff, (see Doc. 20-1), and since plaintiff was not

deprived of his liberty by Moyer, Sr. See Yoast, 437 F. Supp. 3d at 421.

Since the elements of a state law malicious prosecution claim

essentially mirror the elements of this claim under the 4th Amendment, see

Donahue v. Gavin, 280 F.3d 371, 379 (3d Cir. 2002), and since “[t]he

Pennsylvania and federal standards regarding the existence of probable

cause are the same”, DeBellis v. Kulp, 166 F.Supp.2d 255, 280 (E.D. Pa.

2001), based on the discussion above, the court will deny defendants’ motion

to dismiss the plaintiff’s malicious prosecution claim against Officer Moyer in

Count V, and it will grant the motion to dismiss Count V against Moyer, Sr.,

with prejudice.

Next, the court considers plaintiff’s conspiracy claim under §1983 in

Count IV against defendants. “To properly plead an unconstitutional

conspiracy, a plaintiff must assert facts from which a conspiratorial agreement

can be inferred”, and “[t]he Court does not consider any conclusory

allegations [such as] that there was a corrupt conspiracy, an agreement, or

an understanding in place between the Defendants.” Yoast, 437 F. Supp. 3d

at 421 (internal quotations and citations omitted). See also Young v. Kann,

926 F.2d 1396, 1405 n. 16 (3d Cir. 1991) (conspiracy claims based on a

plaintiff’s mere suspicion and speculation are subject to dismissal). Here,

plaintiff’s allegations that Officer Moyer and Moyer, Sr. “conspired with” each

other, and/or with the Borough and Municipal Authority, to violate his rights,

(see Doc. 11, ¶¶ 11-35, 44, 66-67), sufficiently allege facts showing the

existence of a conspiracy at this stage of the case to support his §1983

conspiracy claim. Plaintiff has plausibly alleged facts to show that Moyer, Sr.

“willfully participate[d] in a joint action or conspiracy with [Officer Moyer] to

deprive the plaintiff of a constitutional right.” Forlina v. Doe, 2019 WL

5188400, at *7 (E.D. Pa. Oct. 11, 2019).

Defendants also contend that plaintiff’s alleged conspiracy between the

Borough and Officer Moyer, and the Borough and Moyer, Sr., must also be

dismissed because a municipal entity cannot conspire with itself under the

“intracorporate conspiracy doctrine.” “Under this doctrine, a corporation’s

employees, acting as agents of the corporation, are deemed incapable of

conspiring among themselves or with the corporation.” Whaumbush v. City of

Phila., 747 F.Supp.2d 505, 521 (E.D. Pa. 2010) (citation omitted). Further,

“[t]he Third Circuit has extended the doctrine to alleged conspiracies involving

governmental entities.” Id. n. 8 (citing Heffernan v. Hunter, 189 F.3d 405, 412

n. 5 (3d Cir. 1999)). “The doctrine does not apply, however, “if the officer is

acting in a personal, as opposed to official capacity”—in other words, “when

the employees have acted for their sole personal benefit and thus outside the

course and scope of their employment.” Id. (citing Heffernan, 189 F.3d at

412). The court will allow plaintiff discovery to seek facts as to whether Officer

Moyer and Moyer, Sr. acted outside of the scope of their employment.

Thus, defendants’ motion to dismiss Count IV will be denied and

plaintiff’s §1983 conspiracy claim will proceed against all defendants. See id.

(holding that since plaintiffs only sued defendants for personally conspiring to

deprive him of his civil rights, the issue of “whether the individual defendants

were, in fact, motivated by personal racial animus is a factual issue not

appropriate for resolution at the pleadings stage.”).

Next, the court finds that plaintiff has stated cognizable municipal

liability claims against the Borough and Municipal Authority in the federal

Counts under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–94, 98 S.Ct.

2018, 56 L.Ed.2d 611 (1978), based on his allegations that the defendants’

actions were the result of a policy, custom or practice of “discriminatory

animus towards Hispanic persons”, and he has alleged sufficient facts to

establish a failure to train and supervise claim against the defendant

municipalities. (See Doc. 11, at ¶¶33-46) (alleging that the Municipal

Authority, despite be aware of the discrimination by Moyer, Sr. against

Hispanic persons, and despite knowing that Moyer, Sr. was “a former police

officer who is a convicted felon with a history of lying due to a discriminatory

animus towards Hispanics”, allowed his “continued interaction with Hispanic

persons within the Borough” “without any corrective actions or training for its

employees, or the supervision of its employees, to ameliorate the prejudice

against Hispanic residents.”). Plaintiff also alleges, that “[a]t all relevant times,

[Officer] Moyer, Jr., a police officer of the Borough, had knowledge of Moyer

Sr.’s animus against Hispanic persons and Moyer Sr.’s character for

untruthfulness.” (Doc. 11, ¶44). Additionally, plaintiff has sufficiently

alleged that Officer Moyer was a policymaker, (Doc. 11, ¶40), and as he

states, “the Court must treat as a question of fact permitted under the Borough

Code.” (Doc. 21 at 5) (“The Borough of Shenandoah is governed by the

Borough Code, 8 Pa.C.S. §101, et seq., where the Mayor ‘may delegate to

the chief of police or other officer supervision over and instruction to

subordinate officers in the manner of performing their duties.’” Id.

§1123.1(c)). Further, plaintiff alleges that “the Borough, which controls the

Municipal Authority, as well as the Municipal Authority itself, ratified the

actions of Moyer Sr. by hiring him for the Municipal Authority as a foreman

with interaction with Hispanic residents, thereby making discriminatory

animus against Hispanics the official policy.” (Doc. 11, ¶¶ 38-39, 45-46).

The plaintiff will be afforded the opportunity to present facts and

evidence through discovery regarding his Monell claims against the Borough

and Municipal Authority and, these claims will be reconsidered if the

defendants file a summary judgment motion and raise this issue. Thus,

defendants’ motion to dismiss the municipal liability claims against the

Borough and Municipal Authority with respect to the remaining federal Counts

is denied. See Watson, 183 F.Supp.3d at 614-15 (citing Tarapchak v.

Lackawanna Cty., 173 F.Supp.3d 57, 84–87 (M.D. Pa. 2016)).

Finally, defendants’ motion to dismiss the claims against Officer Moyer

and Moyer, Sr. based on qualified immunity will be denied with respect to the

remaining federal claims against them. As to Moyer, Sr., the court concurs

with Judge Carlson’s analysis in his December 7, 2021 Memorandum

denying this defendant’s motion to dismiss Aguilar’s federal claims against

him based on qualified immunity. (See Doc. 23 at 12-15, 21-CV-595). Also,

since Judge Carlson states the correct law with respect to the qualified

immunity defense as well as a correct analysis of the case of Fields v. City of

Philadelphia, 862 F.3d 353 (3d Cir. 2017), in his Memorandum, the court

incorporates it herein. (See id.). In short, as Judge Carlson found, (id. at 15),

a qualified immunity determination, …, should await some furth[er]

development of the factual record”, and ‘[b]ecause we read Fields as

prohibiting interference with the right to record police activities by government

employees generally, we find that the right was clearly established at the time

of the [Figueroa arrest] incident in 2019, and Moyer [Sr.] is not entitled to

qualified immunity based solely upon the pleadings.”

As to Officer Moyer, it is clearly premature at this stage of the case to

decide if he is entitled to qualified immunity regarding the remaining federal

claims against him based on the above discussion and the court’s finding that

the disposition of the plaintiff’s 1st and 4th Amendment claims are more

appropriately addressed after discovery is completed and on a motion for

summary judgment. See Martin-McFarlane v. City of Phila., 299 F. Supp. 3d

658, 668 (E.D. Pa. 2017) (“At the pleading stage, ‘qualified immunity will be

upheld on a 12(b)(6) motion only when the immunity is established on the

face of the complaint.’”) (citation omitted).

Finally, to the extent plaintiff seeks punitive damages against the two

Moyer defendants in their individual capacities with respect to his federal

claims, the court notes that punitive damages are recoverable in individual

capacity suits against state actors for conduct exhibiting “reckless or callous

disregard for the plaintiff’s rights, as well as intentional violations of federal

law”, Smith v. Wade, 461 U.S. 30, 51, 103 S.Ct. 1625 (1983), and, plaintiff’s

allegations sufficiently allege such conduct by the two Moyer defendants.

Accordingly, defendants’ motion to dismiss, (Doc. 13), plaintiff’s

amended complaint, (Doc. 11), is GRANTED IN PART AND DENIED IN

PART, as specified above. An appropriate Order will issue.

s/Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATED: April 18, 2022

21-144-01