Shnipes v. Shapiro

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOHN SHNIPES,

Plaintiff, CIVIL ACTION NO. 3:22-CV-196

v. (MEHALCHICK, M.J.)

JOSHUA SHAPIRO, ESQ., et al.,

Defendants.

MEMORANDUM

Before the Court is a motion to dismiss and a motion to stay discovery filed by

Defendants the Commonwealth of Pennsylvania (“the Commonwealth”), former Attorney

General Joshua Shapiro (“Shapiro”), Deputy Attorney General Rebecca A. Elo (“Elo”),

Pennsylvania State Trooper Jennifer A. Kosakevitch (“Kosakevitch”), and Special Agent for

the Attorney General’s Office Ralph Zezza (“Zezza”) (collectively, “Defendants”). (Doc. 6;

Doc. 29). On February 2, 2022, Plaintiff John Shnipes (“Shnipes”) commenced the instant

action by filing a complaint against Defendants asserting claims under state law and 42 U.S.C

1983. (Doc. 1). The parties have consented to proceed before the undersigned United States

Magistrate Judge pursuant to Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). (Doc. 28).

For the following reasons, Defendants’ motions to dismiss shall be GRANTED in part

and DENIED in part. (Doc. 6). Defendants’ motion to stay is DENIED. (Doc. 29).

I. BACKGROUND AND PROCEDURAL HISTORY

On February 2, 2022, Shnipes commenced the instant action by filing a complaint

against Defendants. (Doc. 1). In the complaint, Shnipes sets forth the following causes of

action: malicious prosecution under 42 U.S.C § 1983 and common law against all Defendants

(Counts I; III); malicious use and abuse of process under 42 U.S.C § 1983 and common law

against all Defendants (Counts II; IV); a state law claim for tortious interference with contract

against all Defendants (Count V); a state law defamation claim against Shapiro (Count VI);

and a breach of contract claim against all Defendants (Count VII). (Doc. 1). For relief,

Shnipes requests declaratory judgment, compensatory damages, punitive damages, attorneys’

costs and fees, and “any other relief this Court deems just and proper under the

circumstances.” (Doc. 1, ¶¶ 53, 65, 73, 81, 86, 91).

On April 18, 2022, Defendants moved to dismiss Count I-VII for failure to state a

claim. (Doc. 6). On May 16, 2022, with leave of Court, Defendants filed a brief in support of

their motion to dismiss with corresponding exhibits. (Doc. 9; Doc. 11). On June 14, 2022,

Shnipes filed a brief in opposition to Defendants’ motion to dismiss, with leave of Court.

(Doc. 14; Doc. 17). On July 12, 2022, with leave of Court, Defendants filed a reply brief to

Defendants’ motion to dismiss, with corresponding exhibits. (Doc. 19; Doc. 20).

On September 8, 2023, Defendants filed a motion to stay discovery pending close of

pleadings. (Doc. 29). Shnipes filed a brief in opposition to Defendants’ motion to stay

discovery on September 20, 2023. (Doc. 32). Defendants filed their brief in support of their

motion to stay discovery on September 22, 2023. (Doc. 33). The Court conducted oral

argument concerning the pending motion to dismiss and motion to stay on September 25,

2023. (Doc. 30). The motion to dismiss and the motion to stay are now ripe for disposition.1

(Doc. 6; Doc. 11; Doc. 17; Doc. 20; Doc. 29; Doc. 32; Doc. 33).

1 Shnipes alleges “Defendants are in default as an answer or motion was not filed in a

timely manner.” (Doc. 17, at 14). “[E]ntry of default is not an automatic function, but is

contingent upon the fulfillment of several requirements, one of which per Rule 55(a), is that

a request for entry of default must be accompanied by an affidavit by the plaintiff requesting

entry of default.” Curran v. Carbon Spyder, LLC, No. 1:11-cv-2127, 2015 WL 7769237, at *2

n.3 (M.D.Pa., Nov. 9, 2015) (citing Fed. R. Civ. P. 55). As Defendants filed their motion to

dismiss before any responsive pleading, the Court considers their motion timely. See Aetna

II. STANDARD OF LAW

A. MOTION TO DISMISS

Rule 12(b)(6) authorizes a defendant to move to dismiss for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To assess the sufficiency of a

complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff

must plead to state a claim, then identify mere conclusions which are not entitled to the

assumption of truth, and finally determine whether the complaint’s factual allegations, taken

as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc.,

662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) 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.” Tellabs, Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

After recognizing the required elements which make up the legal claim, a court should

“begin by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff

must provide some factual ground for relief, which “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions…’”

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat

Life Ins. Co. v. Alla Medical Servs., Inc., 855 F.2d 1470, 1474 (9th Cir.1988) (concluding that a

motion may be deemed timely under 12(b) any time before the responsive pleading is filed).

Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). The court also need not assume

that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of

Cal. v. Cal. St. Council of Carpenters, 459 U.S. 519, 526 (1983).

A court must then determine whether the well-pleaded factual allegations give rise to

a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting

Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in

the complaint, and any reasonable inferences that can be drawn therefrom are to be construed

in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for

which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.

President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted).

The plausibility determination is context-specific and does not impose a heightened pleading

requirement. Schuchardt, 839 F.3d at 347. The Third Circuit has further instructed that if a

complaint is vulnerable to dismissal for failure to state a claim, the district court must permit

a curative amendment, unless an amendment would be inequitable or futile. Grayson v.

Mayview St. Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

B. SECTION 1983

To state a claim under section 1983, a plaintiff must meet two threshold requirements.

She must allege: 1) that the alleged misconduct was committed by a person acting under color

of state law; and 2) that as a result, she was deprived of rights, privileges, or immunities

secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42 (1988);

Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams,

474 U.S. 327, 330-31 (1986). If a defendant fails to act under color of state law when engaged

in the alleged misconduct, a civil rights claim under section 1983 fails as a matter of

jurisdiction, Polk Cty. v. Dodson, 454 U.S. 312, 315 (1981), and there is no need to determine

whether a federal right has been violated. Rendell–Baker v. Kohn, 457 U.S. 830, 838 (1982).

“A defendant in a civil rights action must have personal involvement in the alleged

wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode

v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988); see also Sutton v. Rasheed, 323 F.3d 236,

249 (3d Cir. 2003) (citing Rode, 845 F.2d at 1207). “Personal involvement can be shown

through allegations of personal direction or of actual knowledge and acquiescence.” Rode, 845

F.2d at 1207; accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir. 1997); Baker

v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995). As explained in Rode:

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, 845 F.2d at 1207.

With respect to punitive damages for a § 1983 violation, this remedy is only available

“when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it

involves reckless or callous indifference to the federally protected rights of others.” Smith v.

Wade, 461 U.S. 30 (1983). Regarding federal civil rights claims, “reckless indifference” refers

to the defendant’s knowledge of the illegality of his actions, not the egregiousness of his

actions. Alexander v. Riga, 208 F.3d 419, 431 (3d Cir. 2000) (citing Kolstad v. Am. Dental Ass’n,

527 U.S. 526, 536 (1999)).

III. DISCUSSION

A. OFFICIAL CAPACITY CLAIMS

Defendants move to dismiss Shnipes’ claims against each Defendant in their official

capacity as barred by the Eleventh Amendment. (Doc. 11, at 18-19). Shnipes does not oppose

this argument in his reply brief. (Doc. 17). Because the Eleventh Amendment “bars a suit

against state officials in their official capacity,” all claims asserted against Defendants in their

official capacity are barred. Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990), aff'd, 502 U.S. 21

(1991); see also Woodring v. Republican Caucus of Pennsylvania House of Representatives, No. 1:18-

CV-1158, 2019 WL 1383633, at *8 (M.D. Pa. Mar. 27, 2019) (asserting “common law tort

claims and contract claims are [ ] barred by sovereign immunity”). Accordingly, claims

against Defendants in their official capacity are DISMISSED with prejudice.2 See Melo, 912

F. 2d at 635.

B. PROSECUTORIAL IMMUNITY OF ELO

Defendants move to dismiss claims against Defendant Elo, arguing that prosecutorial

immunity protects her from liability for actions taken in her capacity as a prosecutor. (Doc.

2 Further, all claims against the Commonwealth are dismissed. The Commonwealth

“has not waived its immunity in § 1983 civil rights cases.” O'Hara v. Ind. Univ. of Pa., 171 F.

Supp. 2d 490, 495 (W.D. Pa. 2001). Likewise, damage claims arising under state law against

the Commonwealth are barred by the Eleventh Amendment. Draucker v. Pennsylvania, No.

1:23-CV-1022, 2023 WL 4137482, at *3 n.2 (M.D. Pa. June 22, 2023). The court may dismiss

claims based on immunity if the immunity is clear on the face of the complaint. Weimer v. Cty.

of Fayette, Pennsylvania, 972 F.3d 177, 187 (3d Cir. 2020) (“a defendant must show that the

conduct triggering [] immunity ‘clearly appear[s] on the face of the complaint’”) (citing Fogle

v. Sokol, 957 F.3d 148, 161 (3d Cir. 2020)). Accordingly, all claims against the Commonwealth

are DISMISSED with prejudice.

11, at 19-20). Shnipes submits that prosecutorial immunity does not shield Elo because the

acts relevant to his claims, including interviewing a grand jury witness with police and

investigating the enforceability of the non-prosecution agreement, are “more closely aligned

with the ordinary work performed by police,” than that of a prosecutor. (Doc. 17, at 27). “A

prosecutor may not shield his investigative work with the aegis of absolute immunity merely

because, after a suspect is eventually arrested, indicted, and tried, that work may be

retrospectively described as “preparation” for a possible trial; every prosecutor might then

shield himself from liability for any constitutional wrong against innocent citizens by ensuring

that they go to trial.” Buckley v. Fitzsimmons, 509 U.S. 259, 276 (1993); see also Fogle v. Sokol,

957 F.3d 148, 163-64 (3d Cir. 2020) (finding a prosecutor was not protected by prosecutorial

immunity for “investigatory conduct” including collecting witness statements, working with

police, and obtaining fabricated evidence). Taking the allegations in Shnipes’s complaint as

true for the purpose of a motion to dismiss, the Court declines to apply prosecutorial

immunity to Elo at this point in the proceedings. As there are clear issues of material fact

surrounding whether Elo was acting more as an investigator or a prosecutor in connection

with the claims against her, the applicability of prosecutorial immunity would be better

decided later in this litigation. See Stevens v. Sullum, No. CV 3:20-1911, 2021 WL 2784817, at

*5 (M.D. Pa. July 2, 2021) (deciding claims against prosecutors were not precluded by

prosecutorial immunity for the purpose of a motion to dismiss because there were issues of

material fact relating to the nature of the prosecutors’ acts).

C. COUNTS I AND III: MALICIOUS PROSECUTION

Counts I and III assert § 1983 and common law claims for malicious prosecution

against all Defendants. (Doc. 1, ¶¶ 46-53, 66-73). To prevail on a malicious prosecution claim

asserted pursuant § 1983 and under state law, Shnipes must show that: (1) the defendant

initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3) the

defendant initiated the proceeding without probable cause; [and] (4) the defendant acted

maliciously or for a purpose other than bringing the plaintiff to justice.” Johnson v. Knorr, 477

F.3d 75, 81-82 (3d Cir. 2007) (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir.

2003)); see Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir. 1996)). For the malicious prosecution

claim asserted under § 1983, there is an additional constitutional component requiring

Shnipes to show a loss of liberty beyond simply showing an unlawful arrest. Merkle v. Upper

Dublin Sch. Dist., 211 F.3d 782, 792 (3d Cir. 2000).

Defendants move to dismiss Shnipes’s malicious prosecution claim on the basis that

he failed to allege the absence of probable cause. (Doc. 11, at 13). In opposition, Shnipes

asserts that the question of probable cause is one for the jury and that Defendants knew they

did not have probable cause to press charges against Shnipes but nonetheless knowingly relied

on false witness statements to secure an indictment (Doc. 17, at 12, 15, 16).

“Probable cause exists when ‘the facts and circumstances within the [defendant's]

knowledge are sufficient in themselves to warrant a reasonable person to believe that an

offense has been or is being committed.’” Stetser v. Jinks, 572 F. App'x 85, 87 (3d Cir. 2014)

(quoting United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990)). “While ‘the probable-cause

standard is incapable of precise definition or quantification,’ all interpretations of probable

cause require a belief of guilt that is reasonable, as opposed to certain.” Halsey v. Pfeiffer, 750

F.3d 273, 299 (3d Cir. 2014) (quoting Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir.

2005) (additional internal citations and quotations omitted)). Generally, the existence of

probable cause is a factual issue for the jury, and a court should “exercise caution before

granting a defendant summary judgment in a malicious prosecution case when there is a

question of whether there was probable cause for the initiation of the criminal proceeding.”

Halsey, 750 F.3d at 300; Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir.1998).

When determining probable cause, officers are not typically required to analyze the

credibility of the evidence they rely upon. Dempsey v. Bucknell Univ., 834 F.3d 457, 467 (3d.

Cir. 2016); Eckman v. Lancaster City, 529 F. App’x 185, 187 (3d Cir. 2013); Stafford v. Morris,

816 F. App’x 712, 717 (3d Cir. 2020). However, probable cause does not exist when

substantial evidence of a witness’ own unreliability outweighs the probable cause that

otherwise exists. See Dempsey, 834 F.3d at 479. Shnipes contends Defendants knowingly used

false witness statements before and during grand jury proceedings from a witness they knew

“has a history of making false accusations against correctional officers. . .” (Doc 1, ¶ 23).

Taking these allegations as true for the purpose of a motion to dismiss, Shnipes has sufficiently

alleged an absence of probable cause. See Crosland v. City of Philadelphia, No. CV 22-2416, 2023

WL 3898855, at *10 (E.D. Pa. June 8, 2023) (declining to dismiss a malicious prosecution

claim because the relevant affidavit was “thinly sourced” with unreliable witness’

statements.); see also Brazil v. Scranton School Board, et al., 2023 WL 5916470, at *9 (M.D. Pa.

Sept. 11, 2023) (denying a motion to dismiss a malicious prosecution claim because the

complaint asserted probable cause was based on known “false information.”).3 For the

3 The parties also disagree about the relevance of the non-prosecution agreement for

probable cause. (Doc. 11, at 12-13; Doc. 17, at 17). Shnipes alleges Defendants knew there

was no probable cause to bring criminal charges against him because they had knowledge of

the non-prosecution agreement. (Doc. 1, ¶ 21-22; Doc. 17, at 15). Defendants argue the non-

prosecution agreement was irrelevant to the issue of probable cause and instead an affirmative

defense. (Doc. 11, at 12-13). Taking Defendants’ argument as true and stipulating the non-

prosecution agreement was irrelevant, the facts alleged in the complaint still sufficiently

provide for a lack of probable cause. (Doc. 1, ¶ 21-22). Thus, because analysis of the non-

aforementioned reasons, Defendants’ motion to dismiss Shnipes’s malicious prosecution

claims against Defendants is DENIED.

D. COUNTS II AND VII: MALICIOUS ABUSE OF PROCESS

Counts II and IV allege causes of action for malicious abuse of process under 42 U.S.C

§ 1983 and state law. 4 (Doc. 1, ¶¶ 54-65, 74-81). “[A] section 1983 claim for malicious abuse

of process lies where ‘prosecution is [. . .] used for a purpose other than that intended by the

law.’” Rose v. Bartle, 871 F.2d 331, 350 n.17 (3d Cir. 1989) (quoting Jennings v. Shuman, 567

F.2d 1213, 1217 (3d Cir. 1977)). However, “there is no cause of action for abuse of process if

the claimant, even with bad intentions, merely carries out the process to its authorized

conclusion.” Cameron v. Graphic Mgmt. Assocs., 817 F. Supp. 19, 21 (E.D. Pa. 1992). Instead,

there must be a showing of perversion. Gen. Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d

297, 304 (3d Cir. 2003). The Third Circuit has defined “perversion” as a use of legal process

“primarily to accomplish a purpose for which the process was not defined” such that it

“caused harm to the plaintiff.” Gen. Refractories Co., 337 F.3d at 304.

Defendants submit that Shnipes’s malicious abuse of process claim is precluded by the

statute of limitations, which they posit to be one year. (Doc. 11, at 15). However, for actions

brought pursuant to § 1983, federal courts apply the state’s statute of limitations for personal

prosecution agreement is inconsequential at this juncture, the Court declines to opine on the

nature of the non-prosecution agreement.

4 In conjunction with his malicious abuse of process claim, Shnipes also raises

“malicious use of process.” (Doc. 1, ¶¶ 54-65). “Malicious use of process” is used

interchangeably with “malicious prosecution” in Pennsylvania. Occhipinti v. Bauer, No. 3:13-

CV-1875, 2017 WL 3495182, at *12 n.8 (M.D. Pa. Aug. 14, 2017); see also Baird v. Aluminum

Seal Co., 250 F.2d 595, 602 (3d Cir. 1957); see also Harvey v. Pincus, 549 F. Supp. 332, 340 (E.D.

Pa. 1982), aff'd, 716 F.2d 890 (3d Cir. 1983).

injury. Sameric Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).

Pennsylvania’s statute of limitations for personal injury is two years. 42 Pa. Cons. Stat. §

5524. Thus, for a malicious abuse of process claim asserted under 42 U.S.C. § 1983, the statute

of limitations is two years. Moody v. Conroy, 680 F. App'x 140, 142 (3d Cir. 2017). A malicious

abuse of process claim accrues on the date of arrest, as that is the date a plaintiff would know

of the injury. Rose v. Bartle, 871 F.2d 331, 350 (3d Cir. 1989) (citing Deary v. Three Un-Named

Police Officers, 746 F.2d 185, 197 (3d Cir. 1984)) (a § 1983 claim for abuse of process “accrues

on the date of the arrest, as does a because on that date a plaintiff ‘would have reason to know

of the injury which [the tort] encompass[es].’”); see also Adkins v. Cnty. of Erie, Pennsylvania,

No. CV 21-132, 2022 WL 16717546, at *2 (W.D. Pa. Nov. 4, 2022) (dismissing an untimely

abuse of process claim by applying the two-year statute of limitations).

Shnipes initiated this action on February 2, 2022. (Doc. 1). Shnipes was arrested on

February 14, 2018. (Doc 1, ¶ 25). Because Shnipes’s arrest date is more than two years from

when he filed his complaint, his malicious abuse of process claims are time-barred and as such

are DISMISSED with prejudice.

E. COUNT V: TORTIOUS INTERFERENCE WITH CONTRACT

Count V asserts a state law claim for tortious interference with contract against all

Defendants. (Doc. 1, ¶¶ 82-86). “Under Pennsylvania law, to prevail on a claim for tortious

interference with existing ... contractual relationships, a party must prove: (1) the existence of

a contractual ... or economic relationship between the plaintiff and a third party; (2)

purposeful action by the defendant, specifically intended to harm an existing relationship ...;

(3) the absence of privilege or justification on the part of the defendant; [and] (4) legal damage

to the plaintiff as a result of the defendant's conduct....” Acumed LLC v. Advanced Surgical Servs.,

Inc., 561 F.3d 199, 212 (3d Cir. 2009) (citing Brokerage Concepts, Inc. v. U.S. Healthcare, Inc.,

140 F.3d 494, 530 (3d Cir. 1998)). Defendants move to dismiss Shnipes’s tortious interference

with contract claim as barred by sovereign immunity. (Doc. 11, at 16). Shnipes alleges

sovereign immunity does not apply because “Defendants, in their individual capacity, in an

effort to help Shapiro’s political aspirations, purposefully acted to interfere with that contract

by arresting and prosecuting that contract.” (Doc. 17, at 21).

Pennsylvania law is clear that Commonwealth employees enjoy sovereign immunity

against state law claims, including tortious interference with contract. 1 Pa. Stat. and Cons.

Stat. § 2310; see Semian v. Dep't of Mil. & Veterans' Affs. - Gino J. Merli Veterans Ctr., No. 3:17-

CV-1183, 2018 WL 4038116, at *6-7 (M.D. Pa. Aug. 23, 2018) (dismissing a tortious

interference claim barred by sovereign immunity). This protection extends to intentional torts

committed by state employees acting in their individual capacities so long as they are acting

within the scope of their employment. Marrow v. Lawler, No. 1:19-CV-1690, 2020 WL

4903837, at *5 (M.D. Pa. Aug. 20, 2020); Larsen v. State Emps’ Ret. Sys., 553 F. Supp. 2d 403,

420 (M.D. Pa. 2008). “Under Pennsylvania law, even unauthorized acts may be within the

scope of employment ‘if they are clearly incidental to the master's business.’” Brumfield v.

Sanders, 232 F.3d 376, 381 (3d Cir. 2000) (quoting Shuman Estate v. Weber, 419 A.2d 169, 216

(Pa. Super. 1980)).

Here, each remaining Defendant named is a state employee. (Doc. 1, ¶¶ 3, 4, 5, 6).

Shnipes alleges Defendants intentionally interfered with his contract with the Commonwealth

by pursuing charges against him. (Doc. 1, ¶ 84). On the face of the complaint, Defendants’

alleged interference with the non-prosecution agreement was “clearly incidental to [their]

master’s business.” (Doc. 1); Brumfield, 232 F.3d at 381. Investigating the charges against

Shnipes and pursuing prosecution against him are both acts within the scope of each

Defendants’ employment, regardless of the non-prosecution agreement or Defendants’

alleged motivation “to advance [Shapiro’s] political aspirations.”5 (Doc. 1, ¶ 85); see Brumfield,

232 F.3d at 380-81 (finding government employees were protected by sovereign immunity

because investigatory tasks completed by the employees were done at least in part “to serve

the master” and therefore were within the scope of their employment); see also Bansal v. Russ,

513 F. Supp. 2d 264, 284-5 (E.D. Pa. 2007) (finding an employee at the Department of Justice

was working “incidental to her master’s business” by investigating and prosecuting the

plaintiff, even if her motivation was only in part to serve her employer). Each Defendant is

protected by sovereign immunity for the purpose of Shnipes’s tortious interference with

contract claim. See Brumfield, 232 F.3d at 380-81. Accordingly, Shnipes’s tortious interference

claim is DISMISSED with prejudice.6

5 The complaint asserts Kosakevitch spoke to witness J.T. and pursued charges against

Shnipes despite her knowledge of the non-prosecution agreement. (Doc. 1, ¶¶ 23-24).

Pennsylvania courts consider “investigating a crime throughout the duration of alleged

offenses, [to be] acting within the scope of [a State Trooper’s] employment.” DeForte, 364 F.

Supp. 3d at 487. Likewise, the complaint does not plausibly allege facts to support Elo and

Zezza were not acting “incidental to their master’s business,” throughout their investigation

and prosecution of Shnipes on behalf of the Attorney General’s office. (Doc. 1, ¶¶ 23, 24, 26);

see Bansal, 513 F. Supp. 2d at 284-85. There are no facts in the complaint plausibly supplying

their actions were not motivated “at least in part” by serving their employer, the Attorney

General, even if they had a personal interest in aiding his political career. (Doc. 1, ¶ 85); see

Bansal, 513 F. Supp. 2d at 284-85. Lastly, from the face of the complaint it is clear Shapiro

was also working pursuant to his official duties when he chose to pursue charges against

Shnipes despite his knowledge of the non-prosecution agreement, regardless of his

motivation. (Doc. 1, ¶ 24); Bansal, 513 F. Supp. 2d at 284-85.

6 To the extent Shnipes also asserts breach of contract, conspiracy, and false arrest

claims, the Court notes that Shnipes has not responded to Defendants’ motion to dismiss

these claims. As such, they are deemed unopposed. See Wen v. Willis, 117 F. Supp. 3d 673,

678 n.1 (E.D. Pa. 2015) (deeming defendants’ argument unopposed where plaintiff failed to

respond to the argument in response to motion to dismiss). Further, these claims, like the

tortious interference claim, are barred by sovereign immunity. See Spangler v. Centers for

F. COUNT VI: DEFAMATION

Finally, Count VI asserts a defamation claim against Shapiro. (Doc. 1, ¶¶ 87-91). The

statute of limitations for defamation is one year from when the alleged defamatory material

is first published. 42 Pa. Stat. and Cons. Stat. § 5523(1); In re Phila. Newspapers, 690 F.3d 161,

174 (3d Cir. 2012). From the face of the complaint, it is readily apparent that the defamation

claim based on Shapiro’s statements made during the alleged February 14, 2018 press

conference is untimely. (Doc. 1, ¶ 26); 42 Pa. Stat. and Cons. Stat. § 5523(1). The written

press statement made after August 20, 2021 falls within the statute of limitations; thus the

defamation claim based upon that statement is timely under 42 Pa. Stat. and Cons. Stat. §

5523(1). (Doc. 1, ¶ 36).

Parties disagree about whether Shapiro was acting in his official or individual capacity

when he published the August 2021 written statement to the press. (Doc. 11, at 17-18; Doc.

17, at 22-25; Doc. 20, at 17-18). If the written statement was made in Shapiro’s official

capacity, the defamation claim is barred. See Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990),

aff'd, 502 U.S. 21 (1991) (stating the Eleventh Amendment “bars a suit against state officials

in their official capacity, because the state is the real party in interest inasmuch as the plaintiff

seeks recovery from the state treasury.”). Shnipes argues the statement was made in Shapiro’s

individual capacity because “[talking] to the press is, at best, only an administrative function.”

Medicare & Medicaid Servs., No. 1:18-CV-01297, 2019 WL 4194276, at *4 (M.D. Pa. Sept. 4,

2019) (dismissing a breach of contract claim barred by sovereign immunity); Reuss v.

Pennsylvania State Police, No. 08CV0108, 2008 WL 897923, at *1 (W.D. Pa. Mar. 28, 2008)

(dismissing a civil conspiracy claim barred by sovereign immunity); Brazil v. Scranton Sch. Bd.,

No. 3:22-CV-01514, 2023 WL 5916470, at *16 (M.D. Pa. Sept. 11, 2023) (dismissing state

law claim of false arrest because it was barred by sovereign immunity). Accordingly, these

claims are DISMISSED.

(Doc. 17, at 22); Schrob v. Catterson, 948 F.2d 1402, 1420 (3d Cir. 1991). Further, Shnipes

asserts that when the statement was made, the “prosecution was over and [the press release]

was related to Shapiro[‘s] upcoming campaign for governor.” (Doc. 17, at 22-23). Thus, “[the]

statement was made outside the scope of Shapiro’s official duties as Attorney General and []

was not related to an active or ongoing criminal case or conviction.” (Doc. 1, ¶ 37).

Defendants assert Shapiro retained immunity because the statement was made pursuant to

and within the scope of his duties. (Doc. 11, at 17-18; Doc. 20, at 17-18).

Regardless of whether Shapiro made the statement in his official or individual

capacity, in Pennsylvania, attorney generals receive an absolute immunity against defamation

claims as “high public officials.” Lindner v. Mollan, 677 A.2d 1194, 1198 (1996); see also

Flanagan v. Borough of Laflin, No. 3:CV-13-2863, 2014 WL 1315400, at *11 (M.D. Pa. Mar.

28, 2014). “[H]igh public official immunity is an unlimited privilege that exempts high public

officials from lawsuits for defamation provided the statements made by the official are made

in the course of his official duties and within the scope of his authority.” Jackson v. Coatesville

Area School District, 2000 WL 1185375, at *8 (E.D. Pa. Aug. 21, 2000) (citing Matta v. Burton,

721 A.2d 1164, 1166 (Pa. Commw. Ct. 1998)). This protection extends regardless of the high

public official’s motivation in making the statement. Flanagan, 2014 WL 1315400, at *11.

While neither party addresses high public official immunity in their briefs, it is

applicable in this case. (Doc. 11; Doc. 17; Doc. 20). Shnipes’s complaint concedes Shapiro’s

written statement to the press was issued from the Office of the Attorney General. (Doc. 1, ¶

36). The alleged defamatory statement reads, “[a]s a result of this agreement made 8 years

ago, prior to a full investigation into Mr. Shnipes’s criminal conduct, our office sees no way

forward in achieving accountability for this defendant and justice for his victims.” (emphasis

added) (Doc. 1, ¶ 36). Taking the factual allegations in the complaint as true, Shnipes does

not have a plausible defamation claim against Shapiro, as he is a high public official and

released the statement on behalf of his office. (Doc. 1, ¶¶ 36-37); Flanagan, 2014 WL 1315400,

at *11 (dismissing defamation claims against the Attorney General by applying high public

official immunity and stating, “[h]igh public official immunity applies even if the [alleged

defamatory statement] was maliciously motivated as advocated by [the Attorney General].”).

Accordingly, Shnipes’s defamation claims against Shapiro are DISMISSED with prejudice.

IV. LEAVE TO AMEND

The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure

to state a claim, the district court must permit a curative amendment, unless an amendment

would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.

2002). The Third Circuit has also acknowledged that a district court has “substantial leeway

in deciding whether to grant leave to amend.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000);

see also Ruffin v. Mooney, No. 3:16-CV-1987, 2017 WL 3390361, at *2 (M.D. Pa. Jan. 31, 2017)

(dismissing prisoner-plaintiff's case without prejudice where it was unclear whether he was

seeking relief under § 1983 or a habeas statute). A district court is justified in denying leave to

amend if amendment would be “inequitable or futile” or upon “[a] plaintiff's ‘repeated failure

to cure deficiencies by amendments previously allowed ....’” Kitko v. Young, 575 F. App'x 21,

27 (3d Cir. 2014) (quoting Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 217 (3d Cir. 2013);

Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004)).

Here, the Court finds Shnipes’s claims for malicious abuse of process and defamation

are time-barred by the relevant statute of limitations. Shnipes’s defamation claim, tortious

interference with contract claim, breach of contract claim, conspiracy claim, false arrest claim,

claims against Defendants in their official capacities, and claims against the Commonwealth

are all barred by immunity. Because these claims will dismissed with prejudice, amendment

would be futile. See Lambert v. Casteel, No. 1:22-CV-01220, 2023 WL 4306762, at *7 (M.D.

Pa. June 30, 2023) (acknowledging time-barred claims as futile in the context of a leave to

amend); see also Burton v. Wetzel, No. 1:22-CV-1625, 2023 WL 5804324, at *3 (M.D. Pa. Sept.

7, 2023) (recognizing amendment to be futile for claims involving immunity). As such, the

Court will not grant leave to amend.

V. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and

DENIED in part. (Doc. 6). All claims against the Commonwealth and Defendants in their

official capacities are dismissed with prejudice. Defendants’ motion to dismiss Counts I and

III, Plaintiff’s § 1983 and state law malicious prosecution claims is DENIED. Defendants’

motion is granted as to all other counts and those claims are dismissed with prejudice. Finally,

Defendants’ motion to stay (Doc. 29) is DENIED as moot. The Court will issue a case

management order setting forth pretrial deadlines separately.

An appropriate Order follows.

Dated: September 29, 2023 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

Chief United States Magistrate Judge