Taalibuddeen v. Walmart Inc, Headquarters

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ZUBAIR R. TAALIBUDDEEN, : CIVIL NO: 1:22-CV-01354

:

Plaintiff, : (Magistrate Judge Schwab)

:

v. :

:

NEWBERRY TOWNSHIP, et al., :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction.

The plaintiff, Zubair R. Taalibuddeen (“Taalibuddeen”), claims that the

defendants violated his Fourth and Fourteenth Amendment rights as well as

Pennsylvania law in connection with his arrest at a local Walmart. The defendants

filed motions to dismiss Taalibuddeen’s amended complaint. For the reasons

stated below, we will grant in part and deny in part those motions to dismiss.

II. Background.

Taalibuddeen commenced this action pro se by filing a complaint on August

31, 2022. Doc. 1. He also filed an application to proceed in forma pauperis, which

we granted. Docs. 2, 5. After screening Taalibuddeen’s complaint, we concluded

that it failed to state a claim upon which relief can be granted. Doc. 6 at 1. But we

granted Taalibuddeen leave to amend his complaint. Id. And on May 3, 2023, he

filed an amended complaint naming Newberry Township, Officer Douglas S.

Klinefelter (“Officer Klinefelter”), and Walmart, Inc. (“Walmart”) as defendants.

Doc. 7 at ¶ 1.

In his amended complaint, Taalibuddeen alleges that on September 1, 2020,

he shopped for a futon and a small area rug at Walmart in Goldsboro,

Pennsylvania. Id. ¶ 9. He “obtained both items from their designated areas, placed

both items on to his cart and continued to the self-check register, all while noticing

he was being watched by the manager Michelle Reder from loss prevention.” Id.

¶ 10. While scanning at the self-checkout, Taalibuddeen noticed four barcodes on

the futon box. Id. ¶ 11. Assuming all the barcodes were the same, he scanned one,

purchased his items, and proceeded toward the exit. Id. ¶¶ 11, 12.

As Taalibuddeen made his way toward the exit, a Walmart employee asked

to see his receipt. Id. ¶ 12. Taalibuddeen queried why he was being asked for a

receipt when other customers were not. Id. ¶ 13. The Walmart employee said that

it was because Taalibuddeen’s “cart was bigger[.]” Id. Taalibuddeen, who is

African American, protested that “he was being racially profiled.” Id. ¶¶ 4, 13.

Reder came to address the situation, and she asked Taalibuddeen to walk

with her to the register. Id. ¶ 14. After scanning each barcode on the futon box,

Reder accused Taalibuddeen of placing the barcodes on the box. Id. ¶¶ 14, 15.

Taalibuddeen denied this. Id. ¶15. And he asked Reder if she had seen him put the

barcodes on the box. Id. Reder responded in the negative. Id. She added, however,

that “I can guarantee if I check the cameras, I will see you committing this crime

because I know your type.” Id. When Taalibuddeen asked what she meant, Reder

said, “you know what I mean, you Niggers are always trying to get over.” Id. ¶ 16.

Taalibuddeen then asked to speak to Reder’s manager and for a refund. Id.

Reder responded: “No you will not be getting any money back from my store,

matter of fact come to the back with me to my office.” Id. Taalibuddeen refused,

and he asked Reder to call the police. Id.

At some point thereafter, Officer Klinefelter of the Newberry Township

Police Department arrived, and Taalibuddeen was accused of theft. Id. ¶ 17.1

Officer Klinefelter escorted Taalibuddeen to Reder’s office, where he searched

Taalibuddeen, finding no weapons or contraband. Id. ¶ 18. Officer Klinefelter

informed Taalibuddeen that after the security camera footage was reviewed, he

would release him if there was no incriminating evidence. Id. Taalibuddeen,

Reder, and Officer Klinefelter then reviewed security camera footage for

approximately 35 minutes. Id. ¶ 19. The security camera footage did not show any

1 It is not clear here if Taalibuddeen is alleging that Office Klinefelter

accused him of theft, or if Reder accused him of theft in front of Officer

Klinefelter.

incriminating conduct by Taalibuddeen. Id. And Taalibuddeen requested to be

released. Id.

Instead of releasing Taalibuddeen, however, Officer Klinefelter arrested him

and charged him with “Retail theft (F3) and Receiving stolen property (M1).” Id.

¶ 20. Officer Klinefelter told Taalibuddeen that it was not his job to prove guilt or

innocence; the court would decide that issue. Id. According to Taalibuddeen,

Officer Klinefelter failed to properly investigate the incident, and he had no

probable cause to arrest him. Id. ¶ 21. Taalibuddeen told Officer Klinefelter that

“he had been racially profiled as he was being charged with no evidence.” Id. ¶ 22.

Officer Klinefelter responded that he believed Reder. Id.

Officer Klinefelter then handcuffed Taalibuddeen in a manner that broke the

skin on Taalibuddeen’s wrist, leaving him with permanent scars. Id. When

Taalibuddeen told Officer Klinefelter that the handcuffs were too tight, Officer

Klinefelter responded, “who cares” and took Taalibuddeen to the York County

booking center. Id. Taalibuddeen spent more than six hours in a booking cell

waiting to see a judge. Id. ¶ 23.

Taalibuddeen claims that at his preliminary hearing, Reder and Officer

Klinefelter offered false testimony to the court. Id. ¶ 24. On March 30, 2022, the

case against Taalibuddeen was dismissed. Id. ¶ 25. Taalibuddeen asserts that he

never committed any criminal offense. Id. ¶ 26. According to Taalibuddeen, this

incident has caused him to suffer a loss of employment and physical and

psychological harm. Id. ¶ 31.

Taalibuddeen claims that Walmart, Newberry Township, and Officer

Klinefelter violated his rights. Id. ¶¶ 32–37. His amended complaint contains six

counts. Counts I is a claim against Officer Klinefelter for unlawful arrest and

seizure in violation of the Fourth and Fourteenth Amendments. Id. ¶ 32. Count II

is a claim against Officer Klinefelter for excessive force in violation of the Fourth

and Fourteenth Amendments. Id. ¶ 33. Count III is a claim against Officer

Klinefelter for malicious prosecution in violation of the Fourth and Fourteenth

Amendments. Id. ¶ 34. Count IV is a claim against Officer Klinefelter for

violation of equal protection under the Fourteenth Amendment. Id. ¶ 35. Count V

is a claim against Newberry Township for violation of federal constitutional rights.

Id. ¶ 36. Count VI2 asserts state-law claims of assault, battery, false arrest, false

imprisonment, defamation of character, and malicious prosecution against Officer

Klinefelter and Walmart. Id. ¶ 37. As relief, Taalibuddeen requests compensatory

damages from all defendants and punitive damages from Officer Klinefelter. Id. at

8-9, ¶¶ A, B.

2 Taalibuddeen incorrectly titles this count as “Count IV.” There is already,

however, a Count IV listed. And because this count follows Count V, we assume

Taalibuddeen meant this count to be Count VI.

The parties consented to proceed before a magistrate judge pursuant to 28

U.S.C. § 636(c), and the case was referred to the undersigned. See doc. 24.

Newberry Township and Officer Klinefelter filed a partial motion to dismiss the

amended complaint, and Walmart filed a motion to dismiss. See docs. 20, 21.3

Those motions have been briefed. See docs. 21, 22, 25, 26. In the sections below,

we consider the defendants’ respective motions to dismiss.

III. Pleading and Fed. R. Civ. P. 12(b)(6) Standards.

In accordance with Fed. R. Civ. P. 12(b)(6), the court may dismiss a

complaint for “failure to state a claim upon which relief can be granted.” When

reviewing a motion to dismiss under Rule 12(b)(6), “[w]e must accept all factual

allegations in the complaint as true, construe the complaint in the light favorable to

the plaintiff, and ultimately determine whether plaintiff may be entitled to relief

3 Newberry Township and Officer Klinefelter move to dismiss Counts I, III,

IV, V, and the state law claims for defamation, false arrest, false imprisonment,

assault, and battery in Count VI. See Doc. 20 at 1. Thus, they are not moving to

dismiss Count II, which is the excessive force claim against Officer Klinefelter, or

the state law malicious prosecution claim against Officer Klinefelter in Count VI.

Moreover, although the motion purports to be moving to dismiss the state law

assault and battery claims in Count VI against Officer Klinefelter, the brief in

support of the motion does not mention the assault and battery claims. An

argument that is not developed is forfeited. See New Jersey Dep’t of Env’t Prot. v.

Am. Thermoplastics Corp., 974 F.3d 486, 493 n.2 (3d Cir. 2020) (“As this

argument was vaguely presented without factual or legal support, it is forfeited for

lack of development.”). Thus, Officer Klinefelter has waived any arguments for

why the state law assault and battery claims against him should be dismissed.

under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223,

229 (3d Cir. 2010). In making that determination, we “consider only the

complaint, exhibits attached to the complaint, matters of public record, as well as

undisputedly authentic documents if the [plaintiff’s] claims are based upon these

documents.” Id. at 230.

“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the

pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch.

Dist., 842 F. Supp. 2d 762, 769–70 (M.D. Pa. 2012). “Under Federal Rule of Civil

Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the

claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S.

662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). The statement required by

Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff’s

claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S.

89, 93 (2007). Detailed factual allegations are not required, but more is required

than “labels,” “conclusions,” or “a formulaic recitation of the elements of a cause

of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other

words, a complaint must do more than allege the plaintiff’s entitlement to relief.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has

to ‘show’ such an entitlement with its facts.” Id.

In considering whether a complaint fails to state a claim upon which relief

can be granted, the court “‘must accept all facts alleged in the complaint as true

and construe the complaint in the light most favorable to the nonmoving party.’”

Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v.

Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a

complaint’s bald assertions or legal conclusions when deciding a motion to

dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A

court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff

has not alleged.” Associated Gen. Contractors of Cal. v. California State Council

of Carpenters, 459 U.S. 519, 526 (1983).

Following Twombly and Iqbal, a well-pleaded complaint must contain more

than mere legal labels and conclusions. Rather, it must recite factual allegations

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere

speculation. In practice, consideration of the legal sufficiency of a complaint

entails a three-step analysis:

First, the court must “tak[e] note of the elements a

plaintiff must plead to state a claim.” Second, the court should

identify allegations that, “because they are no more than

conclusions, are not entitled to the assumption of truth.”

Finally, “where there are well-pleaded factual allegations, a

court should assume their veracity and then determine whether

they plausibly give rise to an entitlement for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and

citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).

In sum, “[w]e accept as true all factual matters [the plaintiff] alleges, but his

complaint cannot survive unless the facts it recites are enough to state plausible

grounds for relief.” Beasley v. Howard, 14 F.4th 226, 231 (3d Cir. 2021) (citing

Iqbal, 556 U.S. at 678). “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.” Iqbal, 556 U.S. at 678. But “[a]

claim that relies just on ‘conclusory statements,’ or on ‘threadbare recitals of the

elements of a cause of action’ without supporting factual allegations, does not

establish plausible grounds for relief.” Beasley, 14 F.4th at 231 (quoting Fischbein

v. Olson Rsch. Grp., Inc., 959 F.3d 559, 561 (3d Cir. 2020)).

A complaint filed by a pro se litigant is to be liberally construed and

“‘however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.’” Erickson, 551 U.S. at 94 (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). “Notwithstanding the rule of liberal

construction, a pro se complaint may not survive dismissal if its factual allegations

do not meet Iqbal’s basic plausibility standard.” Beasley, 14 F.4th at 231.

IV. Newberry Township and Officer Klinefelter’s Motion.

Taalibuddeen asserts federal claims against Newberry Township and Officer

Klinefelter. He also asserts state law claims against Officer Klinefelter. As noted

above, Newberry Township and Officer Klinefelter’s motion to dismiss is a partial

motion to dismiss. We proceed first to address the federal claims that are the

subject of that partial motion, and then we turn to the state law claims that are the

subject of the motion.

A. Federal Claims.

Taalibuddeen’s federal claims against Officer Klinefelter and Newberry

Township are claims under 42 U.S.C. § 1983. “Section 1983 imposes civil liability

upon any person who, acting under the color of state-law, deprives another

individual of any rights, privileges, or immunities secured by the Constitution or

laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146

(3d Cir. 2005). Section 1983 “does not create any new substantive rights but

instead provides a remedy for the violation of a federal constitutional or statutory

right.” Id. To establish a claim under § 1983, the plaintiff must establish a

deprivation of a federally protected right and that this deprivation was committed

by a person acting under color of state-law. Woloszyn v. County of Lawrence, 396

F.3d 314, 319 (3d Cir. 2005).

We begin with the federal claim against Newberry Township and then turn

to the federal claims against Officer Klinefelter.

1. Newberry Township—Count V.

In Count V of his amended complaint, Taalibuddeen brings a federal

constitutional claim against Newberry Township. Taalibuddeen alleges that

“Newberry Township has failed to properly train, supervise, and/or discipline its

officers, with regard to proper police practices including the exercise of arrest

powers, the use of force, and the initiation of criminal proceedings, thus causing

the constitutional violations in this case.” Doc. 7 ¶ 30. And he claims that

Newberry Township violated his rights in that it “encouraged, tolerated, ratified

and has been deliberately indifferent to the following policies, patterns, practices

and customs and the need for more or different training, supervision, investigation

or discipline” in the following areas:

a. Legal cause to stop, detain, and arrest a citizen;

b. The use of force by police officer;

c. The failure to identify and take remedial or

disciplinary action against police officers who were the subject

of prior civilian or internal complaints of misconduct.

Id. ¶ 36.

A municipality, such as Newberry Township, cannot be held liable under 42

U.S.C. § 1983 for the unconstitutional acts of its employees on a theory of

respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 691

(1978). Rather, “under § 1983, local governments are responsible only for ‘their

own illegal acts.’” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting

Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original)).

“[A] § 1983 claim against a municipality may proceed in two ways.” Forrest v.

Parry, 930 F.3d 93, 105 (3d Cir. 2019). One way for a plaintiff to present a claim

against a municipality is to allege “that an unconstitutional policy or custom of the

municipality led to his or her injuries.” Id. Another way for a plaintiff to present a

claim against a municipality is to allege that his injuries “were caused by a failure

or inadequacy by the municipality that ‘reflects a deliberate or conscious choice.’”

Id. (quoting Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019)).

To plead a claim against a municipality under the policy-or-custom strand of

municipal liability, “a plaintiff must allege that ‘a [local] government’s policy or

custom . . . inflict[ed] the injury’ in question.” Estate of Roman, 914 F.3d at 798

(quoting Monell, 436 U.S. at 694). ‘“Policy is made when a decisionmaker

possess[ing] final authority to establish municipal policy with respect to the action

issues an official proclamation, policy, or edict.’” Id. (quoting Andrews v. City of

Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (alteration in original) (internal

quotation marks omitted)). ‘“Custom, on the other hand, can be proven by

showing that a given course of conduct, although not specifically endorsed or

authorized by law, is so well-settled and permanent as virtually to constitute law.’”

Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).

“To satisfy the pleading standard, [a plaintiff] must identify a custom or

policy, and specify what exactly that custom or policy was.” McTernan v. City of

York, 564 F.3d 636, 658 (3d Cir. 2009). “Although a policy or custom is necessary

to plead a municipal claim, it is not sufficient to survive a motion to dismiss.”

Estate of Roman, 914 F.3d at 798. “A plaintiff must also allege that the policy or

custom was the ‘proximate cause’ of his injuries.” Id.

Taalibuddeen has not alleged facts from which it can reasonably be inferred

that a policy or custom of Newberry Township violated his rights. In fact,

Taalibuddeen alleges nothing in this regard. Taalibuddeen merely asserts legal

conclusions against Newberry Township, and he does not allege facts showing that

a policy or practice of Newberry Township violated his rights. Accordingly, the

amended complaint fails to state a claim against Newberry Township under the

policy-or-custom strand of municipal liability.

Another way for a plaintiff to present a claim against a municipality is to

allege that his or her injuries “were caused by a failure or inadequacy by the

municipality that ‘reflects a deliberate or conscious choice.’” Forrest, 930 F.3d at

105 (quoting Estate of Roman, 914 F.3d at 798). “The latter avenue arose in the

failure-to-train context, but applies to other failures and inadequacies by

municipalities, including those related to supervision and discipline of its . . .

officers.” Id.

A plaintiff asserting a municipal liability claim based on a failure or

inadequacy of training, supervision, or discipline “need not allege an

unconstitutional policy.” Estate of Roman, 914 F.3d at 798. Rather, he must show

that the municipality’s failure to train, supervise, or discipline “its employees

‘reflects a deliberate or conscious choice.’” Id. (quoting Brown v. Muhlenberg

Twp., 269 F.3d 205, 215 (3d Cir. 2001)). In this regard, the plaintiff must show “a

failure or inadequacy amounting to deliberate indifference on the part of the

municipality.” Forrest, 930 F.3d at 106. “This consists of a showing as to whether

(1) municipal policymakers know that employees will confront a particular

situation, (2) the situation involves a difficult choice or a history of employees

mishandling, and (3) the wrong choice by an employee will frequently cause

deprivation of constitutional rights.” Id. In addition to deliberate indifference, a

plaintiff asserting a municipal liability claim based on a failure or inadequacy of

training, supervision, or discipline must also allege causation. Elliott v.

Pennsylvania Interscholastic Athletic Assoc., No. 3:19-CV-01934, 2022 WL

987887, at *5 (M.D. Pa. Mar. 31, 2022). “[T]he causation inquiry focuses on

whether ‘the injury [could] have been avoided had the employee been trained

under a program that was not deficient in the identified respect.” Thomas v.

Cumberland Cty., 749 F.3d 217, 226 (3d Cir. 2014) (quoting City of Canton, Ohio

v. Harris, 489 U.S. 378, 391 (1989)).

Here, Taalibuddeen has not alleged facts from which it can reasonably be

inferred that a failure or inadequacy of training, supervision, or discipline by

Newberry Township caused a violation of his rights. Again, Taalibuddeen alleges

only legal conclusions against Newberry Township. Accordingly, the amended

complaint fails to state a claim against Newberry Township under the failure-to-

train, supervise, or discipline strand of municipal liability.

In sum, the complaint fails to state a 42 U.S.C. § 1983 claim upon which

relief can be granted against Newberry Township. Thus, we will dismiss Count V

of the amended complaint.

2. Officer Klinefelter—Counts I and III.

Officer Klinefelter contends that he is entitled to qualified immunity from

Taalibuddeen’s Fourth Amendment claims of unlawful arrest and seizure (Count I)

and malicious prosecution (Count III). Based on the allegations in the amended

complaint, however, we cannot say at this early stage of the proceedings that

Officer Klinefelter is entitled to qualified immunity.

Despite their participation in constitutionally impermissible conduct,

government officials “may nevertheless be shielded from liability for civil

damages if their actions did not violate ‘clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Qualified immunity ensures that before officers are subjected to suit, they

have notice that their conduct is unlawful. Id. “Qualified immunity balances two

important interests—the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). “If the law was clearly established, the

immunity defense ordinarily should fail, since a reasonably competent public

official should know the law governing his conduct.” Harlow, 457 U.S. at 818–19.

The qualified immunity analysis has two prongs. Pearson, 555 U.S. at 232.

One prong of the analysis is whether the facts that the plaintiff has alleged or

shown make out a violation of a constitutional right. Id. The other prong of the

analysis is whether the right was clearly established. Saucier v. Katz, 533 U.S. 194,

201 (2001).

Here, we start with the first prong, and analyze whether Taalibuddeen has

alleged a violation of his Fourth Amendment right to be free from false arrest, false

imprisonment, and malicious prosecution. The Fourth Amendment states, in

pertinent part, that “[t]he right of the people to be secure in their persons … against

unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause….” U.S. CONST. Amend. IV. “To state a claim for

false arrest under the Fourth Amendment, a plaintiff must establish: (1) that there

was an arrest; and (2) that the arrest was made without probable cause.” James v.

City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012). And ‘“where the police

lack probable cause to make an arrest, the arrestee has a claim under § 1983 for

false imprisonment based on a detention pursuant to that arrest.’” Harvard v.

Cesnalis, 973 F.3d 190, 202 (3d Cir. 2020) (quoting Groman v. Township of

Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)). Thus, ‘“[t]o state a claim for false

imprisonment, a plaintiff must establish: (1) that she was detained; and (2) that the

detention was unlawful.’” Id. (quoting James, 700 F.3d at 682–83). And to state a

malicious prosecution claim, a plaintiff must “show that: ‘(1) the defendants

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

the defendants initiated the proceeding without probable cause; (4) the defendants

acted maliciously or for a purpose other than bringing the plaintiff to justice; and

(5) he suffered deprivation of liberty consistent with the concept of seizure as a

consequence of a legal proceeding.’” Geness v. Cox, 902 F.3d 344, 355 (3d Cir.

2018) (quoting Zimmerman v. Corbett, 873 F.3d 414, 418 (3d Cir. 2017)). In

support of his contention that he is entitled to qualified immunity, Officer

Klinefelter contends that he had probable cause to arrest and prosecute

Taalibuddeen.

“The probable-cause standard is incapable of precise definition or

quantification into percentages because it deals with probabilities and depends on

the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003).

“Probable cause to arrest exists when the facts and circumstances within the

arresting 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 arrested.” Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995).

In other words, ‘“[p]robable cause exists if there is a fair probability that the person

committed the crime at issue.’” Williams v. City of York, Pennsylvania, 967 F.3d

252, 263 (3d Cir. 2020) (quoting Dempsey v. Bucknell Univ., 834 F.3d 457, 467

(3d Cir. 2016)).

Officer Klinefelter contends that he had probable cause to arrest and

prosecute Taalibuddeen based on information that he received from Reder. He

argues that at the time of Taalibuddeen’s arrest, the law “was uniform that when

‘an officer has received his information from some person . . . who it seems

reasonable to believe is telling the truth, he has probable cause.’” Doc. 22 at 11

(quoting Craig v. Collins, No. CIV.A. 13-1873, 2013 WL 5271521, at *6 (E.D. Pa.

Sept. 17, 2013)). We do not disagree with that statement of the law. But Officer

Klinefelter’s argument that he had probable cause based on information that he

received from Reder is not based on a fair reading of the facts alleged in the

amended complaint.4

Taalibuddeen alleges that he did not commit any criminal offense and that

Officer Klinefelter did not have probable cause to arrest him. Doc. 7 ¶¶ 26, 21. He

further alleges that after Reder accused him of placing the barcodes on the box, he

denied doing so. Id. ¶¶ 14, 15. And he asked Reder if she had seen him put the

barcodes on the box, and she allegedly responded in the negative. Id. According to

Taalibuddeen, she added, however, that “I can guarantee if I check the cameras, I

will see you committing this crime because I know your type.” Id. When

Taalibuddeen asked what she meant, Reder allegedly said, “you know what I

mean, you Niggers are always trying to get over.” Id. ¶ 16. And Taalibuddeen,

Reder, and Officer Klinefelter then reviewed security camera footage for

approximately 35 minutes, but, according to Taalibuddeen, that footage did not

show any incriminating conduct. Id. ¶ 19. Construing the facts alleged in the

amended complaint in the light favorable to Taalibuddeen, as we must when

4 To the extent that Officer Klinefelter has alleged or mischaracterized facts

that do not appear in the amended complaint, we do not accept them. See doc. 22 at

9-15. (“[S]he immediately approached him after he purchased the items in question

and . . . they were run with the wrong bar codes) (emphasis added) (“Ms. Reder is

named as a Defendant . . . .”) (“Ms. Reder claimed to have witnessed the alleged

criminal activity . . . .”) (emphasis added).

deciding a motion to dismiss, we cannot say that Officer Klinefelter had probable

cause.

We thus turn to the second prong of the qualified immunity analysis—

whether the law was clearly established. “To be clearly established, a legal

principle must have a sufficiently clear foundation in then-existing precedent.”

District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). In other words, “[t]he rule

must be ‘settled law,’ which means it is dictated by ‘controlling authority’ or ‘a

robust ‘consensus of cases of persuasive authority.’” Id. (internal citations

omitted). “It is not enough that the rule is suggested by then-existing precedent.”

Id. Rather, “[t]he precedent must be clear enough that every reasonable official

would interpret it to establish the particular rule the plaintiff seeks to apply.” Id.

Still, “the facts of the existing precedent need not perfectly match the

circumstances of the dispute in which the question arises.” Williams v. Sec’y

Pennsylvania Dep’t of Corr., 848 F.3d 549, 570 (3d Cir. 2017) “A public official

does not get the benefit of ‘one liability-free violation’ simply because the

circumstance of his case is not identical to that of a prior case.” Peroza-Benitez v.

Smith, 994 F.3d 157, 166 (3d Cir. 2021) (quoting Kopec v. Tate, 361 F.3d 772, 778

(3d Cir. 2004)). But if the law did not put the officer on notice that his conduct

would be clearly unlawful, qualified immunity is appropriate. Bayer v. Monroe

County Children & Youth Services, 577 F.3d 186, 193 (3d Cir. 2009). “In other

words, ‘existing precedent must have placed the statutory or constitutional question

beyond debate.’” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011)). “This exacting standard ‘gives government

officials breathing room to make reasonable but mistaken judgments’ by

‘protect[ing] all but the plainly incompetent or those who knowingly violate the

law.’” City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 611 (2015)

(quoting al-Kidd, 563 U.S. at 743).

“While the plaintiff must sufficiently plead a violation, the burden is on the

defendants to establish they are entitled to qualified immunity.” E. D. v. Sharkey,

928 F.3d 299, 306 (3d Cir. 2019). “Officials demonstrate they are entitled to

qualified immunity only if they can show that a reasonable person in their position

at the relevant time could have believed, in light of clearly established law, that

their conduct comported with recognized legal standards.” Id.

Although “qualified immunity should be resolved at the earliest possible

stage of litigation, see Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 116

L.Ed.2d 589 (1991), at the motion to dismiss stage, ‘qualified immunity will be

found only when the immunity is established on the face of the complaint.’”

O’Donnell v. Cumberland Cty., 195 F. Supp. 3d 724, 734–35 (M.D. Pa. 2016)

(quoting Schor v. North Braddock Borough, 801 F. Supp. 2d 369, 378–79 (W.D.

Pa. 2011) (citing Thomas v. Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006)).

“Thus, only where a plaintiff ‘fails to state a claim of a violation of a clearly

established law, [is] a defendant pleading qualified immunity . . . entitled to

dismissal before the commencement of discovery.’” Id. (quoting Schor, 801 F.

Supp. 2d at 379).

As set forth above, based on the facts alleged, we cannot say that Officer

Klinefelter had probable cause to arrest and prosecute Taalibuddeen. And it was

clearly established at the time of Taalibuddeen’s arrest that “the right to be free

from arrest except on probable cause, was clearly established[.]” Andrews v.

Scuilli, 853 F.3d 690, 705 (3d Cir. 2017) (quoting Orsatti, 71 F.3d at 483).

“Similarly, the right to be free from prosecutions on criminal charges that lack

probable cause was also known and clearly established” at the time Officer

Klinefelter charged Taalibuddeen. Id. Thus, based on the facts alleged in the

amended complaint, Officer Klinefelter had fair warning that his arrest and

prosecution of Taalibuddeen violated Taalibuddeen’s Fourth Amendment rights.

See Brown v. Gap Inc., No. 1:22-CV-00165, 2022 WL 17669715, at *10 (M.D. Pa.

Dec. 14, 2022) (concluding “that the Officer Defendants had fair warning that by

seizing/arresting/detaining Plaintiffs based on an accusation of retail theft that was

not only unsubstantiated but also refuted by the very evidence (video surveillance)

upon which the accusation was based, they violated Plaintiffs’ constitutional

rights”). Accordingly, it is not clear from the face of the amended complaint that

Officer Klinefelter is entitled to qualified immunity. Therefore, Officer Klinefelter

has not shown that Counts I and III of the amended complaint should be dismissed.

3. Officer Klinefelter—Count IV.

In Count IV, Taalibuddeen claims that Officer Klinefelter violated his right

to equal protection of the laws under the Fourteenth Amendment. He alleges that

he is African American and that he was racially profiled. Officer Klinefelter

asserts that Taalibuddeen’s equal protection claim fails as a matter of law.

The Equal Protection Clause directs that all similarly situated individuals be

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

To state an equal protection claim “in the profiling context,” a plaintiff must show

that the defendant’s actions “(1) had a discriminatory effect and (2) were motivated

by a discriminatory purpose.” Bradley v. United States, 299 F.3d 197, 205 (3d Cir.

2002). To show discriminatory effect, the plaintiff must “show that she is a

member of a protected class and that she was treated differently from similarly

situated individuals in an unprotected class.” Id. “Persons are similarly situated

under the Equal Protection Clause when they are alike ‘in all relevant aspects.’”

Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (quoting

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). “[A] plaintiff need not ‘identify in a

complaint actual instances where others have been treated differently.’”

McLaughlin v. Forty Fort Borough, 64 F. Supp. 3d 631, 647 (M.D. Pa. 2014)

(quoting Phillips v. Cnty. of Allegheny, 515 F. 3d 224, 244 (3d Cir. 2008)). Rather,

“[g]eneral allegations that a plaintiff was treated differently from others similarly

situated are sufficient.” Shkedi v. City of Scranton, No. 3:CV-14-2069, 2015 WL

1505660, at *10 (M.D. Pa. Apr. 1, 2015). The determination of whether

individuals are similarly situated is a ‘“case-by-case fact-intensive inquiry.’”

McLaughlin, 64 F. Supp. 3d at 648 (quoting Suber v. Guinta, 902 F.Supp.2d 591,

607 (E.D. Pa. 2012)). “For that reason, some courts in this Circuit have stated that

a final determination of this issue is inappropriate at the motion-to-dismiss stage.”

Id. (quoting Borrell v. Bloomsburg Univ., 955 F. Supp. 2d 390, 405 (M.D. Pa.

2013)).

Officer Klinefelter argues that Taalibuddeen’s equal protection claim fails

because he had probable cause to arrest and prosecute Taalibuddeen. But, as

explained above, based on the facts alleged in the amended complaint,

Taalibuddeen has plausibly alleged that Officer Klinefelter did not have probable

cause.5

5 Moreover, even if Officer Klinefelter had probable cause to arrest and

prosecute Taalibuddeen that would not necessarily preclude an equal protection

claim. Cf. Bradley, 299 F.3d at 205 (“The fact that there was no Fourth

Amendment violation does not mean that one was not discriminatorily selected for

a search.”).

Officer Klinefelter also argues that Taalibuddeen has not pleaded facts to

show that he treated Taalibuddeen differently than similarly situated individuals,

and he argues that although Taalibuddeen pleads facts that may arguably support

an equal protection claim against others, he has not pleaded facts supporting an

inference that he purposefully discriminated against Taalibuddeen. Although a

close call, we conclude that Taalibuddeen has alleged enough to state an equal

protection claim against Officer Klinefelter.

Taalibuddeen alleges that he was racially profiled. But ‘“[b]are assertions’

that the defendant acted with discriminatory purpose will not suffice.” Xi v.

Haugen, 68 F.4th 824, 840–41 (3d Cir. 2023) (quoting Iqbal, 556 U.S.at 681).

Rather, [t]he plaintiff must set forth ‘sufficient factual matter’ to show that the

defendant acted ‘because of,’ not merely ‘in spite of’ a protected characteristic.”

Id. (quoting Iqbal, 556 U.S. at 677).

Here, in addition to alleging that he was racially profiled, Taalibuddeen

alleges that Reder admitted that she did not see him place the barcodes on the box,

but she made racially discriminatory comments suggesting that he did so. Doc. 7

¶¶ 15, 16. Officer Klinefelter informed Taalibuddeen that he would release him if

after watching the security camera footage, there was no incriminating evidence.

Id. ¶ 18. Taalibuddeen, Reder, and Officer Klinefelter then reviewed security

camera footage for approximately 35 minutes. Id. ¶ 19. The security camera

footage did not show any incriminating conduct by Taalibuddeen, but Officer

Klinefelter nevertheless arrested and charged him. Id. ¶¶ 19–22. These allegations

coupled with the allegations that Taalibuddeen is African American and that he

was racially profiled, and in the absence of any allegations suggesting that there

was an alternate explanation for Officer Klinefelter’s actions, are sufficient to state

an equal protection claim against Officer Klinefelter. See Watson v. Witmer, 183 F.

Supp. 3d 607, 613 (M.D. Pa. 2016) ( concluding that the plaintiff stated an equal

protection claim where he alleged that, “as an African American, [he] is a member

of a protected class,” that the defendant “improperly arrested and detained [him]

due to his race,” that “race was a motivating factor in the decision to maliciously

prosecute him with false charges,” and that he could not reasonably have been

confused with perpetrator of the robbery at issue); Brown, 2022 WL 17669715, at

*7 (concluding that the “Plaintiffs—who are African American and therefore

belong to a protected class—have sufficiently alleged an equal protection claim

based on the allegations that they were wrongfully targeted, seized, detained, and

arrested due not to objective proof of criminal activities but to the Officer

Defendants’ discriminatory biases”).

B. State Law Claims Against Officer Klinefelter—Count VI.

Officer Klinefelter moves to dismiss Taalibuddeen’s state-law claims for

false arrest, false imprisonment, and defamation. We address each claim in turn.

1. False Arrest and False Imprisonment.

In the Commonwealth of Pennsylvania, a claim for false arrest is

synonymous with a claim for false imprisonment. Gagliardi v. Lynn, 285 A.2d

109, 111 (Pa. 1971). To prevail on either, a plaintiff must demonstrate: (1) they

were detained; and (2) the unlawfulness of their detention. Renk v. City of

Pittsburgh, 641 A.2d 289, 293 (Pa. 1994). An arrest based upon probable cause

would be justified, regardless of whether the plaintiff was later found guilty. Id.

Officer Klinefelter asserts that he had probable cause to arrest Taalibuddeen.

Doc. 22 at 15. But as discussed above, Taalibuddeen has plausibly alleged that

Officer Klinefelter did not have probable cause to arrest him Thus, we will not

dismiss Taalibuddeen’s state-law claims for false arrest and false imprisonment

against Officer Klinefelter.

2. Defamation.

Officer Klinefelter also moves to dismiss Taalibuddeen’s claim for

defamation. A plaintiff asserting a defamation claim under Pennsylvania law, must

show the following elements: (1) the defamatory character of the communication;

(2) its publication by the defendant; (3) its application to the plaintiff; (4) the

understanding by the recipient of its defamatory meaning; (5) the understanding by

the recipient of it as intended to be applied to the plaintiff; (6) special harm

resulting to the plaintiff from its publication; and (7) abuse of a conditionally

privileged occasion. 42 Pa. Cons. Stat. Ann. § 8343(a). “A statement is

defamatory if ‘it tends so to harm the reputation of another as to lower him in the

estimation of the community or to deter third persons from associating or dealing

with him.’” Graboff v. Colleran Firm, 744 F.3d 128, 136 (3d Cir. 2014) (quoting

Tucker v. Fischbein, 237 F.3d 275, 282 (3d Cir. 2001)). “But the statement must

do more than merely embarrass or annoy the plaintiff; it must provoke ‘the kind of

harm which has grievously fractured [one’s] standing in the community of

respectable society.’” Id. (quoting Tucker v. Phila. Daily News, 848 A.2d 113, 124

(Pa. 2004)).

Taalibuddeen has failed to plead sufficient facts to state a defamation claim

upon which relief can be granted against Officer Klinefelter. In fact, Taalibuddeen

has failed to allege what the communication by Officer Klinefelter at issue is,

much less the defamatory nature of it, or its publication. Thus, we will dismiss

Taalibuddeen’s defamation claim against Officer Klinefelter.

V. Walmart’s Motion.

Taalibuddeen brings state law claims of assault, battery, false arrest, false

imprisonment, defamation of character, and malicious prosecution against

Walmart. We address each of these claims in turn.

A. Assault and Battery.

First, we will consider Walmart’s motion to dismiss Taalibuddeen’s claims

for assault and battery. Under Pennsylvania law, “[t]he tort of assault requires that

the defendant act with the intent to place the plaintiff in apprehension of imminent

harmful or offensive bodily contact and that the plaintiff actually experience such

apprehension.” Dull v. W. Manchester Twp. Police Dep’t, 604 F. Supp. 2d 739,

754 (M.D. Pa. 2009). “Battery requires proof that the defendant acted with the

intent to cause harmful or offensive bodily contact with the person of the plaintiff

and that such contact actually followed.” Id.

Taalibuddeen does not allege sufficient facts to state a claim of assault or

battery upon which relief can be granted against Walmart. Taalibuddeen alleges

that, after accusing him of theft, Reder, as the agent of Walmart, requested him

come to a back office with her. Doc. 7 at ¶ 15, 16. After Taalibuddeen refused,

Reder called the police at Taalibuddeen’s insistence. Id. ¶ 16. Taalibuddeen does

not allege that Reder touched him, attempted to touch him, or threatened to touch

him. Nor does Taalibuddeen allege that he was ever in apprehension of imminent

harmful or offensive bodily conduct by Reder. Further, although Taalibuddeen

alleges that Officer Klinefelter arrested him, he does not allege, and there is no

basis to reasonably assume, that Reder actually participated in the arrest. Thus, the

amended complaint fails to state a claim of assault or battery against Walmart upon

which relief can be granted.

B. False Arrest and False Imprisonment.

Next, we consider Walmart’s motion to dismiss Taalibuddeen’s claims of

false arrest and false imprisonment. As set forth above, under Pennsylvania law, to

prevail on either a false arrest or a false imprisonment claim, a plaintiff must

demonstrate: (1) he/she was detained; and (2) the unlawfulness of his/her

detention. Renk, 641 A.2d at 293.

Walmart contends that it did not detain Taalibuddeen as he voluntarily

assisted with the investigation, and he wasn’t detained until Officer Klinefelter

arrived. That is an uncharitable reading of the amended complaint. Moreover,

Walmart has not addressed the caselaw that holds that a private party may be liable

for false arrest or false imprisonment if they indirectly cause the arrest or

imprisonment by making a false report. See e.g., Braswell v. Wollard, 243 A.3d

973, 980 (Pa. Super. Ct. 2020). Considering the facts alleged, at this early stage of

the proceeding, we cannot say that Walmart is not responsible for detaining

Taalibuddeen.

Walmart also argues that it was entitled to detain Taalibuddeen under the

following provision of Pennsylvania’s Retail Theft Act:

A peace officer, merchant or merchant’s employee or an agent

under contract with a merchant, who has probable cause to

believe that retail theft has occurred or is occurring on or about

a store or other retail mercantile establishment and who has

probable cause to believe that a specific person has committed

or is committing the retail theft may detain the suspect in a

reasonable manner for a reasonable time on or off the premises

for all or any of the following purposes: to require the suspect

to identify himself, to verify such identification, to determine

whether such suspect has in his possession unpurchased

merchandise taken from the mercantile establishment and, if so,

to recover such merchandise, to inform a peace officer, or to

institute criminal proceedings against the suspect. Such

detention shall not impose civil or criminal liability upon the

peace officer, merchant, employee, or agent so detaining.

18 Pa. Stat. and Cons. Stat. Ann. § 3929(d). Walmart suggests that Reder had

probable cause to believe that Taalibuddeen had switched the barcodes. But

Walmart does not acknowledge that Taalibuddeen alleges that Reder admitted that

she did not see him do so, and her basis for thinking that he did was because of his

race. Based on the allegations in the amended complaint, we cannot conclude that

Walmart is entitled to dismissal of the false arrest and false imprisonment claim.

C. Defamation.

Next, we consider Walmart’s motion to dismiss Taalibuddeen’s defamation

claim. We have already set forth the standards for defamation in Pennsylvania. In

his amended complaint, Taalibuddeen does not set forth what statement made by

Walmart was allegedly defamatory. In his brief, however, he points to Reder’s

racial statement. See doc. 25 at 4. Recall, Reder allegedly stated to Taalibuddeen

“you know what I mean, you Niggers are always trying to get over.” Doc. 7 ¶ 16.

But opinions and racial epithets are not actionable as defamatory. See Tannous v.

Cabrini Univ., No. CV 23-1115, 2023 WL 6465842, at *8 (E.D. Pa. Oct. 4, 2023).

Moreover, Taalibuddeen does not allege that Reder made this statement to anyone

other than Taalibuddeen. Thus, he has failed to allege that the statement was

published. See Elia v. Erie Ins. Exch., 634 A.2d 657, 660 (Pa. Super. Ct. 1993)

(stating that “in order for defamation to occur in the form of either libel or slander,

the defamatory statement must be published or communicated to a third person”).

In his brief, Taalibuddeen also asserts that his face was plastered on crime watch.

See doc. 25 at 4. In addition to this not being alleged in his amended complaint,

there are no allegations from which it could plausibly be inferred that Walmart was

responsible for such.6

6 We also note that under Pennsylvania law, statements made to law

enforcement accusing someone of a crime are privileged:

In sum, we will dismiss Taalibuddeen’s claim for defamation against

Walmart.

D. Malicious Prosecution.

Last, we consider Walmart’s motion to dismiss Taalibuddeen’s claim for

malicious prosecution. Under Pennsylvania law, a plaintiff asserting a malicious

prosecution claim must show “(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; and (4) the defendants acted maliciously or for a

purpose other than bringing the plaintiff to justice.” Merkle v. Upper Dublin Sch.

Dist., 211 F.3d 782, 791 (3d. Cir. 2000). Malice has been defined as “ill will in the

Under Pennsylvania law, statements by “‘judges, attorneys,

witnesses and parties in the course of or pertinent to any stage

of judicial proceedings are absolutely privileged.’” Dempsey v.

Bucknell University, No. 11-cv-1679, 2012 WL 1569826 at *14

(M.D. Pa. 2012) (quoting Pawlowski v. Smorto, 403 Pa. Super.

71, 588 A.2d 36, 41 (Pa. Super. Ct. 1991)). This privilege also

extends to “statements made solely to law enforcement officials

in which an accusation of a crime . . . is made, and which are

made for the purpose of inducing those officials to bring

criminal charges against the accused....” Pawlowski, 588 A.2d

at 41–43. This privilege is absolute, even if the “statements

may ultimately prove to be false or malicious motivated.” Id.

Ewideh v. Kohl’s Dep’t Stores Carlisle Pennsylvania, No. 1:20-CV-2342, 2022

WL 2181235, at *6 (M.D. Pa. Feb. 4, 2022), report and recommendation adopted,

2022 WL 1618530, at *1 (M.D. Pa. May 23, 2022).

sense of spite, lack of belief, by the actor himself in the propriety of the

prosecution, or its use for an extraneous improper purpose.” Lippay v. Christos,

996 F.2d 1490, 1502 (3d. Cir. 1993). “Malice may be inferred from the absence of

probable cause.” Id. “Probable cause is proof of facts and circumstances that

would convince a reasonable, honest person that the suspected person is guilty of a

criminal offense.” Id.

In some circumstances, a private defendant may be liable for malicious

prosecution under Pennsylvania law. But “private individuals can only be liable

for initiating criminal proceedings under limited circumstances, because officers

generally exercise their own discretion in bringing cases against criminal

defendants.” Tice v. PSP Trooper Tyler Prisk, No. 4:23-CV-00823, 2023 WL

7004427, at *3 (M.D. Pa. Oct. 24, 2023). “Usually, the malicious prosecution

action then lies against the officer for choosing to initiate a proceeding rather than

the private citizen.” Id. “But ‘it is not necessary that one who procures the

institution of criminal proceedings actually file the charges and prepare the

complaint.’” Id. (quoting Hess v. Lancaster Cnty., 514 A.2d 681, 684 (Pa.

Commw. Ct. 1986)). Rather, a private defendant initiates criminal proceedings

“where either (1) the private person’s desire to have the proceeding initiated was

the ‘determining factor in the commencement of the prosecution,’ for example,

through urging officers to prosecute the case; or (2) the public official acted upon

the person’s false information in carrying out the arrest.” Id. “In either

circumstance, the actions of the private person preclude the officer from exercising

his own discretion in deciding to carry out the prosecution.” Id.

Here, Walmart contends that the malicious prosecution claim against it

should be dismissed because although Reder initiated the investigation into retail

theft, the police “in their sole discretion acted upon information relayed to them

and observed in surveillance videos, and arrested the Plaintiff at the store.” Doc. 21

at 10–11. But given the allegations in the amended complaint, we cannot say that

Officer Klinefelter acted in his sole discretion. Taalibuddeen alleges that Reder

admitted that she did not see Taalibuddeen place the barcodes on the box; she

thought, however, that based on his race, the video surveillance footage would

show Taalibuddeen doing so; but the video surveillance footage did not show

Taalibuddeen doing so. Doc. 7 ¶¶ 15, 16, 19. Taalibuddeen also alleges that

Officer Klinefelter failed to properly investigate the incident, had no probable

cause to arrest him, and when Taalibuddeen told him that “he had been racially

profiled as he was being charged with no evidence,” Officer Klinefelter responded

that he believed Reder. Id. ¶¶ 21, 22. Given these allegations, we cannot say at this

early stage of the proceedings that Officer Klinefelter exercised his own discretion

in charging Taalibuddeen. Thus, Walmart is not entitled to dismissal of the

malicious prosecution claim on that basis.

Walmart also alleges that there was probable cause for the charges. But

given the allegations set forth above, and as explained before, Taalibuddeen

sufficiently alleges that there was not probable cause. And although Walmart also

suggests that Taalibuddeen has not pleaded that Reder acted with malice, given the

alleged lack of probable cause, malice may be inferred here. Thus, we will not

dismiss Taalibuddeen’s claim for malicious prosecution against Walmart.

VI. Leave to Amend.

“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must

permit a curative amendment unless such an amendment would be inequitable or

futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Here,

granting Taalibuddeen leave to amend would be futile as we have already granted

him this opportunity after screening his complaint.

VII. Conclusion.

Based on the foregoing, we will grant in part and deny in part the partial

motion to dismiss filed by Newberry Township and Officer Klinefelter. More

specifically, we will grant that motion to the extent that we dismiss the Monell

claim against Newberry Township (Count V) and the defamation claim in Count

VI against Officer Klinefelter. We will deny the motion in all other respects. The

remaining claims against Officer Klinefelter thus are:

• the Fourth Amendment unlawful arrest and seizure claim (Count I);

• the Fourth Amendment excessive force claim (Count II);

• the Fourth Amendment malicious prosecution claim (Count III):

• the Fourteenth Amendment equal protection claim (Count IV); and

• the state law assault, battery, false arrest, false imprisonment, and

malicious prosecution claims in Count VI.

Based on the foregoing, we will also grant in part and deny in part the

motion to dismiss filed by Walmart. More specifically, we will grant that motion

to the extent that we dismiss the assault, battery, and defamation claims in Count

VI against Walmart. We will deny the motion in all other respects. The remaining

claims against Walmart thus are the state law false arrest, false imprisonment, and

malicious prosecution claims in Count VI.

An appropriate ORDER follows.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge