Bulkley v. Albert-Heise

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

James Chandler Bulkley, : CIVIL ACTION NO. 3:20-1203

Plaintiff, :

v. : (JUDGE MANNION)

Deborah Albert-Heise, :

Defendant. :

MEMORANDUM

Presently before the court is Defendant Deborah Albert-Heise’s motion

for summary judgment. (Doc. 40.) Plaintiff initially sued Defendant, an

Assistant District Attorney in Wyoming County Pennsylvania, and Craig

Flynn, a Pennsylvania State Trooper, for inter alia malicious prosecution

claiming that they lacked probable cause to bring criminal harassment and

stalking proceedings against him. On July 29, 2021, Judge John E. Jones III,

the now retired judge who previously presided over this case, granted

Trooper Flynn’s motion to dismiss with prejudice, finding Plaintiff failed to

adequately plead Trooper Flynn lacked probable cause. (Doc. 27.)

Defendant argues that this finding precludes an alternative finding as to her

and motions for summary judgment on that basis. As detailed below, the

court agrees with Defendant, and will GRANT her motion.

I. Background

This matter arises out of Plaintiff’s contentious divorce and child-

custody proceedings. Beginning in March 2017, Plaintiff’s former wife began

contacting the Pennsylvania State Police with complaints that Plaintiff was

harassing her. On August 22, 2017, Trooper Flynn, after consulting with

Defendant who determined there was adequate probable cause, filed a

summary harassment charge against Plaintiff. A preliminary hearing was

held before a state magisterial district judge, and Plaintiff was adjudged guilty

of the summary offense on October 6, 2017. Plaintiff appealed to the

Wyoming County Court of Pleas, which held a hearing on January 12, 2018.

At this hearing Defendant indicated to Plaintiff’s attorney that if Plaintiff did

not plead guilty to the summary harassment charge, she would file additional

charges. Subsequently Plaintiff pled not guilty, and Defendant informed the

court that the Commonwealth intended to withdraw the summary

harassment charge and file misdemeanor charges against Plaintiff.

On April 13, 2018, Trooper Flynn with Defendant’s approval filed a

Criminal Complaint and Affidavit of Probable Cause against Plaintiff charging

him with Stalking (graded as misdemeanor of the 1st degree) pursuant to 18

§2709.1 (A)(2) and Harassment (graded as a misdemeanor of the 3rd

degree) pursuant to 18 §2709(A)(7) for alleged acts that occurred between

June 30, 2016, and August 21, 2017. Plaintiff appeared for criminal

processing at the Wyoming County Courthouse but was never handcuffed

or imprisoned. Plaintiff’s bail was set at $10,000 unsecured on the condition

he not contact his former wife or consume alcohol. On February 22, 2019, a

preliminary hearing was held, and the court found that the Commonwealth

met its burden of establishing a prima facie case of misdemeanor stalking

and harassment. On October 3, 2019, Defendant on behalf of the

Commonwealth withdrew the misdemeanor charges against Plaintiff in

exchange for Plaintiff agreeing to a civil no contact order with his former wife.

Since this time Plaintiff has not had any additional criminal charges filed

against him or had any type of contact with Defendant.

On April 4, 2021, Plaintiff filed the present action against Defendant

and Trooper Flynn claiming that their conduct in bringing summary and

misdemeanor charges against him, allegedly without probable cause,

constituted false arrest, malicious prosecution, and failure to intervene in

violation of his Fourth Amendment, Fourteenth Amendment, and state law

rights.

Trooper Flynn filed a motion to dismiss sub judice on November 17,

2020, and a timely brief in support on December 4, 2020. On motion to

dismiss Trooper Flynn argued that Plaintiff’s claims failed as a matter of law

because, even after accepting the well-pled allegations as true, the

pleadings failed to make it plausible to conclude that Trooper Flynn lacked

probable cause when he charged Plaintiff. The court agreed finding that by

explicitly pleading, on at least two occasions, an independent judicial officer

determined the Commonwealth had sufficient probable cause to try Plaintiff

for the charges initiated by Trooper Flynn, Plaintiff could also not argue

Trooper Flynn lacked probable cause. Since each of Plaintiff’s substantive

claims, required a lack of probable cause the court dismissed all these claims

with prejudice.1

Conversely Defendant’s former counsel filed a motion to dismiss on

October 14, 2020, but the court terminated that motion on November 17,

2020, for failure to file a brief in support within fourteen days in violation of

Local Rule 7.5. Having missed the opportunity to have this action dismissed

at the onset, Defendant then answered Plaintiff’s complaint on December 2,

2020, and now moves for summary judgment on essentially the same basis

Trooper Flynn successfully motioned to dismiss.

1 Judge Jones initially dismissed Plaintiff’s claims against Trooper

Flynn without prejudice on March 18, 2021. (Doc. 20.) After Plaintiff amended

his complaint and Trooper Flynn filed a renewed motion to dismiss, Judge

Jones again dismissed Plaintiff’s claims on the same basis but with

prejudice. (Doc. 27.)

II. Legal Standard

Summary judgment is appropriate “if the pleadings, the discovery

[including, depositions, answers to interrogatories, and admissions on file]

and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c); See also Celotex Corp.

v. Catrett, 477 U.S. 317, 322–23 (1986); Turner v. Schering–Plough Corp.,

901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable

jury could find for the non-moving party and is material if it will affect the

outcome of the trial under governing substantive law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen,

903 F.Supp. 836, 838 (M.D. Pa. 1995).

At the summary judgment stage, “the judge’s function is not himself to

weigh the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; See

also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (a court

may not weigh the evidence or make credibility determinations). But the court

must consider all evidence and inferences drawn therefrom in the light most

favorable to the non-moving party. See Andreoli v. Gates, 482 F.3d 641, 647

(3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively

identify those portions of the record which demonstrate the absence of a

genuine issue of material fact. Celotex, 477 U.S. at 323–24. The moving

party can discharge the burden by showing that “on all the essential elements

of its case on which it bears the burden of proof at trial, no reasonable jury

could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d

Cir. 2003); See also Celotex, 477 U.S. at 325. If the moving party meets this

initial burden, the non-moving party “must do more than simply show that

there is some metaphysical doubt as to material facts,” but must show

sufficient evidence to support a jury verdict in its favor. Boyle v. County of

Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The non-moving party

must direct the court’s attention to specific, triable facts by “citing particular

parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A) (emphasis

added); See United States v. Starnes, 583 F.3d 196, 216 (3d Cir. 2009)

(“Judges are not like pigs, hunting for truffles buried in briefs.”) (quoting

United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)); See also

DeShields v. Int’l Resort Properties Ltd., 463 F. App'x 117, 120 (3d Cir. 2012)

(“If factual support for [a plaintiff’s] claim exist[s] in the record, it [i]s

incumbent upon her to direct the District Court’s attention to those facts.”).

If the non-moving party “fails to make a showing sufficient to establish

the existence of an element essential to [the non-movant’s] case, and on

which [the non-movant] will bear the burden of proof at trial,” Rule 56

mandates the entry of summary judgment because such a failure

“necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322–23;

Jakimas v. Hoffman–La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

Finally, “[i]nasmuch as Pennsylvania law governs this action[,] we treat

Pennsylvania Supreme Court opinions as binding precedent and

Pennsylvania Superior Court opinions as persuasive precedent.” State Farm

Fire & Cas. Co. v. Estate of Mehlman, 589 F.3d 105, 107 n.2 (3d Cir. 2009);

See also Jewelcor Inc. v. Karfunkel, 517 F.3d 672, 676 n. 4 (3d Cir. 2008)

(citing City of Philadelphia v. Lead Industries Ass’n, Inc., 994 F.2d 112, 123

(3d Cir. 1993))(“Although not dispositive, decisions of state intermediate

appellate courts [including the Pennsylvania Commonwealth Court] should

be accorded significant weight in the absence of an indication that the

highest state court would rule otherwise.).

III. Discussion

As a preliminary matter, Plaintiff failed to timely file a brief in opposition

in violation of Local Rule 7.6. As such, the court could have struck this

untimely response and deemed Defendant’s motion for summary judgement

unopposed. Likewise, under Local Rule 56.1 the court could have deemed

all material facts set fourth in Defendant’s statement of material facts as

admitted since they were not timely controverted by Plaintiff. However, the

court granted Plaintiff’s nunc pro tunc motion for leave to accept his late filed

brief.2 Still the court will not consider Plaintiff’s unsworn declaration (Doc. 45)

because that declaration contains hearsay and legal conclusions which

prevent its consideration under Federal Rule of Civil Procedure 56.

Regardless, Plaintiff fails to rebut many of Defendant’s dispositive

arguments, waiving his opposition to those arguments, and ultimately leaving

most of Defendant’s motion unopposed.

A. Res Judicata

Under the doctrine of res judicata or claim preclusion, “a final judgment

on the merits bars further claims by parties or their privies based on the same

cause of action.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970,

973, 59 L.Ed.2d 210 (1979). The Third Circuit has further explained that the

“federal law of claim preclusion requires a defendant to demonstrate that

2 Plaintiff should have filed his nunc pro tunc motion (filed September

11, 2023) contemporaneously with his untimely brief in opposition (filed

August 13, 2023) not a full month later and after Defendant had already

raised the untimeliness of his brief in her reply (filed August 28, 2023).

there has been (1) a final judgment on the merits in a prior suit involving (2)

the same parties or their privies and (3) a subsequent suit based on the same

cause of action.” United States v. Athlone Indus., Inc., 746 F.2d 977, 983 (3d

Cir. 1984).

Likewise, the Supreme Court of Pennsylvania applies the doctrine of

res judicata to two actions that share the following four conditions: (1) the

thing sued upon or for; (2) the cause of action; (3) the persons and parties to

the action; and (4) the capacity of the parties to sue or be sued. See Bearoff

v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72, 74 (1974). Pennsylvania

courts have also articulated a long-standing disapproval of claim splitting.

See, e.g., Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425, 428 (1968)

(explaining “sound policy” to avoid splitting up claims arising from the same

wrongful act).

Defendant argues that Plaintiff’s claims should be dismissed under the

doctrine of res judicata because Plaintiff’s claims against Defendant are

identical to the claims against Trooper Flynn previously dismissed by Judge

Jones. Since Plaintiff does not rebut this argument in his brief in opposition,

Defendant further argues that he has waived his opposition to it. See

Campbell v. Jefferson Univ. Physicians, 22 F.Supp.3d 478, 487 (E.D. Pa.

2014) (“Where a nonmoving party fails to address the “substance of any

challenge to particular claims, that failure ‘constitutes an abandonment of

[those] causes of action and essentially acts as a waiver of [those] issues.’”).

Here, the claims against Defendant and Trooper Flynn are identical,

and all the other requirements for res judicata have been met under both

federal and Pennsylvania law. See Shah v. United States, 540 Fed.Appx.

91, 93 (3d Cir. 2013) (unpublished) (quoting Marran v. Marran, 376 F.3d 143,

151 (3d Cir. 2004) and Equal Employment Opportunity Comm’n v. U.S. Steel

Corp., 921 F.2d 489, 493 (3d Cir. 1990)) (“Privity ‘is merely a word used to

say that the relationship between one who is a party on the record, and

another is close enough to include that other within the res judicata.’”).

Furthermore, res judicata does not require the precluded claim to actually

have been litigated; its concern, rather, is that the party against whom the

doctrine is asserted had a full and fair opportunity to litigate the claim. See

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424,

69 L.Ed.2d 103 (1981). Plaintiff had a full and fair opportunity to litigate the

claims at issue here before Judge Jones, who still dismissed those claims

on their merits.

In his sur-reply Plaintiff for the first time argues that the “circumstances”

surrounding Trooper Flynn’s dismissal are not the same as those facts

alleged against Defendant and as such the court should make its own

determination as to Defendant. However, the claims and factual allegations

against Defendant are again identical to those already dismissed against

Trooper Flynn. Moreover, Trooper Flynn acted based-on Defendant’s

probable cause determination. To find Defendant in directing Trooper Flynn

to file charges lacked probable cause, after Trooper Flynn was already found

to have probable cause in filing those same charges would lead to the kind

of unreconcilable conclusions the doctrine of res judicata is meant to prevent.

Accordingly, Plaintiff’s claims against Defendant are precluded by the

doctrine of res judicata.

B. Fourteenth Amendment More-Specific Provision Rule

Noting its “reluctan[ce] to expand the concept of substantive due

process,” the Supreme Court has established the “more-specific-provision

rule.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir.

2010)(citing County of Sacramento v. Lewis, 523 U.S. 833, 843–44, 118

S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). Under this rule, “if a constitutional

claim is covered by a specific constitutional provision, such as the Fourth or

Eighth Amendment, the claim must be analyzed under the standard

appropriate to that specific provision, not under the rubric of substantive due

process.” United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219,

137 L.Ed.2d 432 (1997) (clarifying prior holding in Graham v. Connor, 490

U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).

As a result of this reluctance, the Supreme Court in Albright v. Oliver

declined to “recognize a substantive right under the Due Process Clause ...

to be free from criminal prosecution except upon probable cause” and held

that “it is the Fourth Amendment, and not substantive due process, under

which [such a] ... claim must be judged.” 510 U.S. 266, 268, 271, 114 S.Ct.

807, 127 L.Ed.2d 114 (1994) (plurality); See also Washington v. Hanshaw,

552 F. App’x. 169, 172–73 (3d Cir. 2014) (“[T]he Court has held that, if a right

to be free from prosecution absent probable cause exists, it must instead be

grounded on the Fourth Amendment’s prohibition on unreasonable searches

and seizures.”)

Defendant argues that based on this rule Plaintiff’s Fourteenth

Amendment claims should fail as a matter of law. Furthermore, since Plaintiff

also fails to rebut this argument, Defendant argues his opposition is waived.

The court agrees on both arguments. Plaintiff, despite claiming he rebutted

all of Defendant argument’s, does not even address this issue in his sur-

reply. Accordingly, the court finds that notwithstanding the application of res

judicata, Plaintiff’s Fourteenth Amendment claims fail as a matter of law.

C. Failure to Show Lack of Probable Cause

Regardless of whether they are based on the Fourth Amendment or

Pennsylvania law the remaining claims—false arrest, malicious prosecution,

and failure to intervene—all require Plaintiff to establish that Defendant

lacked probable cause when she brought charges against him. See Wheeler

v. Wheeler, 639 F.App’x 147, 150 (3d Cir. 2016) (noting that a failure to plead

facts supporting a lack of probable cause is “dispositive” of the plaintiff’s

malicious prosecution and false arrest claims); Johnson v. Knorr, 477 F.3d

75, 81–82 (3d Cir. 2007) (finding that lack of probable cause is necessary

element of a malicious prosecution claim); See also Boyd v. Plainfield Police

Div., No. CV 15-2210, 2019 WL 2385887, at *6 (D.N.J. June 6, 2019) (“Lack

of probable cause is thus an essential element of Plaintiff’s claims of false

arrest, false imprisonment, and failure to intervene in a false arrest.”) (citing

Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995)); Jackson v.

City & Cty. of Philadelphia, No. CV 18- 1660, 2019 WL 199902, at *4 (E.D.

Pa. Jan. 11, 2019) (“if the record demonstrates that probable cause existed

at the time of Plaintiff’s arrest, Plaintiff’s claims [including failure to intervene,

false arrest, and malicious prosecution claims pursuant to Section 1983] . . .

all fail as a matter of law because for these causes of action to succeed at

trial, there must have been no probable cause at the time of Plaintiff’s

arrest.”)3

Generally, “the question of probable cause in a section 1983 damage

suit is one for the jury.” Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788

(3d Cir. 2000)(citing Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir.

1998). However, a district court may conclude “that probable cause exists as

a matter of law if the evidence, viewed most favorably to Plaintiff, reasonably

would not support a contrary factual finding,” and may enter summary

judgment accordingly. Id. (citing Sherwood v. Mulvihill, 113 F.3d 396, 401

(3d Cir. 1997)).

In Pennsylvania, a “false arrest is defined as 1) an arrest made without

probable cause or 2) an arrest made by a person without privilege to do so.”

McGriff v. Vidovich, 699 A.2d 797, 799 (Pa.Cmwlth.1997)(citing

Pennsylvania Suggested Standard Civil Jury Instructions §13.04). Similarly,

to make out a case of malicious prosecution under Pennsylvania law “the

burden is upon the plaintiff to prove affirmatively, by circumstances or

3 Citing Jennings v. Shuman, Plaintiff claims that the Third Circuit’s only

requirement for bringing a claim of malicious prosecution under '1983 is an

allegation of “action under color of state law.” 567 F.2d 1213, 1219-20 (3d

Cir. 1977). Unfortunately, Plaintiff’s counsel has failed to acknowledge the

above contrary authority in making this claim as well as failed to recognize

that Jennings is not even a malicious prosecution but malicious abuse of

process case.

otherwise, that the defendant had no reasonable or probable cause for

instituting the original criminal proceedings.” Stinson v. Smith, 329 Pa. 177,

181–82, 196 A. 843, 845 (1938). The Pennsylvania and federal standards

for the existence of probable cause are the same. See Renk v. City of

Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (1994). Furthermore, the

Pennsylvania Supreme Court has held that “the existence of probable cause

is a question of law for the court rather than a jury question.” Kelley v. Gen.

Teamsters, Chauffeurs & Helpers, Loc. Union 249, 518 Pa. 517, 521, 544

A.2d 940, 941 (1988).

Here Plaintiff does not dispute that he was adjudged “guilty” of the

initial summary harassment charge on October 6, 2017, and the

Pennsylvania Court of Common Pleas found the Commonwealth—as

represented by Defendant—met its burden of establishing a prima facie case

of misdemeanor stalking and harassment on February 22, 2019. Inherent in

these rulings is the finding that there was sufficient probable cause to try

Plaintiff for the charges at issue. See Wheeler, 639 F.App’x at 151

(“Consequently, the Pennsylvania court’s decision to schedule Wheeler for

trial is evidence of an independent, contemporaneous judicial determination

that there was sufficient probable cause to justify trying Wheeler for assault

and harassment.”); See also Commonwealth. v. Karetny, 583 Pa. 514, 529,

880 A.2d 505, 514 (2005) (citing Commonwealth v. McBride, 528 Pa. 153,

595 A.2d 589., 591 (1991)) (“A prima facie case exists when the

Commonwealth produces evidence of each of the material elements of the

crime charged and establishes probable cause to warrant the belief that the

accused committed the offense.”).

Nonetheless Plaintiff claims the Third Circuit has not found that the

“mere” finding of probable cause by a state magisterial district judge bars

subsequent false arrest claims and thus the state court findings “are just one

(1) piece of evidence, one (1) brick in the wall, not the whole wall.” Plaintiff

is wrong. The Third Circuit has explicitly found that a plaintiff may be

collaterally estopped from litigating civil claims where the same issues were

previously litigated in a prior criminal proceeding. See James v. Heritage

Valley Fed. Credit Union, 197 Fed. App’x 102, 105 (3d Cir. 2006) (“[a] finding

in a prior criminal proceeding may estop an individual from litigating the same

issue in a subsequent civil proceeding.”), cert denied, 550 U.S. 939, 127

S.Ct. 2253, 167 L.Ed.2d 1098 (2007).

Here not only did a magisterial district judge find there was probable

cause to charge Plaintiff but also a Court of Common Pleas judge found there

was probable cause to try Plaintiff on the charges at issue. Accordingly, the

issue of whether Defendant lacked probable cause is precluded, and

Plaintiff’s Fourth Amendment and Pennsylvania law claims also fail as a

matter of law. See Ciarrocchi v. Kennedy Memorial Hosp., 378 F. App’x. 239,

241 (3d Cir. 2010) (affirming the district court’s sua sponte application of

issue preclusion). The court will not entertain Plaintiff’s unsubstantiated

allegations of Defendant’s involvement in “conspiracy” against Plaintiff that

do not raise any genuine dispute of material fact in this case but instead

attempt to relitigate the facts of Plaintiff’s criminal and divorce proceedings.

D. Absolute and Qualified Immunity

Absolute immunity shields prosecutors from liability related to their

official acts. See Imbler v. Pachtman, 424 U.S. 409, 417-20, 96 S.Ct. 984,

47 L.Ed.2d 128 (1976). Under the doctrine of absolute immunity, prosecutors

are absolutely immune from liability for money damages under §1983 for

acts “within the scope of his duties in initiating and pursuing a criminal

prosecution.” Id. at 410. Absolute immunity attaches to actions “intimately

associated with the judicial phases of litigation,” but not to “administrative or

investigatory actions unrelated to initiating and conducting judicial

proceedings.” Id. at 430. The court’s absolute immunity analysis contains two

steps: (1) “[t]he court must ascertain just what conduct forms the basis for

the plaintiff’s cause of action,” and (2) “it must then determine what function

(prosecutorial, administrative, investigative, or something else entirely) that

act served.” Schneyder v. Smith, 653 F.3d 313, 332 (3d Cir. 2011).

Here Plaintiff alleges that Defendant violated his rights by directing and

approving the charges against him without probable cause, lying and

fabricating evidence to prosecute those charges, and not otherwise

disclosing his known innocence to the court. Conversely Defendant argues

that her actions in withdrawing the summary harassment charge and filing

misdemeanor charges against Plaintiff were within the scope of her

prosecutorial duties entitling her to absolute immunity from liability regarding

those actions. The court agrees with Defendant. She cannot be held liable

for any alleged misrepresentations to the court. See Buckley v. Fitzsimmons,

509 U.S. 259, 260, 113 S. Ct. 2606, 2608, 125 L. Ed. 2d 209 (1993) (Acts

undertaken by a prosecutor in preparing for the initiation of judicial

proceedings or for trial, and which occur in the course of her role as an

advocate for the State, are entitled to the protections of absolute immunity.)

However, Defendant appears to argue that she is not entitled to absolute

immunity regarding Plaintiff’s other allegations but is still entitled to qualified

immunity.4

4 Defendant does not clearly argue which of her acts form the basis of

Plaintiff’s allegations and which functions (i.e., prosecutorial or investigative)

(footnote continued on next page)

Qualified immunity shields law enforcement officers “from liability or

civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The two-pronged

test for whether qualified immunity applies requires this court to determine

(1) “whether the facts that a plaintiff has alleged or shown make out a

violation of a constitutional right” and (2) “whether the right at issue was

clearly established at the time of a defendant’s alleged misconduct.”

Montanez v. Thompson, 603 F.3d 243, 250 (3d Cir. 2010) (quoting Pearson

v. Callahan, 555 U.S. 223 (2009)).

To be clearly established, a right must be sufficiently clear “that every

‘reasonable official would [have understood] that what he is doing violates

that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 732,131 S.Ct., 2074, 2078, 179

L.ed. 2d 1149, (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.

3034, 97 L.Ed.2d 523 (1987)). In other words, “existing precedent must have

placed the statutory or constitutional question beyond debate.” Id. at 2083.

This “clearly established” standard protects the balance between vindication

those acts served. In fact, Defendant only argues she is entitled to absolute

immunity on her withdrawal of the summary offense in lieu of filing a

misdemeanor charge against Plaintiff, leaving the court to assume she does

not consider her other acts to serve a prosecutorial function.

of constitutional rights and government officials’ effective performance of

their duties by ensuring that officials can “‘reasonably ... anticipate when their

conduct may give rise to liability for damages.’” Anderson, at 639, 107 S.Ct.

3034 (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82

L.Ed.2d 139 (1984)).

Defendant argues that Plaintiff has failed to prove which of his clearly

established constitutional or statutory rights were violated. Plaintiff does not

oppose this argument, even in his sur-reply, and as previously explained has

not established any violation of his rights under the constitution or

Pennsylvania law. Accordingly, Defendant is entitled to qualified immunity on

all her acts not otherwise shielded by absolute immunity.

E. Pennsylvania State Constitutional Violations

Defendant argues that Plaintiff’s Pennsylvania constitutional claims

should be dismissed as a matter of law on the basis that “Pennsylvania does

not recognize a private right of action for damages in a lawsuit alleging a

violation of the Pennsylvania Constitution.” Moss v. Pennsylvania, 838

F.App’x 702, 708 (3d Cir. 2020). Once again Plaintiff does not oppose this

argument, even in his sur-reply. Accordingly, the court finds that Plaintiff’s

state constitution claims fail as a matter of law. No reasonable jury could find

for Plaintiff on a claim he is not legally allowed to bring.

IV. Conclusion

Plaintiff claims that he has earned his day in court. However, it is

evident from the above that Plaintiff did not even earn his day on summary

judgment but only stumbled to this point as result of Defendant’s failure to

timely file a motion to dismiss. There is no genuine dispute as to the facts

that show Plaintiff’s claims are precluded by res judicata, fail as a matter of

law, and do not otherwise overcome Defendant’s absolute and qualified

immunity. Accordingly, no reasonable jury could find in Plaintiff’s favor and

the court will GRANT Defendant’s motion for summary judgement in its

entirety. An appropriate order follows.

s/Malachy E. Mannion_____

MALACHY E. MANNION

United States District Judge

DATE: February 23, 2024

20-1203-01