# Bulkley v. Albert-Heise

> District Court, M.D. Pennsylvania · February 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10414333

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10414333

## How later opinions describe it (automated extraction)

- finding that lack of probable cause is necessary element of a malicious prosecution claim
- clarifying prior holding in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414333. Public record. Not legal advice.