Brazil v. Scranton School Board

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JEFFREY BRAZIL,

Plaintiff, CIVIL ACTION NO. 3:22-CV-01514

v. (MEHALCHICK, J.)

SCRANTON SCHOOL BOARD, et al.,

Defendants.

MEMORANDUM

Before the Court is a motion to dismiss the second amended complaint filed by

Defendants’ Special Agent Robert McHugh (“McHugh”) and Trooper Michael Mulvey

(“Mulvey”) (collectively “Commonwealth Defendants”). (Doc. 41; Doc. 44). Plaintiff Jeffrey

Brazil (“Brazil”) filed the above-captioned action on September 23, 2022, alleging violations

of his Fourth, Fifth, and Fourteenth Amendments rights under 42 U.S.C § 1983 and state law.

(Doc. 1). For the following reasons, Commonwealth Defendants’ motion to dismiss the

second amended complaint shall be DENIED in part and GRANTED in part. (Doc. 44).

I. BACKGROUND AND PROCEDURAL HISTORY

The following background is taken from Brazil’s second amended complaint. (Doc.

41). Brazil was employed by the Scranton School District (the “District”) as the Director of

Facilities from January 2012 until March 2019, when he resigned due to an injury. (Doc. 41,

¶¶ 22, 70, 71). During this time, Brazil “voluntarily and proactively tested Scranton schools

for environmental hazards.” (Doc. 41, ¶ C). This action arises from Brazil’s prosecution for

allegedly failing to share the results of this testing while working for the Scranton School

District. (Doc. 41, ¶ 78, 87).

According to Brazil, Commonwealth Defendants exploited and misrepresented his

actions as Director of Facilities “to maliciously prosecute and falsely arrest [Brazil].” (Doc.

41, ¶ C). Using information provided by the Scranton School Board, Commonwealth

Defendants swore an affidavit of probable cause and a criminal complaint “littered with

intentionally false statements” and misrepresentations to charge Brazil with “child

endangerment.” (Doc. 41, ¶ 1). In their affidavit of probable cause, Commonwealth

Defendants claimed Brazil endangered students because he “intentionally concealed”

information about biohazards in the Scranton School District. (Doc. 41, ¶¶ 1, 89). Brazil

pleads that Commonwealth Defendants knew the information given to them by the Scranton

School Board was false but used it in their affidavit anyway. (Doc. 41, ¶ 1).

After Brazil’s arrest in September 2020, the Attorney General’s Office held a press

conference. (Doc. 41, ¶¶ 107-109). During the press conference, then-Attorney General

Joshua Shapiro “made bombastic and slanderous remarks about Mr. Brazil designed to

generate ‘buzz’ and positive publicity” about his case, likening it to what happened in schools

in Flint, Michigan. (Doc. 41, ¶ 109). However, after an investigating grand jury was convened,

but before a preliminary hearing, the Attorney General’s office dropped all charges against

Brazil. (Doc. 41, ¶¶ 93, 101).

In his second amended complaint, Brazil sets forth the following causes of action

against the Commonwealth Defendants: Malicious Prosecution under 42 U.S.C. § 1983 for

Violation of the Fourth Amendment of the United States Constitution and Pennsylvania

Common Law (Count II); Malicious Use and Abuse of Process under 42 U.S.C. § 1983

(Count III); and False Arrest and Imprisonment under 42 U.S.C. § 1983 and Common law

(Count IV). (Doc. 41). Brazil seeks damages, including punitive damages and attorneys’ fees,

as well as a “declaratory judgment that Defendants’ acts complained of herein have violated

and continue to violate the rights of Plaintiff.” (Doc. 41, at 32, 34, 36).

On October 23, 2023, Commonwealth Defendants filed a motion to dismiss the second

amended complaint. (Doc. 44). On November 6, 2023, Commonwealth Defendants filed a

brief in support of their motion and accompanying documents. (Doc. 45; Doc. 45-1; Doc. 45-

2). On December 19, 2023, Brazil filed a brief in opposition and accompanying exhibits. (Doc.

55; Doc. 55-1; Doc. 55-2). On December 20, 2023, Brazil filed a supplemental table of

contents.1 (Doc. 57; Doc. 59; Doc. 60). The motion to dismiss is now fully briefed and ripe

for disposition. (Doc. 44; Doc. 45; Doc. 55; Doc. 57; Doc. 59; Doc. 60).

II. STANDARD OF LAW

A. MOTION TO DISMISS

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

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

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

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

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

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

662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, the court may consider

the facts alleged on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v.

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

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

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

1 It appears counsel attempted to file this document, a table of contents and authority,

three times. (Doc. 57; Doc. 59; Doc. 60). However, the first two iterations of the table of

contents are littered with “Error! Bookmark not defined” statements. (Doc. 57; Doc. 59; Doc.

60).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. SECTION 1983

Commonwealth Defendants are state actors for purpose of Section 1983. See Kline ex

rel. Arndt v. Mansfield, 454 F. Supp. 2d 258, 262 (E.D. Pa. 2006). To state a claim under Section

1983, a plaintiff must meet two threshold requirements. Accordingly, in this case Brazil must

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

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

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

Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S.

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

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

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

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

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

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

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

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

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

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

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

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

alleged wrongs . . . . [P]ersonal involvement can be shown through allegations

of personal direction or of actual knowledge and acquiescence. Allegations of

participation or actual knowledge and acquiescence, however, must be made

with appropriate particularity.

Rode, 845 F.2d at 1207.

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

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

or when it involves reckless or callous indifference to the federally protected rights of others.”

Smith v. Wade, 461 U.S. 30 (1983). Regarding federal civil rights claims, “reckless

indifference” refers to the defendant’s knowledge of the illegality of his actions, not the

egregiousness of his actions. Alexander v. Riga, 208 F.3d 419, 431 (3d Cir. 2000) (citing Kolstad

v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999)).

III. DISCUSSION

Commonwealth Defendants move to dismiss the second amended complaint for the

following reasons; (1) neither the Fifth nor the Fourteenth Amendment are applicable in this

case; (2) Brazil has failed to plead a prima facie case for malicious prosecution; (3) Brazil’s false

arrest and false imprisonment claims fail because Commonwealth Defendants had probable

cause to arrest Brazil; (4) Commonwealth Defendants are entitled to sovereign immunity for

all state law claims; and (5) Brazil has failed to plead a prima facie case for abuse of process.

(Doc. 45, at 3). The Court will address these arguments seriatim.

A. BRAZIL’S CLAIMS ASSERTED UNDER THE FIFTH AND FOURTEENTH

AMENDMENT

Commonwealth Defendants argue the Fifth and Fourteenth Amendment are “not the

appropriate source for the constitutional protections sought” by Brazil for Count II, Count

III, and Count IV. (Doc. 41, ¶¶ 135, 145, 152; Doc. 45, at 11). Brazil states he does not oppose

the dismissal of his claims against Commonwealth Defendants under the Fifth and

Fourteenth Amendment. (Doc. 55. at 9 n.8). Accordingly, all claims asserted under the Fifth

and Fourteenth Amendment are DISMISSED with prejudice.

B. BRAZIL’S MALICIOUS PROSECUTION CLAIM UNDER SECTION 1983

Commonwealth Defendants move to dismiss Count II of the second amended

complaint, arguing that Brazil failed to meet his prima facie pleading burden for his malicious

prosecution claim. (Doc. 45, at 13-21). To state a claim for malicious prosecution, a plaintiff

must satisfy the common law elements of the tort. Merkle v. Upper Dublin Sch. Dist., 211 F.3d

782, 792 (3d Cir. 2000). Thus, to prevail on a Fourth Amendment malicious prosecution

claim, Brazil must allege “(1) the defendant initiated a criminal proceeding; (2) the criminal

proceeding ended in his favor; (3) the defendant initiated the proceeding without probable

cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to

justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of

seizure as a consequence of a legal proceeding.” Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir.

2007) (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). A law enforcement

officer may be liable for malicious prosecution where he “influenced or participated in the

decision to institute criminal proceedings.” Halsey v. Pfeiffer, 750 F.3d 273, 297 (3d Cir. 2014)

(citing Sykes v. Anderson, 625 F.3d 294, 308–09, 317 (6th Cir. 2010).

A Fourth Amendment malicious prosecution claim is “intended to redress [the]

deprivation of liberty accompanying prosecution, not prosecution itself.” DiBella v. Borough of

Beachwood, 407 F.3d 599, 603 (3d Cir. 2005); see Gallo, 161 F.3d at 222–24 (citing Albright v.

Bright, 510 U.S. 266, 278-79 (1994)). The constitutional component of the claim also requires

a showing of a loss of liberty beyond simply showing an unlawful arrest. Merkle, 211 F.3d at

792 (citing Gallo v. City of Philadelphia, 161 F.3d 217, 225 (3d Cir. 1998)). “The claim arises

from the prosecution, not the arrest. The alleged seizure must emanate from the prosecution,

and ‘must occur chronologically after the pressing of charges.’” Roberts v. Caesar's

Entertainment, Inc., 72 F. Supp. 3d 575, 581 (E.D. Pa. 2014) (citing Basile v. Twp. of Smith, 752

F. Supp. 2d 643, 659 (W.D. Pa. 2010)). It therefore follows that events that proceeded the

initiation of prosecution, such as those between the initial encounter with the police and the

filing or initiation of formal charges, are not the proper focus of or basis for a malicious

prosecution claim. Roberts, 72 F. Supp. 3d at 581. Here, Commonwealth Defendants assert

they cannot be held liable for malicious prosecution because, while the criminal proceedings

may have ended favorably for Brazil, he has failed to allege the other four elements of a

malicious prosecution claim. (Doc. 45, at 3). The Court will review each of the challenged

elements.

1. Initiation of Criminal Proceedings

First, Brazil must show Commonwealth Defendants “initiated proceedings” against

him. For malicious prosecution claims implicating law enforcement, a plaintiff must plead

facts demonstrating that the officers concealed or mispresented material facts such that they

“influenced or participated in the decision to institute criminal proceedings[.]” Halsey, 750

F.3d at 297. These facts need not be presented directly to the district attorney, attorney

general, or prosecutor, but must somehow influence the State’s decision to institute criminal

proceedings. See Thomas v. City of Philadelphia, 290 F. Supp. 3d 371, 380 (E.D. Pa. 2018).

In this case, Brazil sets forth well-pleaded facts indicating Commonwealth Defendants

concealed and misrepresented material facts. Halsey, 750 F.3d at 297. In his second amended

complaint, Brazil alleges “Mulvey and McHugh knowingly and deliberately, or with a

reckless disregard for the truth, made false statements or omissions that create a falsehood in

their affidavit of probable cause and criminal complaint. Their false statements were

unquestionably material to determining whether there was probable cause [for] Mr. Brazil’s

arrest.” (Doc. 41, ¶ 122). Beyond this broad allegation, Brazil details a number of specific

statements Commonwealth Defendants swore to be true in their affidavit of probable cause

and criminal complaint but knew to be “false and misleading.” (Doc. 41. ¶ 105(a-s)). One of

several examples of such allegations is as follows. Brazil highlights this statement sworn to be

true by Commonwealth Defendants: “‘While 2018 water test results were forwarded by Mr.

Brazil to the prior SSD administration ie, Kirijan’s administration, water facilities were not

disconnected and no warning signs were placed on them.’” (Doc. 41, ¶ 105(i)). Then, he

alleges:

This statement is a lie and intentionally misleading. First, the

[Commonwealth] Defendants were aware that there was no directive to turn

the water sources off nor was it criminal to replace water fountains with bottled

water. They were further aware that Mr. Brazil was on medical leave when the

2018 water results were received. He dutifully alerted Joseph Slack and the

superintendent. He directed Slack to disconnect the water needed and was told

that it would be done. Defendants admit this. Defendants were at all times

aware of this and intentionally lied in their presentment, affidavit of probable

cause, and criminal complaint.

(Doc. 41, ¶ 105(i)).

Taking this allegation, as well as the numerous others detailed similarly, as true for the

purpose of a motion to dismiss, Brazil has sufficiently alleged that Commonwealth

Defendants intentionally provided the prosecution with false and misleading information,

thus satisfying the “instituted criminal proceedings” element of his malicious prosecution

claim. Cf. Gebhart v. Steffen, 574 F. App'x 156 (3d Cir. 2014) (dismissing a claim for malicious

prosecution because plaintiff made “no effort to identify the misrepresented facts or describe

how the charges were exaggerated and baseless.”).

2. Probable Cause

Second, Brazil must allege Commonwealth Defendants instituted proceedings against

Brazil without probable cause. Johnson, 477 F.3d at 81-82. In this case, the parties’ arguments

regarding the probable cause element center on the applicability of the

presentment/indictment presumption of probable and whether it should be rebutted. (Doc.

45, at 15-18; Doc. 55, at 13-18).

The existence of probable cause is an absolute defense to a malicious prosecution

action. See Givens v. Wal-Mart Stores, Inc., No. 22-2989, 2023 WL 7144628, at *2 (3d Cir. Oct.

31, 2023). “The plaintiff has the burden of proving lack of probable cause and despite the

difficulty of establishing a negative, the requirement is rigidly enforced.” Martinez v. E.J.

Korvette, Inc., 477 F.2d 1014, 1016 (3d Cir. 1973). Probable cause exists “whenever reasonably

trustworthy information or circumstances within a police officer's knowledge are sufficient to

warrant a person of reasonable caution to conclude that an offense has been committed by

the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2022) (citing Beck

v. Ohio, 379 U.S. 89, 91 (1964)).

Both a grand jury indictment and a presentment constitutes prima facie evidence of

probable cause. Rose v. Bartle, 871 F.2d 331, 352 (3d Cir. 1989). However, “a grand jury

indictment or presentment does not suffice as evidence of probable cause for purposes of a

malicious prosecution action where the indictment or presentment was procured by fraud,

perjury or other corrupt means.” Rose, 871 F.2d at 352. In this case, even though Brazil

concedes that a presentment was secured against him, thus triggering the presumption, the

second amended complaint “enumerates 19 specific examples of [Commonwealth]

Defendants misrepresenting information” to secure that presentment. (Doc. 41, ¶ 105(a-s);

Doc. 55, at 16). Thus, while the presumption may apply, Brazil has sufficiently rebutted it by

alleging the presentment was secured “by fraud, perjury, and other corrupt means.” (Doc.

41); Rose, 871 F.2d at 352. See Xi v. Haugen, 68 F.4th 824, 841 (3d Cir. 2023) (finding Plaintiff

successfully rebutted the probable cause presumption because “the Complaint alleged at least

seven discrete instances of [Defendant] intentionally, knowingly, and/or recklessly providing

false information that led to [Plaintiff’s prosecution.”). Accordingly, he has satisfied his

pleading burden as to the probable cause element of his claim.

3. Malicious Intent

Next, regarding the fourth element, Brazil must plead facts that establish

Commonwealth Defendants “acted maliciously or for a purpose other than bringing the

plaintiff to justice.” Johnson, 477 F3d at 81-82. “Actual malice in the context of malicious

prosecution is defined as either ill will in the sense of spite, lack of belief by the actor himself

in the propriety of the prosecution, or its use for an extraneous improper purpose.” Vanderklok

v. United States, No. CV 15-00370, 2016 WL 4366976, at *16 (E.D. Pa. Aug. 16, 2016), rev'd

in part, appeal dismissed in part, 868 F.3d 189 (3d Cir. 2017), and order vacated on reconsideration,

No. CV 15-0370, 2018 WL 10435272 (E.D. Pa. Apr. 23, 2018) (quoting Lee v. Mihalich, 847

F.2d 66, 70 (3d Cir. 1988), abrogated on other grounds, Albright, 510 U.S. 266). As explained by

the Third Circuit in Boseman v. Upper Providence Township, simply stating that officers acted

with malice is insufficient to sustain a malicious prosecution claim. 680 F. App'x 65, 69 (3d

Cir. 2017). To satisfy his pleading burden, Brazil must plead Commonwealth Defendants’

malice beyond a “conclusory allegation.” Boseman, 680 F. App'x at 69. However, “[m]alice

may be inferred from the absence of probable cause,” so long as the probable cause factor is

sufficiently plead. Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993), abrogated on other

grounds, Albright v. Bright, 510 U.S. 266, 266 (1994)); see Boseman, 680 F. App'x at 69; see also

Henderson v. City of Philadelphia, 853 F. Supp. 2d 514, 419 (E.D. Pa. 2014). Because Brazil has

sufficiently alleged that Commonwealth Defendants lacked probable cause, malice may be

inferred at this stage of the pleadings.

4. Deprivation of Liberty

Lastly, regarding element five, Brazil must allege a “deprivation of liberty consistent

with the concept of seizure as a consequence of the legal proceeding.” Johnson, 477 F.3d at

81-82. This deprivation of liberty must be within the meaning of the Fourth Amendment and

must occur because of the malicious prosecution—after charges are pressed. Basile v. Twp. of

Smith, 752 F. Supp. 2d 643, 659 (W.D. Pa. 2010).

Brazil was arrested on September 30, 2020, “confined against his will” and charged

with serious criminal charges. (Doc. 11, ¶¶ 77, 94, 107). This alone is sufficient to satisfy this

element. See Black v. Montgomery Cty., 835 F.3d 358, 368 (3d Cir. 2016), as amended (Sept. 16,

2016) (“A traditional arrest by an officer is a commonly understood type of seizure.”) (citing

Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011)). Thus, Brazil’s allegations are sufficient to satisfy

the deprivation of liberty element of his malicious prosecution claim. See Brazil v. Scranton Sch.

Bd., No. 3:22-CV-01514, 2023 WL 5916470, at *10 (M.D. Pa. Sept. 11, 2023).

C. BRAZIL’S FALSE IMPRISONMENT AND FALSE ARREST CLAIMS UNDER SECTION

1983

Commonwealth Defendants move to dismiss Count IV of the second amended

complaint, arguing Brazil’s false imprisonment and false arrest claims should be dismissed for

lack of probable cause. (Doc. 45, at 22). Brazil maintains his same argument for probable

cause as discussed supra. (Doc. 55, at 13-18). To sustain a claim for false imprisonment and

false arrest, a plaintiff again must allege defendants lacked probable cause. See Etzle v. Glova,

No. 3:22-CV-00139, 2023 WL 2578254, at *8 (M.D. Pa. Mar. 20, 2023). Because the Court

has determined that Brazil sufficiently alleged Commonwealth Defendants lacked probable

cause, Commonwealth Defendants’ motion to dismiss these claims is DENIED. Cruz v. City

of Pottsville, No. 3:21-CV-00283, 2022 WL 2733207, at *7 (M.D. Pa. May 19, 2022), report and

recommendation adopted, No. 3:21-CV-283, 2022 WL 2132844 (M.D. Pa. June 14, 2022)

(denying a motion to dismiss a false arrest and false imprisonment claim where, [a]t [the

motion to dismiss] stage, Plaintiffs have at least alleged that the arresting officers had no

probable cause or lawful reason to seize them, yet there did so anyway.”).

D. MALICIOUS ABUSE OF PROCESS UNDER SECTION 1983

Commonwealth Defendants move to dismiss Count III of the second amended

complaint, Brazil’s malicious use and abuse of process claim asserted under Section 1983.

(Doc. 41, ¶¶ 136-146; Doc. 45, at 24-26). “[A] section 1983 claim for malicious abuse of

process lies where ‘prosecution is . . . used for a purpose other than that intended by the law.’”2

Rose, 871 F.2d at 350 n.17 (quoting Jennings v. Shuman, 567 F.2d 1213, 12178 (3d Cir. 1977).

“To establish an abuse of process claim, ‘there must be some proof of a definite act or threat

not authorized by the process, or aimed at an objective not legitimate in the use of [the]

process.’” Moss v. Miller, No. 1:18-CV-2122, 2019 WL 3294874, at *6 (M.D. Pa. June 24,

2019), report and recommendation adopted, No. 1:18-CV-2122, 2019 WL 3288191 (M.D. Pa.

July 22, 2019) (quoting Cash v. U.S. Dep't of Homeland Sec., No. 18-CV-2114, 2018 WL

2445678, at *6 (E.D. Pa. May 31, 2018) (citation omitted). “[T]here is no cause of action for

abuse of process if the claimant, even with bad intentions, merely carries out the process to

its authorized conclusion.” Cameron v. Graphic Mgmt. Assocs., 817 F. Supp. 19, 21 (E.D. Pa.

1992).

In his second amended complaint, Brazil alleges that Commonwealth Defendants

abused the legal process by filing a probable cause affidavit they knew contained false and

misleading information. (Doc. 41, ¶ 139). Brazil also alleges that, beyond Commonwealth

2 “[T]he presence or absence of probable cause, [i.e., whether or not process is initiated

legitimately,] is irrelevant to malicious abuse of process.” Jennings, 567 F.2d at 1217.

Defendants’ actions, the Attorney General was motivated to prosecute Brazil to gain media

attention and held a press conference “’dog and pony’ show” to do exactly that. (Doc. 41, ¶¶

107-109). Where Brazil’s malicious abuse of process claim fails is in alleging facts that connect

the Commonwealth Defendant’s actions to what Brazil argues was the Attorney General’s

unlawful purpose in bringing charges. Brazil fails to allege Commonwealth Defendants

pursued charges against Brazil solely for the purpose of gaining media attention for the

Attorney General.

Other than stating “[t]he [Commonwealth] Defendants went along with the AG’s

office’s political stunt (i.e. their press conference) following the discovery of lead in Flint,

Michigan schools because it made for good headlines. This can be the only reasonable

explanation given the facts of this case,” and the conclusory allegation that Commonwealth

Defendants “facilitated this charade,” Brazil does not provide any facts that support

Commonwealth Defendants pursued charges against Brazil because of the Attorney

General’s desire for media attention. (Doc. 41, ¶¶ 107-09). Commonwealth Defendants are

not the Office of Attorney General and, because they are sued in their individual capacities,

the actions of the Office of Attorney General, a separate legal entity, cannot be contributed to

Commonwealth Defendants. See Brazil v. Scranton Sch. Bd., No. 3:22-CV-01514, 2023 WL

5916470, at *19 (M.D. Pa. Sept. 11, 2023). Also, Brazil alleges no additional facts to support

his argument that Commonwealth Defendants brought charges against him for a purpose

other than carrying out the legal process “to its authorized conclusion” even if “their

intentions were bad.” Cameron, 817 F. Supp. at 21. Accordingly, Commonwealth Defendants’

motion to dismiss Count III will be GRANTED without prejudice and Brazil’s malicious use

and abuse of process claims are DISMISSED.

E. BRAZIL’S STATE AND COMMON LAW CLAIMS AND SOVEREIGN IMMUNITY

Commonwealth Defendants move to dismiss Brazil’s state law claims from Count II

and Count IV for malicious prosecution, false imprisonment, and false arrest arguing they are

barred by sovereign immunity. (Doc. 45, at 23-24). Brazil does not respond to this argument

in his briefing. (Doc. 55).

Under Pennsylvania law, the Commonwealth, its agencies and employees enjoy broad

immunity from most state law tort claims, as the General Assembly has by statute provided

that “the Commonwealth, and its officials and employees acting within the scope of their

duties, shall continue to enjoy sovereign immunity and official immunity and remain immune

from suit except as the General Assembly shall specifically waive the immunity.” 1 Pa. Cons.

Stat. § 2310; see also Moore v. Commonwealth, 538 A.2d 111, 115 (Pa. Commw. Ct. 1988) (“In

other words, if the Commonwealth is entitled to sovereign immunity under Act 152, then its

officials and employees acting within the scope of their duties are likewise immune”). This

grant of immunity “applies to Commonwealth employees in both their official and individual

capacities, so long as the employees are ‘acting within the scope of their duties.’” Larsen v.

State Employees' Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa. 2008). Conduct of an employee

is within the scope of employment if “‘it is of a kind and nature that the employee is employed

to perform; [and] it occurs substantially within the authorized time and space limits ....’”

Brautigan v. Fraley, 684 F. Supp. 2d 589, 593-94 (M.D. Pa. 2010); see also Faust v. Dep't of

Revenue, 592 A.2d 835 (1991) (holding that a Commonwealth employee was protected under

sovereign immunity from liability from intentional acts which caused emotional distress when

he was acting within the scope of his duties).

Without question, a police officer’s acts of investigating criminal conduct, filing

criminal charges, and arresting individuals suspected to have committed crimes are within the

scope of his employment. See, e.g. Ginter v. Skahill, No. 04-2444, 2006 WL 3043083 at *12

(E.D. Pa. Oct. 17, 2006) (holding that the trooper “was acting within the scope of his duties

as a Pennsylvania State Trooper when he investigated and applied for arrest warrants for

Plaintiffs,” and was immune from “claims of false imprisonment, false arrest and malicious

prosecution”). “Under Pennsylvania law, even unauthorized acts may be within the scope of

employment ‘if they are clearly incidental to the master’s business.’” Brumfield v. Sanders, 232

F.3d 376, 381 (3d Cir. 2000) (quoting Shuman Estate v. Weber, 419 A.2d 169 (Pa. Super. 1980)).

“Where a state trooper is on duty and investigating a crime throughout the duration of the

alleged offenses, [he] is acting within the scope of his employment and sovereign immunity

will require the dismissal of state law claims against [him].” DeForte v. Borough of Worthington,

364 F.Supp.3d 458, 487 (W.D. Pa. 2019); see also La Frankie v. Miklich, 618 A.2d 1145, 1149

(Pa. 1992) (holding that a state trooper was immune from liability for false prosecution, false

arrest, and abuse of process claims).

With this law in mind and in consideration of Brazil’s failure to oppose

Commonwealth Defendants’ arguments, Commonwealth Defendant’s motion to dismiss is

GRANTED and Brazil’s state law claims asserted in Count II and Count IV against

Commonwealth Defendants in their official capacities are DISMISSED with prejudice as

barred by sovereign immunity.

IV. LEAVE TO AMEND

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

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

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

2002). In civil rights cases, District Courts are to follow this instruction “even [if] the plaintiff

[is] represented by experienced counsel [and] never sought leave to amend.” Shane v. Fauver,

213 F.3d 113, 116 (3d Cir. 2000) (citing Dist. Council 47 v. Bradley, 795 F.2d 310, 316 (3d Cir.

1986)). In this case, Brazil has already filed two amended complaints, and does not request

further amendment in the brief in opposition to Commonwealth Defendants’ motion to

dismiss. (Doc. 55). Accordingly, the Court will not grant leave to amend, and this matter shall

proceed on the amended complaint. See Rothermel v. Dauphin Cty., Pennsylvania, No. 1:16-CV-

1669, 2018 WL 4680093, at *14 (M.D. Pa. Sept. 28, 2018) (denying leave to amend where

plaintiffs did not request further amendment in Rule 12 briefing).

V. CONCLUSION

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

DENIED in part. (Doc. 41). As to the claims detailed in Count II and Count IV of the second

amended complaint as asserted under Section 1983, Commonwealth Defendants’ motion is

DENIED. As to Brazil’s malicious abuse of process claim detailed in Count III, Brazil’s

claims asserted under the Fourteenth and Fifth Amendment against Commonwealth

Defendants, and Brazil’s state law claims asserted in Count II and Count IV against

Commonwealth Defendants, Commonwealth Defendants’ motion is GRANTED and those

claims are DISMISSED. Leave to amend is DENIED and this case with proceed on the

remaining claims in the second amended complaint.

An appropriate Order follows.

s/ Karoline Mehalchick

Dated: June 3, 2024

KAROLINE MEHALCHICK

United States District Court Judge