# SMITH v. WASHINGTON AREA HUMANE SOCIETY

> District Court, W.D. Pennsylvania · October 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10416152

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** October 29, 2020
- **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/10416152

## How later opinions describe it (automated extraction)

- holding plaintiffs bald allegations of “physical harm” and “physical manifestations of emotional distress” were not enough, without more, to set forth a plausible ITED claim

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JAMES SMITH, ef al.,
Plaintiffs, Civil Action No. 2:19-cv-1672
v. Hon. William S. Stickman IV
WASHINGTON AREA HUMANE
SOCIETY, et al.,
Defendants.

MEMORANDUM OPINION
WILLIAM S. STICKMAN IV, District Judge
Plaintiffs have asserted several claims under 42 U.S.C. § 1983 and Pennsylvania law
arising out of an allegedly illegal search and seizure of pets and other property from their home,
as well as a subsequent criminal prosecution that was dismissed shortly after initiation.
Defendants have moved to dismiss all of the allegations in Plaintiffs’ Complaint. (ECF Nos. 7
and 13). For the reasons set forth below, the Motions to Dismiss will be granted in part and
denied in part. Plaintiffs will be given leave to file an amended complaint within twenty-one
days.
FACTUAL AND PROCEDUAL HISTORY
Plaintiffs in this action are James Smith (“JS”), Sally Smith (“SS”), Kayla Rotellini
(“KR”), Michael Rotellini (“MR”) and Antionette Maczko (“AM”). JS and SS are married and
the parents of KR. KR is married to MR. AM is SS’s mother. Plaintiffs live together in a home
in Washington County, along with KR’s and MR’s minor children and a number of pets. It was
the pets that gave rise to the chain of events leading to this lawsuit.

On August 25, 2019, a puppy owned by KR and MR escaped from their home. Shortly
thereafter, it was found by Lacey Simpson (“Simpson”). While not specifically alleged, the
Complaint suggests that Simpson contacted either the Jefferson Township Police Department or
Defendant Gene Karch (“Karch”) about the puppy. Karch, the Chief of Police in Jefferson
Township, allegedly contacted Defendants Glen Thomson (“Thomson”) and Maranda Combs
(“Combs”), humane officers from the Defendant Washington Area Humane Society (“WAHS”)
about the puppy.
Plaintiffs allege that Karch identified the puppy as belonging to KR and MR. He was
able to do so, they claim, because he is related to them by marriage. It is alleged that Karch and
his family have “an unstable and volatile history” with Plaintiffs’ family. Perhaps because of
this history, Plaintiffs aver that Karch made “false allegations of animal abuse against the
Plaintiffs” in order to “harass and attack” them.!
Ultimately, Ms. Simpson brought the puppy to WAHS, where it was diagnosed with a
contagious disease and euthanized. Nobody from WAHS ever contacted Plaintiffs to report that
the puppy had been found or to discuss its health, even though, because of Karch’s
representations, WAHS was aware that KR and MR owned the puppy.
Plaintiffs allege that on or about September 4, 2019, Thomson submitted an affidavit of
probable cause containing false allegations in order to obtain a warrant for the search of
Plaintiffs’ residence and the seizure of “any and all animals, alive, dead and/or unborn.” The
warrant was executed by Thomson and Combs the same day. Plaintiffs allege that Thomson and

| Plaintiffs aver that there had been previous false allegations of animal abuse lodged against
them. They claim that WAHS “through other unnamed humane officers had previously
investigated false animal abuse allegations against the Plaintiffs, which were proven to be
unfounded and patently false.” Such allegations included claims that they engaged in “burning
animals and drinking animal blood.” (ECF No. 1, §§ 23-24).

Combs searched the whole house, including “SS’s underwear drawers, closets, medicine
cabinets, inside computer desk drawers, trash, yard and burn bin.” (ECF No. 1, $37). Thomson
and Combs seized various pets, including a rabbit, kittens, birds and JS’s 19-year old dog. (ECF
No. 1, 7 39). Plaintiffs accuse Thomson and Combs of illegally taking $320.00 in cash from a
desk drawer during the search. (ECF No. 1, 9 49-51).
On September 25, 2019, Thomson charged KR and MR with “cruelty to animals” and
“neglect of antmals—Vet care” in connection with the death of their puppy. (ECF No. 1, { 55).
However, on October 1, 2019, all of Plaintiffs’ pets had been returned to them (all of them had
been spayed and/or neutered by WAHS). On October 11, 2019, all charges against them were
dropped.” (ECF No. 1, §§ 58-59).
Plaintiffs filed this action on December 27, 2019. Counts I through IV assert claims
under 42 U.S.C. § 1983 for Unlawful Search and Seizure, Malicious Prosecution, Retaliation and
§ 1983 Conspiracy. Counts V through VII assert claims under Pennsylvania state law for
Trespass, Trespass to Chattel and Intentional Infliction of Emotional Distress. Defendants have
moved to dismiss claims asserted against them. The motions have been fully briefed and are ripe
for disposition.
STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (d Cir. 1993). A
plaintiff must allege sufficient facts that, if accepted as true, state a claim for relief that is
plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also

Plaintiffs allege that Thomson, Combs and/or Karch made unfounded and unsupported
allegations to Child and Youth Services (“CYS”) after they completed the search and seizure.
CYS investigators visited the home on September 5, 2019. CYS later issued a letter to Plaintiffs
telling them that the investigation was closed.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must accept all well-pleaded factual
allegations as true and view them in the light most favorable to the plaintiff. See Fowler vy.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
The “plausibility” standard required for a complaint to survive a motion to dismiss is not
akin to a “probability” requirement but asks for more than sheer “possibility.” /gbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that all the
allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555. Facial plausibility is
present when a plaintiff pleads factual content that allows a court to draw the reasonable
inference that the defendants are liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Even
if the complaint’s well-pleaded facts give rise to a plausible inference, that inference alone will
not entitle a plaintiff to relief. Jd. at 682. The complaint must support the inference with facts to
plausibly justify that inferential leap. Jd.
“TA] motion to dismiss may be granted only if, accepting all well-pleaded allegations in
the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds
that plaintiffs claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77,
84 (3d Cir. 2011). Although the Court must accept the allegations in the Complaint as true, it is
“not compelled to accept unsupported conclusions and unwarranted inferences, or a legal
conclusion couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.
2007) (citations omitted).

ANALYSIS
A. WAHS’s Motion to Dismiss will be granted without prejudice for
failure to plead a plausible Monell claim at Counts I and IT.
WAHS is named in only two counts—Count I (unlawful search and seizure) and Count
III (retaliation). Both counts are asserted under 42 U.S.C. § 1983. § 1983 provides a cause of
action against any person who, acting under the color of state law, deprives another of his or her
federal rights, and, under certain circumstances, the municipal employer and/or supervisor of
such a person. To obtain relief under § 1983, a plaintiff must make a two-prong showing: (1)
that s/he suffered a violation of a right secured by the Constitution and laws of the United States;
and (2) that the alleged deprivation was committed by a person acting under the color of state
law. See Karns v. Shanahan, 879 F.3d 504, 520 (3d Cir. 2018) (citation omitted).
Private party actors are not liable under § 1983. Rather, “Section 1983 subjects to
liability those who deprive persons of federal constitutional or statutory rights “under the color of
any statute, ordinance, regulation, custom or usage’ of a state.” Leshko v. Servis, 423 F.3d 337,
339 (Gd Cir. 2005) (quoting 42 U.S.C. § 1983). Thus, to maintain an action under § 1983, a
plaintiff “must allege that she was deprived of a federal constitutional or statutory right by a state
actor.” Jd. (citation omitted). In examining WAHS’s Motion to Dismiss, a threshold issue is
whether WAHS was a municipal entity or was otherwise acting under the color of state law. The
Complaint merely asserts that WAHS “is a Pennsylvania non-profit organization, society or
association” that “employs a humane investigation officer pursuant to 22 Pa. C.S.A. § 3701.”
(ECF No. 1, 410). The Court must first determine whether WAHS was a state actor.
Under the Pennsylvania Crimes Code, certain humane societies or associations may
employ agents who “shall have the same powers to initiate criminal proceedings provided for
police officers by the Pennsylvania Rules of Criminal Procedure.” 18 Pa. C.S.A. § 5551.

Humane society police officers are governed by the provisions of the Pennsylvania Code dealing
with detectives and private police officers and are, specifically, codified at 22 Pa. C.S.A. § 3701
et seg. A humane society may appoint an agent to be a humane society police officer by
applying to a court of common pleas. 22 Pa. C.S.A. § 3704. Once appointed, the humane
society police officer has the authority to act as provided by 18 Pa. C.S.A. § 5551. Plaintiffs
have pled that WAHS is a nonprofit organization that employs a humane investigation officer
pursuant to 22 Pa. C.S.A. § 3701. This is sufficient to maintain a claim against WAHS as a state
actor under § 1983. But, that is not the end of the inquiry as to whether Plaintiffs have
sufficiently pled their claims against WAHS.
A municipal entity cannot be held liable pursuant to Section 1983 under the theory of
respondeat superior. Monell v. Dep’t Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978). Instead,
municipal entities, including school districts, may only be held liable under Section 1983 on (1)
an express municipal policy, such as an ordinance, regulation, or policy statement, id. at 694, (2)
a “widespread practice that, although not authorized by written law or express municipal policy,
is ‘so permanent and well settled as to constitute a “custom or usage” with the force of law,’”
City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co.,
398 U.S. 144, 167-68 (1970)), or (3) the decision of a person with “final policymaking
authority.” Jd. at 123. See also Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 (1986). A
municipal entity may be held liable under Section 1983 only when the enforcement of the
municipal policy or practice was the “moving force” behind the violation of a plaintiffs federal
protected right. Bd. of Cnty. Comm’rs vy. Brown, 520 U.S. 397, 400 (1997); City of Canton v.
Harris, 489 U.S. 378, 388-89 (1989). Finally, it is not sufficient for a plaintiff to merely offer
“threadbare recitals of the elements needed for a Monell claim.” Anderson v. City of

Philadelphia, No. 16-5717, 2017 WL 550587, *6 (E.D. Pa. Feb. 10, 2017) (citation omitted). A
Monell claim cannot survive a motion to dismiss where it merely repeats the necessary Monell
elements and contains no factual support as to a policy, custom, or policymaker responsible for
the alleged constitutional violation. Wood v. Williams, 568 F. App’x 100, 104 (3d Cir. 2014).
Plaintiffs’ Complaint fails to assert a legally tenable Monell claim against WAHS. It
alleges only scant allegations about acts or omission of WAHS relative to their Monell claim.
They plead:
42. Defendant WAHS has a duty to properly train, control, discipline and/or
supervise its agents, Defendants Thomson and Combs.
43. More specifically, Defendant WAHS has a duty to properly train the
named Defendants on proper search warrants and probable cause.
44. Defendant WAHS failed to properly train, control, discipline and/or
supervise its agents, Defendants Thomson and Combs, in the proper
method of obtaining search warrants.
45. Defendant WAHS’s failure to properly train, control and/or supervise
Defendants Thomson and Combs in the proper method of obtaining search
warrants created a substantial risk of the constitutional violations
identified herein.
46. Plaintiff believes, and therefore avers, that Defendant WAHS allowed the
named Defendants to engage in a course, pattern, or practice of improper,
unlawful and malicious conduct, and that it ratified, endorsed, acquiesced
to, or approved of the named Defendants’ unlawful conduct.
(ECF No. 1, §§] 42-46). The Complaint also alleges that “Defendant WAHS provided
Defendants Thomson and Combs with resources and otherwise aided and abetted Defendants’
unlawful search and seizures” (ECF No. 1, § 63, in relevant part); and that Defendants Thomson
and Combs performed an illegal search and seizure “through their authority and training
provided by Defendant WAHS.” (ECF No. 1, § 81, in relevant part). These allegations are
general, vague and, indeed, threadbare recitals of the elements needed for a Monell claim. They

contain no factual support as to any policy, custom, or policymaker responsible for the alleged
constitutional violation. Plaintiffs are not required to offer evidence sufficient to prove their case
in their Complaint, but they have to do more than merely recite the elements of a Monell claim.
They have to plead more than they have.
In claims arising under § 1983, a district court must provide a plaintiff with leave to
amend a claim subject to dismissal unless the court finds that amendment would be futile.
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245-46 (3d Cir. 2008). Here, the Court finds that
although Plaintiffs have, at this point, failed to assert a cognizable Monell claim against WAHS,
it does not find that amendment would be futile. It is possible that Plaintiffs will be able to point
to specific acts or omissions that could be sufficient to maintain a Monell claim. As such,
Plaintiffs’ claims against WAHS will be dismissed without prejudice. Plaintiffs are given leave
to file an amended complaint within twenty-one days.

B. Plaintiffs have adequately asserted a Fourth Amendment claim at Count I.
Count I alleges that Defendants committed an illegal search of Plaintiffs’ residence and
illegally seized their property. Although the search and seizure was conducted pursuant to a
warrant, Plaintiffs allege that the warrant was faulty because it was based on false information
provided by certain defendants. The existence of a warrant does not preclude a claim for illegal
search and seizure if the search warrant was invalid as a matter of law because it was based on
false statements included in the affidavit of probable cause. Sherwood yv. Mulvihill, 113 F.3d
396, 399 (3d. Cir. 1997). To state a § 1983 claim based upon an allegedly invalid search
warrant, “the plaintiff must allege (1) the state actor knowingly and deliberately, or with a
reckless disregard for the truth, made false statements or omissions that create a falsehood in
applying for the warrant, and (2) that ‘such statements or omissions are material or necessary to

the finding of probable cause.’” Allen y. Pa. Soc’y for Prevention of Cruelty to Animals, 488 F.
Supp. 2d 450, 464 (M.D. Pa. 2007) (quoting Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir.
2000)). A false assertion of fact “is made with reckless disregard when ‘viewing all the
evidence, the affiant must have entertained serious doubts as to the truth of his statements or had
obvious reasons to doubt the accuracy of the information he reported.’” Wilson, 212 F.3d at 788
(quoting United States v. Clapp, 46 F.3d 795, 800 (8" Cir. 1995)).
Plaintiffs allege that Karch made “false claims” against them, which “initiated the chain
of events that eventually led to the constitutional violations suffered by the Plaintiffs.” (ECF No.
1, § 62). These “false claims” are alleged to have been unspecified “false allegations of animal
abuse against the Plaintiffs which Defendant knew, or should have known were patently false.”
(ECF No. 1, 4 19). These “false claims” are suggested to have been made to Thomson and that
Thomson “knew, or should have known, were materially false.” (ECF No. 1, § 32). Thomson
used these allegedly false allegations to obtain a warrant, which was executed by him, Combs
and Karch. (ECF No. 1, Jf 32-36). Plaintiffs assert that Thomson and Combs knew or should
have known that there was no animal abuse in Plaintiffs’ home because they had previously been
investigated and exonerated for claims of animal abuse.
At the pleading stage, Plaintiffs have adequately pled a claim of illegal search and seizure
against Karch, Thomson and Combs. They have pled that Karch, Thomson and Combs
knowingly and deliberately, or with a reckless disregard for the truth, made false statements or
omissions that created a material falsehood in applying for the warrant. They have also alleged
that these false statements were critical to their obtaining the warrant. There is no question that
the allegations in the Complaint are not well developed vis-a-vis the way that Karch’s
misrepresentations influenced Thomson to seek a warrant and the manner in which that warrant

was obtained. However, Plaintiffs do not have to prove their case in their Complaint. Whether
they ultimately adduce enough evidence to proceed to a jury is a question for another day. They
will be given the opportunity to explore their claims in discovery. Karch, Thomson and Combs’
Motions to Dismiss Count I is denied.
C. The First Amendment/Malicious Prosecution claim at Count II is
dismissed without prejudice.
At Count II, Plaintiffs KR and MR claim that Thomson (alone) violated their rights under
the First Amendment by initiating a malicious prosecution against them. They allege that
Thomson initiated a baseless prosecution against them without probable cause and that it was a
result of “their familial association and the unstable and volatile relationship between Karch’s
and Plaintiffs’ families, in direct violation of the First Amendment of the United States
Constitution.” (ECF No. 1, J 76).
A malicious prosecution claim under § 1983 differs from its common law counterpart in
that a plaintiff must plead that a specific constitutional right was violated by the prosecution.
Gallo v. City of Philadelphia, 161 F.3d 217, 221-23 (3d Cir. 1998) (citing Albright v. Oliver, 510
U.S. 266, 274 (1994)). While the Fourth Amendment is most commonly cited in support of a §
1983 malicious prosecution claim, it is possible for one to be based on other Amendments. See
Torres v. McLaughlin, 163 F.3d 169, 173 Gd Cir. 1998) (“We do not read Albright to hold that a
malicious prosecution claim can only be based in a Fourth Amendment violation. Accordingly, a
section 1983 malicious prosecution claim may also include police conduct that violates the
Fourth Amendment, the procedural due process clause or other explicit text of the Constitution.”’)
A violation of the First Amendment may serve as the constitutional basis of a malicious
prosecution claim. Olasz c. Welsh, 301 F. App’x 142, 144-45 (3d Cir. 2008).

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The threshold question in determining whether Plaintiffs KR and MR have pled a
cognizable malicious prosecution claim under § 1983 is whether they have asserted a violation of
an explicit constitutional provision relating to the prosecution. They allege that Defendant
Thomson initiated the prosecution against them maliciously and without probable cause and as
“a direct and proximate result of their familial association and the unstable and volatile
relationship between Karch’s and Plaintiffs’ families, in direct violation of the First Amendment
to the United States Constitution.” (ECF No. 1, § 76). In other words, KR and MR allege that
Thomson initiated the prosecution at the behest of Karch because of the “unstable and volatile
history” between Karch and KR and MR, to whom Karch is related by marriage. These
allegations are insufficient to maintain a plausible claim based on the First Amendment.
Plaintiffs correctly argue that the First Amendment protects the right to form intimate
associations. Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 441 (Gd Cir.
2000) (“The Supreme Court has held that there are two kinds of freedom of association that are
constitutionally protected: intimate association and expressive association.”). “The right of
intimate association involves an individual’s right to enter into and maintain intimate or private
relationships free of state intrusion.” Jd. at 441. “Family relationships are the paradigmatic form
of protected intimate associations, as they ‘by their nature involve deep attachments and
commitments to the necessarily few other individuals with whom one shares not only a special
community of thoughts, experiences and beliefs but also distinctively personal aspect of one’s
life.’” Id. at 441-42 (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 619-20 (1984)).
There is no doubt that the law protects MR’s and KR’s right to form and maintain an
intimate association—their marriage and family. Their malicious prosecution claim fails,
however, because they did not plausibly assert a violation of this right. All they pled was that

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there existed a strained family relationship between Karch and their family and that based on that
strained relationship Karch convinced Thomson to initiate a baseless prosecution. They do not
allege that they were prosecuted because of their attempt to associate with one another. Nor do
they allege that the prosecution was designed to hinder their ability to do so. Even reading the
Complaint in a light most favorable to Plaintiffs, the Court does not see a plausible claim that the
prosecution violated the First Amendment. Count II will, therefore, be dismissed. The dismissal
will be without prejudice, and Plaintiffs will be afforded an opportunity to amend their
Complaint within twenty-one days.
D. Plaintiffs have not pled a plausible retaliation claim under the First
Amendment at Count HI.
Count III asserts that Defendants engaged in actionable retaliation under § 1983 against
Plaintiffs. Specifically, Plaintiffs argue that Defendants’ conduct (including the allegedly illegal
search and seizure and malicious prosecution) was in retaliation for the Plaintiffs’ “familial
association and the unstable and volatile relationship between Karch’s and Plaintiffs’ families, in
direct violation of the First Amendment of the United States Constitution.” (ECF No. 1, § 82).
“A claim for retaliation for the exercise of First Amendment rights requires three things:
a constitutionally protected activity, a governmental entity retaliating against the plaintiff and a
causal relationship between the protected activity and the retaliation.” Myers v. Fayette Cnty.,
No. 20-900, 2020 WL 6047566, at *5 (W.D. Pa. Oct. 13, 2020) (citing Eichenlaub v. Twp. of
Indiana, 385 F.3d 274, 282 (3d Cir. 2004)). The essential analysis of this claim is similar to that
employed for the malicious prosecution claim—did Plaintiffs plead a cognizable First
Amendment violation that serves as the foundation of their claim? As with the malicious
prosecution claim, the Complaint is insufficient to assert a retaliation claim under the First
Amendment. Plaintiffs have not pled anything beyond an “unstable and volatile relationship”

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between them and Karch that would support a First Amendment violation. As with the malicious
prosecution claim, Plaintiffs will be afforded the opportunity to amend their Complaint within
twenty-one days.
E. In Count IV, Plaintiffs have adequately pled a conspiracy to violate their
rights under the Fourth Amendment, but not the First Amendment.
Count IV alleges that Thomson, Combs and Karch conspired to violate Plaintiffs’ rights
under the Fourth and First Amendments. Plaintiffs plead, in relevant part:
88. Plaintiffs believe, and therefore aver, that the named Defendants Thomson
and/or Combs knew or should have known, with the exercise of
reasonable caution, that the allegations made by Defendant Karch were
untrue and provided no probable cause for the unlawful actions of the
Defendants Thomson and/or Combs as described more fully hereinbefore
above.
89. Nothwithstanding the foregoing, Defendants Thomson and/or Combs and
Defendant Karch conspired to violate the constitutional rights of the
Plaintiff as described more fully hereinbefore above.
90. Plaintiffs believe, and therefore aver, that Defendant Thomson
intentionally initiated the prosecution of the Plaintiffs without probable
cause as a direct and proximate result of their familial association and the
unstable and volatile relationship between Defendant Karch’s and
Plaintiffs’ families, in direct violation of the First Amendment of the
United States Constitution.
91. Defendant Karch made false allegations against the Plaintiff, and remained
silent and took no action to deter Defendant Thomson and/or Combs from
violating the Plaintiff's rights as aforementioned. The actions and inaction
of Defendant Karch were both in furtherance of the conspiracy.
92. The actions of Defendants Thomson and Combs in seeking, obtaining and
executing a search warrant on Plaintiffs’ property without probable cause,
and the unlawful seizure of Plaintiffs’ property, constituted actions in
furtherance of the conspiracy.
(ECF No. 1, {ff 88-92).
“To demonstrate a conspiracy under § 1983, a plaintiff must show that two or more
conspirators reached an agreement to deprive him or her of a constitutional right ‘under color of

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law.’” Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir. 1993) (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)), abrogated on other grounds by United
Artists Theater Cir., Inc. v. Twp. of Warrington, 316 F. 3d 392 (3d Cir. 2003). “The elements of
a claim of conspiracy to violate federal civil rights are that ‘(1) two or more persons conspire to
deprive any person of [constitutional rights]; (2) one or more of the conspirators performs . . .
any overt act in furtherance of the conspiracy; and (3) that overt act injures the plaintiff in his
person or property or deprives the plaintiff of any right or privilege of a citizen of the United
States... .°” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 294 n.15 (3d Cir. 2018) (quoting
Barnes Foundation v. Twp. of Lower Merion, 242 F. 3d 151, 162 (3d Cir. 2001)). “To show
agreement, he must demonstrate that the state actors named as defendants in the complaint
somehow reached an understanding to deny the plaintiff his rights.” Jd. at 295 (quoting Kost, 1
F.3d at 185)). A plaintiff does not have to prove an agreement with direct evidence. Rather, a
meeting of minds or agreement to conspire may be demonstrated from circumstantial evidence.
Id. “Such circumstantial evidence may include that the alleged conspirators ‘did or said
something . . . to create an understanding,’ ‘the approximate time when the agreement was made,
the specific parties to the agreement, the period of the conspiracy of the object of the
conspiracy.’” Jd. (quoting Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615
F.3d 159, 178-79 (3d Cir. 2010)). Moreover, where a conspiracy between law enforcement
personnel is alleged, “it may manifest as conversations between officers about the incident,
allegedly distorted stories that emerged, an awareness of conflicting stories and irregularities in
the series of official investigations into the incident.” /d (internal quotations omitted).
Critically, “inferring mental state from circumstantial evidence is among the chief tasks of

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factfinders[.]” Jd. (quoting Kedra v. Schroeter, 876 F.3d 424, 444 (3d Cir. 2017)) (internal
quotation marks omitted).
The Court holds that Plaintiffs have adequately pled a conspiracy to violate their rights
under the Fourth Amendment, but not the First Amendment. As a threshold matter, as explained
above, Plaintiffs have pled a cognizable claim for a violation of the Fourth Amendment relative
to the search and seizure of their property. They have not pled a plausible First Amendment
claim. Plaintiffs have plausibly pled not only a violation of the Fourth Amendment but, also,
that one or more of the Defendants have performed the overt acts that caused the violation and
that they have been harmed by the alleged violation.
The critical question is whether Plaintiffs have adequately pled the combination or
meeting of minds between Thomson, Combs and Karch. Plaintiffs specifically pled that
“Thomson and/or Combs knew, or should have known, with the exercise of reasonable caution,
that the allegations made by Defendant Karch were untrue and provided no probable cause,” and
that they “conspired to violate the constitutional rights of the Plaintiff.’ (ECF No. 1, 88, 89).
They also plead that previous false accusations of animal abuse had been made against the
Plaintiffs, which Thomson had reviewed and investigated. (ECF No. 1, 22-25). Nevertheless,
they allege that Defendants agreed to initiate another allegedly baseless prosecution against
Plaintiffs.
The Court recognizes that the Complaint’s allegations about the specific agreement
between Plaintiffs are not detailed and fact laden. However, Plaintiffs are not required to prove
their case in the Complaint. The Court recognizes that it is particularly difficult to plead facts—
before the benefit of discovery—regarding the mindset of alleged conspirators, their
communications and any meeting of the minds. The Court will, therefore, allow Count IV to

15

proceed as to the alleged conspiracy to deprive Plaintiffs of their rights under the Fourth
Amendment. Plaintiffs will be given leave to amend their Complaint within twenty-one days
with regard to the First Amendment component of Count IV.
F. Plaintiffs have adequately pled common law claims for Trespass and
Trespass to Chattel (Counts V and VI).
Plaintiffs have asserted state-law claims for trespass and trespass to chattel against Karch,
Thompson and Combs for entering upon their real property and taking their chattels. Defendants
argue that the claims should be dismissed because they were privileged to enter the property and
seize Plaintiffs’ animals by the warrant that they obtained.
Because the Court is permitting Count I—illegal search and seizure—to proceed, it will
do the same for Counts V and VI. If Plaintiffs can demonstrate that the search and seizure was
premised upon a warrant that was illegally obtained, their justification defense to these claims
will fail. Moreover, they assert that Defendants took property that, ostensibly, was not identified
in the warrant - $320.00 in cash. Defendants cannot stand behind the warrant in defense of this
claim. As such, the Motion to Dismiss Counts V and VI is denied.
G. Plaintiffs have not pled a plausible claim for intentional infliction of
emotional distress (Count VID).
A claim for intentional infliction of emotional distress (“ITED”) requires a plaintiff to
plead: (1) extreme and outrageous conduct; (2) intentional or reckless conduct; (3) conduct
caused the emotional distress; and (4) severe emotional distress. M.S. ex rel. Hall □□□
Susquehanna Twp. School Dist., 43 F. Supp. 3d 412, 430 (M.D. Pa. 2014) (citation omitted). A
plaintiff must allege physical manifestations of the emotional distress. Jd. (citing Reeves v.
Middletown Athletic Ass’n, 866 A.2d 1115, 1122 (Pa. Super. 2004)). It is not enough for a
plaintiff to generically plead the elements of a claim for IED, but rather, sufficient detail must

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be asserted to make out a plausible claim. Jd. at 430-31 (“Although Plaintiffs allege M.S.
suffered ‘physical harm’ as a result of the emotional distress, such a general, non-specific
averment has been found insufficient to survive motions to dismiss.”); see also Dobson v. Milton
Hershey School, 356 F. Supp. 3d 428, 439-40 (M.D. Pa. 2018) (holding plaintiffs bald
allegations of “physical harm” and “physical manifestations of emotional distress” were not
enough, without more, to set forth a plausible ITED claim). Plaintiffs have merely alleged that
they suffered unspecified physical injury. This is not enough. Count VII is dismissed.3
H. Defendants Thomson and Combs’s invocation of immunity is
premature.
Defendants Thomson and Combs argue that they are immune under Pennsylvania
statutory law and principles of qualified immunity. The Court cannot make a determination on
immunity at this time.
Plaintiffs assert that as humane officers they are statutorily protected from civil liability.
The statute provides:
(a) General Rule-—-A humane society police officer acting in good faith and
within the scope of the authority provided under this subchapter shall not be
liable for civil damages as a result of an act or omission in the course of an
investigation or enforcement action.
(b) Nonapplicability—-Subsection (a) shall not apply to an act of omission
intentionally designed to harm or to an act or omission that constitutes gross
negligence or willful, wanton or reckless conduct.
18 Pa. C.S.A. § 5557. The statute’s plain language shows why the Court cannot find that it
confers immunity at this stage in these proceedings. The general rule only applies if the humane
officer was acing “in good faith.” The Complaint specifically pleads that Defendants undertook

3 As a claim arising under the common law, rather than § 1983, the Court is not obligated to
give leave to amend. However, because Plaintiffs are being given the opportunity to amend their
Complaint, the Court will permit them to provide more detailed allegations of physical
manifestations of their emotional distress.
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actionable conduct in bad faith and with malicious motives. Indeed, the statute specifically states
that its conferral of immunity will not apply to acts of “gross negligence or willful, wanton or
reckless conduct.” At this stage, Plaintiffs have made allegations of this type of conduct and will
have an opportunity to make their case. The Court cannot find that Section 5557 provides
immunity.
The Court reaches the same conclusion as to Defendants’ attempt to invoke qualified
immunity. Defendants themselves state that “qualified immunity protects officials from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” (ECF No. 8, p. 17)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Plaintiffs have plausibly pled that
Defendants obtained a legally invalid warrant with false information, perpetrated an illegal
search and seizure, and stole money in the course of the search. They may not be able to
establish any of these allegations, but they will be given the opportunity to develop and present
them. Because Plaintiffs have plausibly asserted a constitutional violation, their invocation of
qualified immunity 1s unavailing.
I. Defendants’ Motion to Strike Plaintiffs’ request for punitive damages
is denied.
As a final matter, Defendants ask the Court to strike Plaintiffs’ request for punitive
damages. The Court denies that request. Plaintiffs will be given an opportunity to build a record
as to Defendants’ conduct. Whether the facts so developed can support a claim for punitive
damages will be revisited at a future stage in this litigation.

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CONCLUSION
For the reasons set forth above, Defendants’ Motions to Dismiss (ECF Nos. 7 and 13) are
granted in part and denied in part. An Order of Court will follow.
BY THE COURT:
tolaal2e Ali § AT or
WILLIAM S. STICKMAN IV
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416152. Public record. Not legal advice.