BOOKER v. BOROUGH OF NORTH BRADDOCK

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KEAIRA BOOKER, )

)

) 2:19-CV-01649-CCW

Plaintiff, )

)

vs. )

)

BOROUGH OF NORTH BRADDOCK, )

LARRY BUTLER, AND ISAAC DANIELE, )

)

)

Defendants. )

Opinion

Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint

for Failure to State a Claim under Fed. R. Civ. P. 12(b)(6). ECF No. 28. For the reasons stated

below, Defendants’ Motion will be GRANTED IN PART and DENIED IN PART.

I. Factual Background

The following factual allegations, relevant to the Court’s ruling on Defendants’ Motion,

are taken from Plaintiff Keaira Booker’s Second Amended Complaint, ECF No. 27.

Plaintiff alleges that on August 19, 2019, she saw Defendant Larry Butler (“Butler”), a

police officer for the Borough of North Braddock (“Borough”), making a traffic stop in the

Borough. Id. at ¶¶ 22–23. Plaintiff claims to have seen Butler questioning an unidentified person

and searching the person’s vehicle. Id. at ¶ 24. From her parked car, Plaintiff began making a

video recording of the encounter. Id. at ¶¶ 23, 25. Butler noticed Plaintiff taking a video,

approached her car, and informed her that she was “blocking the roadway” and “needed to move

on.” Id. at ¶¶ 26, 28. Plaintiff alleges that her car was, in fact, legally parked, but she complied

with Butler’s request anyway, moving her car closer to the curb and again parking. Id. at ¶ 27.

After concluding his interaction with the unnamed person, Butler again approached Plaintiff’s car.

Id. at ¶ 29. Plaintiff also recorded this interaction. Id. at ¶¶ 32–33. Butler demanded to see

Plaintiff’s identification, citing her car as having been illegally parked earlier. Id. at ¶¶ 30-31.

Butler then “threatened to arrest her if she didn’t provide/produce her identification.” Id. at ¶ 34.

Plaintiff disputed Butler’s claim that her car had been parked illegally and asked for his name. Id.

at ¶¶ 32, 35. According to Plaintiff, Butler then “reached through the window of her driver’s side

door, unlocked the door, and forcibly removed [Plaintiff] from her car.” Id. at ¶ 36. Butler arrested

Plaintiff, put her in handcuffs, and instructed another officer to search her. Id. at ¶¶ 37–38.

Plaintiff’s car was towed, and she was taken to the North Braddock Police Station (the

“Station”) where her mother, Jessica Booker, arrived some time later. Id. at ¶¶ 39, 42–43.

According to the Second Amended Complaint, Jessica Booker played the recording from

Plaintiff’s cell phone for Butler, and Butler agreed that Plaintiff’s car had been legally parked.

Plaintiff was eventually released from custody, but the matter did not end there. Id. at ¶¶ 44.

According to the Second Amended Complaint, at some point between Plaintiff’s arrival at

the Station and her subsequent release, Defendant Isaac Daniele (“Daniele”), the Borough’s Chief

of Police, watched the video recording Plaintiff had made on her cell phone. Id. at ¶ 48. Allegedly

recognizing that Butler’s conduct had crossed a line, Butler and Daniele together “manufacture[d]

criminal charges to file against [Plaintiff] to conceal violations of [Plaintiff’s] civil rights.” Id. at

¶ 47. Plaintiff was criminally charged with disorderly conduct under 18 Pa. C.S.A. § 5503. Id. at

¶ 50. The Second Amended Complaint alleges that, as the arresting officer, Butler filled out the

arrest report and citation, which was “signed off on and approved by” Daniele. Id. at ¶¶ 51–52.

Plaintiff was released from custody, after “being…detained for hours.” Id. at ¶ 53. Plaintiff

appeared in Magisterial District Court on November 7, 2019, intending to dispute the charges

against her, but the charges were dismissed at Butler’s request. Id. at ¶ 54.

II. Procedural Background

Plaintiff initiated this lawsuit by filing the Complaint on December 20, 2019, ECF No. 1,

and a First Amended Complaint on March 12, 2020. ECF No. 20. Defendants moved to dismiss

the First Amended Complaint. ECF No. 21. Chief Judge Hornak, who previously presided over

this case, granted Defendants’ Motion in part and gave Plaintiff leave to amend. ECF No. 26.

Plaintiff filed her Second Amended Complaint on June 16, 2020, ECF No. 27, and Defendants

again moved to dismiss. ECF No. 28. This matter was transferred to the undersigned on October

23, 2020, and Defendants’ Motion is now ripe for disposition.

III. Discussion

In their Motion, Defendants challenge five of eight claims set out in the Second Amended

Complaint. Specifically, Defendants argue (1) that Plaintiff’s claims against Daniele in Counts V,

VI, and VII should be dismissed because Daniele’s lack of “personal involvement” should afford

him qualified immunity; (2) that Plaintiff’s claims against the Borough in Count III should be

dismissed because respondeat superior is not a cognizable basis for municipal liability under

Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 694 (1978); and (3) that Plaintiff’s claim for

intentional infliction of emotional distress (“IIED”) against Butler in Count VIII should be

dismissed because Plaintiff has failed to sufficiently allege a “tangible physical injury” and

because the conduct alleged in the Second Amended Complaint is not sufficiently severe or

outrageous as a matter of law. See ECF No. 29.

A. Standard of Review

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim. In reviewing

a motion to dismiss, the court accepts as true a complaint’s factual allegations and views them in

the light most favorable to the plaintiff. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d.

Cir. 2008). Although a complaint need not contain detailed factual allegations to survive a motion

to dismiss, it cannot rest on mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). That is, “a formulaic recitation of the elements of a cause of action will not do.”

Id. Accordingly, “[f]actual allegations must be enough to raise a right to relief above the

speculative level,” id., and be “sufficient to state a claim for relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “The plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than the sheer possibility

that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

The United States Court of Appeals for the Third Circuit has established a three-step

process for district courts to follow in analyzing a Rule 12(b)(6) motion:

First, the court must “tak[e] note of the elements a plaintiff must plead to state a

claim.” Second, the court should identify allegations that, “because they are no

more than conclusions, are not entitled to the assumption of truth.” Finally, “where

there are well-pleaded factual allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an entitlement for relief.”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster

Twp., 629 F.3d 121, 130 (3d Cir. 2010)).

Finally, if a civil rights claim is dismissed pursuant to Rule 12(b)(6), the Third Circuit has

held that the district court must provide leave to amend “unless an amendment would be

inequitable or futile.” Phillips, 515 F.3d at 233; see also Mullin v. Balicki, 875 F.3d 140, 151 (3d

Cir. 2017) (“In our Circuit, ‘district courts must offer amendment [in civil rights cases]—

irrespective of whether it is requested—when dismissing a case for failure to state a claim unless

doing so would be inequitable or futile.’”) (citation omitted)). Amendment is futile where an

amended complaint could not withstand a renewed motion to dismiss. See Shane v. Fauver, 213

F.3d 113, 115 (3d Cir. 2000).

B. Plaintiff Sufficiently Pleads Daniele’s Personal Involvement in the Decision

to File Criminal Charges against Plaintiff

Defendants’ Motion first challenges Plaintiff’s claims against Daniele in his individual

capacity for violation of her rights under the First and Fourth Amendments (Count V), malicious

prosecution (Count VI), and abuse of process (Count VII).1

In Count V, Plaintiff asserts claims against Daniele for violations of her First and Fourth

Amendment rights under two different, but factually related, theories. First, Plaintiff claims that

her initial seizure, search, arrest and detention were unlawful under the Fourth Amendment and

conducted in retaliation for her engaging in protected First Amendment conduct—i.e., recording

Butler. ECF No. 27 at ¶¶ 119, 121, 123, 124. Second, Plaintiff claims that that the subsequent

filing of allegedly fabricated criminal charges against her was a further unlawful seizure in

violation of her rights under the Fourth Amendment and, like the initial arrest, was in retaliation

for her making a recording of Butler. ECF No. 27 at ¶¶ 122, 125, 126, 127.

Plaintiff also sets out claims against Daniele for malicious prosecution and abuse of process

under both 42 U.S.C. § 1983 and state law. ECF No. 27 at ¶ 125, Count VI, Count VII.2

Defendants’ prior motion to dismiss Plaintiff’s state law malicious prosecution and abuse of

1 Counts V, VI, and VII also allege claims against Butler. Defendants’ Motion does not seek to dismiss these claims

against Butler, and so the Court does not address them.

2 See, e.g., Reinsmith v. Borough of Bernville, Civil Action No. 03-1513, 2003 U.S. Dist. LEXIS 23701, at *19–*25

(E.D. Pa. Dec. 16, 2003) (setting forth differing elements of claims for malicious prosecution and abuse of process

under § 1983 and Pennsylvania law); see also ECF No. 26 at 4 (“The Defendants seek to dismiss the claims at Counts

7 and 8 as being duplicative. The Court disagrees. There are distinct elements to the torts of malicious prosecution

and abuse of process, although they are related.”).

process claims was denied by the Court (ECF No. 26 at 4), and Defendants do not raise any

challenge to the state law claims in their Motion. Accordingly, the Court will confine its analysis

to Plaintiff’s § 1983 malicious prosecution and abuse of process claims against Daniele.

1. Defendants’ Arguments

In seeking dismissal of Counts V, VI, and VII against Danielle, Defendants point out that

“[g]enerally, in order to establish supervisory liability against government officials in their

individual capacities under § 1983, a plaintiff must demonstrate that the officials were personally

involved in the commission of the conduct alleged.” ECF No. 29 at 3–4 (quoting Snatchko v.

Peters Twp., 2:12-cv-1179, 2012 U.S. Dist. LEXIS 182534, at *31 (W.D. Pa. Dec. 28, 2012)

(citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988))) (emphasis in original).

Defendants further argue that Daniele “is entitled to qualified immunity because the Second

Amended Complaint does not plead sufficient facts to support a showing that he was personally

involved with Plaintiff’s claims in a manner other than indirectly under a theory of respondeat

superior.” ECF No. 26 at 4.

Defendants seemingly present two distinct, but closely related, arguments for dismissal of

Plaintiff’s claims against Daniele. First, Defendants posit that, on its face, the Second Amended

Complaint fails to state a claim under § 1983 because it does not allege that Daniele was personally

involved in any of the alleged violations. Second, they essentially argue that Daniele is entitled to

qualified immunity under the first prong of the Saucier test—i.e. “whether the facts that plaintiff

has alleged…make out a violation of a constitutional right”—again, because Daniele was not

personally involved in the alleged violations. See Pearson v. Callahan, 555 U.S. 223, 232 (2009)

(discussing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

“Qualified immunity applies unless the official’s conduct violated [a clearly defined

constitutional right.]” Pearson, 555 U.S. at 224. According to the Third Circuit, “[t]he first

question of the Saucier analysis is whether a constitutional violation occurred. This ‘is not a

question of immunity, but whether there is any wrong to address.’” James v. City of Wilkes-Barre,

700 F.3d 675, 679 (3d Cir. 2012) (quoting Ray v. Twp. of Warren, 626 F.3d 170, 174 (3d Cir.

2010)). Thus framed, Defendants’ Motion requires the Court to address (1) whether Daniele’s

conduct is actionable, i.e., whether the Second Amended Complaint sufficiently alleges Daniele’s

personal involvement such that supervisory liability would attach under § 1983, and (2) whether

Daniele forfeited qualified immunity as to such conduct, i.e., whether his actions violated clearly

established constitutional rights. See Thomas v. Independence Twp., 463 F.3d 285, 292 (3d Cir.

2006) (cautioning against “conflat[ing] qualified immunity with the merits of a plaintiff’s cause of

action under § 1983.”); see also Mitchell v. Forsyth, 472 U.S. 511, 527 (1985) (finding that “a

claim of immunity is conceptually distinct from the merits of the plaintiff's claim.”).

2. Whether Plaintiff Sufficiently Pleads Supervisory Liability Under § 1983

To state a claim under § 1983, a plaintiff must establish (1) that the defendants were acting

under color of state law and (2) that they deprived plaintiff of a right protected by the U.S.

Constitution. See Snatchko, 2012 U.S. Dist. LEXIS 182534, at *14 (citing Collins v. City of

Harker Heights, 503 U.S. 115, 120 (1992)). To plead a § 1983 retaliation claim, “a plaintiff must

allege: (1) that he or she engaged in constitutionally protected conduct; (2) that the defendant

took action sufficient to deter an ordinary person from engaging in such conduct; and (3) a causal

connection between the two.” Jacobs v. City of Phila., No. 20-1967, 2020 U.S. App. LEXIS

37459, at *2–*3 (3d Cir. Dec. 1, 2020) (further noting that “[w]hen the alleged retaliation takes

the form of criminal charges, causation requires a showing that the charges were not supported by

probable cause.”).

To establish supervisory liability, as is the case here with respect to Daniele, a plaintiff

must also demonstrate that the official was personally involved in the conduct alleged. See Rode

v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also, Bangura v. City of Phila., 338 F.

App'x 261, 265 (3d Cir. 2009) (“In order to state a claim against Commissioner Johnson under §

1983, Bangura was required to allege facts demonstrating that the Commissioner had personal

involvement in the allegedly deficient training.”). “Personal involvement can be shown through

allegations of personal direction or of actual knowledge and acquiescence.” Snatchko, 2012 U.S.

Dist. LEXIS 182534, at *31 (quoting Rode, 845 F.2d at 1207). Furthermore, “[a]llegations of

participation or actual knowledge and acquiescence…must be made with appropriate

particularity,” as, for example, where a complaint “states time, place, persons responsible.” Rode,

845 F.2d at 1207 (citing Boykins v. Ambridge Area School Dist., 621 F.2d 75, 80 (3d Cir. 1980)

and Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir. 1978)).

As noted above, the only element of Plaintiff’s § 1983 claims against Daniele that

Defendants challenge is whether Daniele was personally involved. Defendants are correct that the

Second Amended Complaint fails to plead facts sufficient to show that Daniele was personally

involved in Plaintiff’s initial arrest and detention. According to the Second Amended Complaint,

Plaintiff was arrested by Butler, searched by another, unnamed officer, and then transported to the

Station on Butler’s orders. ECF No. 27 at ¶¶ 36–42. Further, viewing the factual allegations in

the Second Amended Complaint in the light most favorable to the Plaintiff, it does not appear that

Daniele was aware of the encounter between Plaintiff and Butler (or the alleged violation of

Plaintiff’s civil rights) until after Plaintiff arrived at the Station and Daniele allegedly had an

opportunity to view the video recording. Id. at ¶¶ 46–48. Accordingly, the Court concludes that

Plaintiff has not sufficiently alleged Daniele’s personal involvement in Plaintiff’s initial arrest and

detention to establish supervisory liability with respect to that portion of Count V. As such, to the

extent Count V of the Second Amended Complaint makes claims against Daniele for the violation

of Plaintiff’s First and Fourth Amendment rights in connection with her initial arrest, search,

seizure and detention on August 19, 2019, that portion of Count V will be dismissed without

prejudice. Plaintiff will be given leave to amend Count V to attempt to cure this defect.

That said, the Court finds that the factual allegations contained in the Second Amended

Complaint are enough for Plaintiff’s claims in Counts V, VI, and VII to survive a motion to dismiss

as they relate to Daniele’s personal involvement in the decision to file criminal charges against

Plaintiff, allegedly in violation of her First and Fourth Amendment rights. Here, Defendants

advance an overly technical interpretation of “personal involvement,” arguing that because

Butler’s name was on the arrest report and citation and because Butler, not Daniele, attended

Plaintiff’s preliminary hearing before the Magisterial District Court, “Chief Daniele was not

involved other than allegedly rubber stamping Butler’s arrest.” ECF No. 29 at 5. Taken as true

and viewed in the light most favorable to Plaintiff, however, the Second Amended Complaint’s

factual allegations do not portray Daniele’s involvement as being nearly that attenuated.

Stripped of boilerplate allegations, the Second Amended Complaint claims that prior to the

charges being filed, Daniele viewed the video recording of Plaintiff’s encounter with Butler. ECF

No. 27 at ¶¶ 48–49. The Second Amended Complaint further avers that, after reviewing the video,

Daniele knew that the use of force and arrest were in retaliation for Plaintiff recording Butler and

were without probable cause. Id. at ¶ 48. Finally, the Second Amended Complaint alleges that,

“Officer Butler, the arresting officer, filled out an arrest report/citation” which was “signed off on

and approved by Chief Daniele.” Id. ¶¶ 50, 52. As such, the Second Amended Complaint has

sufficiently alleged, at a minimum, that Daniele had actual knowledge of the circumstances of

Plaintiff’s arrest and acquiesced to the filing of the allegedly false report and criminal charges

against her. See Rode, 845 F.2d at 1207. Moreover, because Defendants’ argument in favor of

dismissal regarding Plaintiff’s claims against Daniele in Counts VI and VII is predicated entirely

on the same argument and the same alleged facts—i.e. lack of personal involvement—it, too, fails

for the same reasons. Plaintiff has sufficiently alleged Daniele’s personal involvement in the filing

of criminal charges against her. Accordingly, with regard to Daniele, Count V, with the exception

of the portions related to Plaintiff’s initial arrest and detention, and all of Count VI and Count VII

survive Defendants’ Motion to Dismiss.

3. Whether Daniele is Entitled to Qualified Immunity

Government officials sued in their individual capacity are entitled to qualified immunity

for alleged violations of a plaintiff’s civil rights “‘insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.’”

James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d. Cir. 2012) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). In addressing a claim of qualified immunity, courts analyze “(1)

whether the facts alleged by the plaintiff show the violation of a constitutional right; and (2)

whether the right was clearly established at the time of the alleged misconduct.” Id. (citing Saucier

v. Katz, 533 U.S. 194, 201 (2001)). Further, “district courts are ‘permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.’” Bayer v. Monroe Cnt.

Children & Youth Servs., 577 F.3d 186, 191-92 (3d Cir. 2009) (quoting Pearson, 555 U.S. at 236).

Finally, “‘qualified immunity will be upheld on a 12(b)(6) motion only when the immunity is

established on the face of the complaint.’” Thomas, 463 F.3d at 291 (quoting Leveto v. Lapina,

258 F.3d 156, 161 (3d Cir. 2001)).

a. Claims arising under the First Amendment

The Second Amended Complaint alleges in Count V that Daniele participated in violations

of Plaintiff’s rights under the First Amendment when he approved the filing of criminal charges

against her. ECF No. 27 at ¶ 125. Plaintiff claims that these charges were “motivated [by] and

unlawfully attempted to interfere with her right to be an activist and citizen of the Borough of

North Braddock and record, document and report police misconduct, thereby violating her rights

under the First Amendment” and “[s]aid conduct also violated her rights under the Fourth

Amendment.” ECF No. 27 at ¶¶ 126–27. In other words, Plaintiff claims the criminal charges

were filed in retaliation for protected First Amendment conduct—specifically, recording Butler

conducting a traffic stop of another person on a public street.

According to the Third Circuit, “under the First Amendment’s right of access to

information the public has the commensurate right to record—photograph, film, or audio record—

police officers conducting official police activity in public areas.” Fields v. City of Philadelphia,

862 F.3d 353, 360 (3d Cir. 2017). And, “although the right to record police is not absolute,” there

is no indication from the Second Amended Complaint or Defendants’ Motion that Plaintiff in any

way “interfere[d] with police activity” by making her recording, such that her “activity might not

be protected.” Id. Indeed, the Second Amended Complaint makes clear that Plaintiff did not

attempt to interfere with Butler during the traffic stop; did not attempt to exit her vehicle; and

complied with Butler’s request to move her vehicle, even though, according to the Second

Amended Complaint, Plaintiff’s vehicle was legally parked at all times. ECF No. 27 at ¶¶ 23–27.

Furthermore, the right to record police officers, such as Butler, conducting official police activity,

such as a traffic stop, in a public area and without interfering with the police activity, was clearly

established at the time Plaintiff was arrested and charges filed against her in August 2019. See

Karns v. Shanahan, 879 F.3d 504, 524 n.12 (3d Cir. 2018) (noting that the right to record police

officers in public “is now clearly established in this Circuit.”).

As with the Court’s discussion of the legal sufficiency of Plaintiff’s claims, supra, the

initial encounter between Plaintiff and Butler is not the end of the analysis. Thus, the issue for the

purposes of Plaintiff’s claims against Daniele in Count V, as it relates to Defendants’ claim of

qualified immunity, is not whether the initial arrest violated a clearly established right, but whether

the decision to file criminal charges, allegedly without probable cause and in retaliation for

Plaintiff recording Butler, see ECF No. 27 at ¶¶ 44–52 and 56–61, violated a clearly established

right. Importantly, courts in this Circuit have found that pressing charges in the absence of

probable cause, in retaliation for protected First Amendment conduct, is a “per se violation of

clearly established law because police officers are required to know the probable cause

requirement.” Montgomery v. Killingworth, Civil Action No. 13cv3082, 2015 U.S. Dist. LEXIS

7152, at * 33 (E.D. Pa. Jan. 21, 2015) (citing Losh v. Parkersburg, 736 F.2d 903, 910 (3d. Cir.

1984)). According to the Second Amended Complaint, that is exactly what happened here:

Plaintiff, who claims she was legally parked and lawfully recording Butler, was dragged from her

vehicle, arrested, and then detained at the Borough police station. ECF No. 27 at ¶¶ 23–42.

Daniele, even after reviewing video of these events, approved the filing of criminal charges against

Plaintiff. Id. at ¶¶ 46–52. Thus, the Second Amended Complaint sufficiently pleads that Daniele’s

participation in the decision to file criminal charges violated clearly established rights, and

therefore a grant of qualified immunity is not appropriate at this early stage of the case.

That said, while the Court does not find qualified immunity “established on the face of the

complaint,” Thomas, 463 F.3d at 291, the lack of a developed factual record at the 12(b)(6) stage

does not permit the Court to determine that the charges actually lacked probable cause. See

Karloski v. Davis, Civil Action No. 15-1101, 2018 U.S. Dist. LEXIS 68215, at *12–13 (W.D. Pa.

Apr. 24, 2018) (noting that “[t]he fact that the charges were dismissed at the preliminary phase of

Plaintiff's criminal case does not negate the existence of probable cause to support his initial arrest

and detention.”) (citing Michigan v. DeFillippo, 443 U.S. 31, 36 (1979); see also Reichle v.

Howards, 566 U.S. 658, 664–65 (2012) (finding the Supreme Court “has never recognized a First

Amendment right to be free from a retaliatory arrest that is supported by probable cause.”).

Accordingly, while the Court declines to find that Daniele is entitled to qualified immunity at this

juncture, Defendants may reassert the defense following development of the factual record.

b. Claims arising under the Fourth Amendment

Next, according to Counts V and VI of the Second Amended Complaint, Plaintiff’s “Fourth

Amendment rights were violated” when Butler and Daniele “maliciously prosecut[ed] her” without

probable cause and, therefore, “interfered with [Plaintiff’s] liberty interests.” ECF No. 27 at ¶ 125.

The Fourth Amendment guarantees the right to be free from unreasonable searches and

seizures. U.S. Const. amend. IV. A “seizure” under the Fourth Amendment occurs “when there

is a governmental termination of freedom through means intentionally applied.” Scott v. Harris,

550 U.S. 372, 381 (2007). Plaintiff’s claim for malicious prosecution under § 1983 likewise hinges

on establishing that a “seizure” occurred. See Reinsmith v. Borough of Bernville, Civil Action No.

03-1513, 2003 U.S. Dist. LEXIS 23701, at *20 (E.D. Pa. Dec. 16, 2003) (“A plaintiff asserting a

[federal] malicious prosecution claim must show some deprivation of liberty consistent with the

concept of seizure.”) (quoting Bristow v. Clevenger, 80 F. Supp. 2d 421, 429 (M.D. Pa. 2000)).

With respect to post-release/pre-trial deprivations of liberty, the Third Circuit has adopted

the so-called “continuing seizure” theory, Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011),

which the court summarized as: “When the state places constitutionally significant restrictions on

a person's freedom of movement for the purpose of obtaining his presence at a judicial proceeding,

that person has been seized within the meaning of the Fourth Amendment.” Id. at 321-322.

However, the Third Circuit’s continuing seizure analysis is context specific and, importantly,

“some conditions of pre-trial release may be so insignificant as to not implicate constitutionally

protected liberty interests.” Black v. Mongtomery Cnty., 835 F.3d 358, 367 n.7 (3d Cir. 2016).

For example, while the court in Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998)

found a continuing seizure where plaintiff’s interstate travel was restricted, he was required to post

$10,000 bail, and he was required to report to pre-trial services weekly, the court in DiBella v.

Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) declined to find a continuing seizure

where plaintiffs were “only issued a summons; they were never arrested; they never posted bail;

they were free to travel; and they did not have to report to Pretrial Services.”

Here, it is not clear that Plaintiff was subjected to sufficient restrictions following her

release from the Borough police station to “implicate constitutionally protected liberty interests.”

Black, 835 F.3d at 367 n.7. Indeed, Plaintiff’s Second Amended Complaint states only that she

was arrested, charged, released and then required to appear before the Magisterial District Court.

ECF No. 27 at ¶¶ 50–54. Thus, the Second Amended Complaint contains insufficient factual

matter for the Court to determine at this juncture whether any post-release restrictions placed on

Plaintiff “implicate[d] constitutionally protected liberty interests,” or were, instead, de minimis.

Black v. Montgomery Cnty., 835 F3d at 367 n.7.

Therefore, because “the Supreme Court ‘repeatedly has stressed the importance of

resolving immunity questions at the earliest possible stage in the litigation,” Thomas, 463 F.3d at

291 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)), and in light of the Thomas court’s

directive that “a district court must avail itself of the procedures available under the Federal Rules

to facilitate an early resolution of the qualified immunity issue,” id. at 300, Plaintiff will be ordered

to provide a more definite statement in the form of an amended pleading, pursuant to Rule 12(e),

identifying “the factual basis underlying [Plaintiff’s] claim for relief” with respect to the alleged

post-release deprivation of liberty. Id. at 301.

c. Section 1983 Abuse of Process Claim

Finally, with respect to Count VII, “a section 1983 claim for malicious abuse of process

lies where ‘prosecution is initiated legitimately and thereafter is used for a purpose other than that

intended by the law.’” Napier v. City of New Castle, 407 Fed Appx. 578, 582 (3d Cir. 2010)

(quoting Rose v. Bartle, 871 F.2d 331, 350 n. 17 (3d Cir. 1989). “Thus, ‘[t]he gravamen of [a

malicious abuse of process claim] is not the wrongful procurement of legal process or the wrongful

initiation of criminal or civil proceedings; it is the misuse of process, no matter how properly

obtained, for any purpose other than that which it was designed to accomplish.’” Dunne v. Twp.

of Springfield, 500 Fed.Appx. 136, 138 (3d Cir. 2012) (quoting Restatement (Second) of Torts §

682 cmt. a) (1965)). As discussed in section III.B.2, supra, Plaintiff has pled facts sufficient to

state Daniele’s personal involvement in the filing of the criminal charges against her. She has

further alleged that the charges against her were filed “to cover-up the illegal arrest, and search

and seizure of [Plaintiff]” and “to harass and intimidate her.” ECF No. 27 at ¶¶ 57, 148, and were

“motivated [by] and unlawfully attempted to interfere with her right to be an activist citizen…and

record, document and report police misconduct, thereby violating her rights under the First

Amendment.” Id. at ¶ 126. As such, Plaintiff’s claim in Count VII incorporates her First

Amendment retaliation claim in that the abuse of process claim alleges the criminal charges were

filed with the objective of dissuading Plaintiff from future recordings of police activity.

That said, while the Court is cognizant of the apparent conflict between Plaintiff’s § 1983

malicious prosecution and abuse of process claims—with the former grounded on the initiation of

proceedings without probable cause and the latter based on the misuse of process legitimately

initiated, see Napier, 407 Fed.Appx. at 582–83—the existence of probable cause is, at this stage,

an issue of fact that must be clarified through discovery. See Quinn v. Cintron, 629 Fed. Appx.

397, 398 (3d Cir. 2015) (“[G]enerally, ‘the question of probable cause in a section 1983 damage

suit is one for the jury,’” but the existence of probable cause may be determined as a matter of law

at summary judgment “‘if the evidence, viewed most favorably to Plaintiff, reasonably would not

support a contrary factual finding,’”) (quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782,

788–89 (3d Cir. 2000). Indeed, Plaintiff seems to appreciate this conflict, appearing to plead abuse

of process as an alternative ground for relief. See ECF No. 27 at ¶150 (“[Plaintiff] is entitled to

recover damages...based on the theories of liability hereinafter enumerated in the above counts,

and under such other theories of liability as may be appropriate based on the facts alleged herein

or as revealed during discovery.”). Furthermore, the alleged intent to “harass and intimidate”

Plaintiff with the criminal charges is a matter that requires factual determinations to be made

following discovery. Accordingly, as with Plaintiff’s First Amendment Retaliation claim, the

Court declines at this juncture to find that Daniele is entitled to qualified immunity on the § 1983

abuse of process claim, pending further development of the record.

C. The Second Amended Complaint States a Claim Against the Borough

Defendants next challenge Plaintiff’s claims against the Borough in Count III of the Second

Amended Complaint for failure to properly train, supervise and discipline and for unlawful

custom/policy. As with the § 1983 claims for First and Fourth Amendment violations against

Daniele, Plaintiff appears to be pursuing two separate theories of liability against the Borough: (1)

that the Borough’s alleged failure to train, supervise, or discipline resulted in the alleged violations

of Plaintiff’s constitutional rights, Second Amended Complaint, ECF No. 27 at ¶¶ 96–106; and

(2) that the Borough had a policy or custom of retaliating against citizens and activists for

“publiciz[ing] and speak[ing] out about police misconduct,” including where such individuals

“have attempted to videotape, audiotape, or simply observe police interactions with citizens and

criminal suspects.” Id. at ¶¶ 89–95.

Defendants argue that “Plaintiff attempts to impute liability to the Borough ‘solely on a

principal/agent relationship’” and that “the Borough cannot be deliberately indifferent to a pattern

of unconstitutional practices if its only knowledge is this current litigation.” ECF No. 29 at 6

(quoting Flood v. Sherk, 400 F.Supp.3d 295, 313 (W.D. Pa. 2019)). As such, Defendants assert

that Plaintiff’s failure to train/supervise claim is nothing more than “boilerplate” and should be

dismissed for failing to make “a fact-based ‘showing’” regarding “the adoption or implementation

of a municipal policy by a ‘final decisionmaker.’” Id. at 5. Defendants further point out that

“[c]ustom liability under § 1983 requires policymakers to be deliberately indifferent to a pattern

of unconstitutional practices—not carelessly indifferent, negligently indifferent, and certainly not

vicariously indifferent.” Id. at 6 (quoting Monell, 436 U.S. 658, 674 (1978)). In sum, Defendants

attempt to show that the Second Amended Complaint alleges nothing more than respondeat

superior liability as to the Borough, which is “not a basis for assessing municipal liability for

Constitutional violations under Monell v. Dept. of Social Services, 436 U.S. 658 (1978).” Id. at 5.

According to the Supreme Court in Monell, a municipality may be held liable under § 1983

“when execution of a government’s policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” 436 U.S.

at 694. In effect, “Monell…created a ‘two-path track’ to municipal liability, depending [upon]

whether a 1983 claim is premised [upon] a municipal policy or custom.” Logan v. Bd. of Educ. of

Sch. Dist. of Pittsburgh, Civ. A. No. 15-499, 2015 U.S. Dist. LEXIS 139907, at *30 (W.D. Pa.

Oct. 14, 2015). “Under the ‘policy’ path, a local government unit may be ‘sued directly if it is

alleged to have caused a constitutional tort through “a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that body's officers.”’” Id. (quoting City of St.

Louis v. Praprotnik, 485 U.S. 112, 121 (1988). “Under the ‘custom’ path, § 1983 authorizes suit

‘for constitutional deprivations visited pursuant to governmental custom even though such a

custom has not received formal approval through the [government] body's official decisionmaking

[sic] channels.”’ Id. (quoting Praprotnik, 485 U.S. at 121). Finally, “[i]n proving either an

unlawful policy or custom under § 1983, ‘it is incumbent upon a plaintiff to show that a

policymaker is responsible either for the policy or, through acquiescence, for the custom.’” Id. at

*31 (quoting Andrews v. City of Phila., 895 F.2d 1469, 1480–81 (3d Cir. 1990)).

The Third Circuit Court of Appeals has further delineated three ways a public entity can

be found liable under § 1983 by way of its policy or custom:

(1) where the alleged injury results from a public employee simply implementing a

generally applicable statement of policy of the entity; (2) absent a generally stated

policy, where the policymaker itself acts in violation of federal law; and (3) where

the policymaker acts with deliberate indifference by failing to create new policies

addressing the inadequacy of an existing practice likely to result in constitutional

violations.”

Damiani v. W. Deptford Twp., Civil Action No. 07-2284, 2008 U.S. Dist. LEXIS 17581, at *13–

*14 (D. N.J. Mar. 7, 2008) (citing Natale v. Camden County Corr. Facility, 318 F.3d 575, 584 (3d

Cir. 2003)). These categories dovetail with the Third Circuit’s finding that:

An individual’s conduct implements official policy or practice under several types

of circumstances including when (1) the individual acted pursuant to a formal

government policy or a standard operating procedure long accepted within the

government entity, (2) the individual himself has final policy-making authority

such that his conduct represents official policy, or (3) a final policy-maker renders

the individual’s conduct official for liability purposes by having delegated to him

authority to act or speak for the government, or by ratifying the conduct or speech

after it has occurred.

Hill v. Borough of Kutztown, 455 F.3d 225, 245 (3d Cir. 2006) (citing Pembaur v. City of

Cincinnati, 475 U.S. 469, 478–84 (1986)).

Here, had Plaintiff charged the Borough with liability solely based on Butler’s actions, the

Court would agree with Defendants that the claims in Count III should be dismissed. See Hill v.

Borough of Kutztown, 455 F.3d 225, 245 (3d Cir. 2006) (“A municipality may not be held liable

under § 1983 for the constitutional torts of its employees by virtue of respondeat superior.”). But

that is not the case. Rather, Plaintiff alleges that her arrest and the subsequent criminal charges

were the result of the Borough police’s “custom or policy” of retaliating against citizens and

activists for recording Borough police officers. See ECF No. 27 at ¶¶ 89–95. And, importantly,

Plaintiff does not attribute these alleged violations to Butler (or other subordinate officers) alone.

Fairly read in the light most favorable to Plaintiff, the Second Amended Complaint claims that

Daniele, who allegedly was the Borough official responsible for overseeing its police department,

see id. at ¶¶ 13–15, ECF No. 27, not only acquiesced to this custom or practice but, in Plaintiff’s

case at least, actively participated in it, thereby effectively ratifying Butler’s allegedly unlawful

conduct by authorizing the filing of criminal charges against Plaintiff. See, e.g. Damiani, 2008

U.S. Dist. LEXIS 17581, at *14–*15 (declining to dismiss where Plaintiff pled that the chief of

police was “a policy maker” with “decisional authority of and for the West Deptford Township

Police Department”). Daniele’s alleged responsibility for police training and discipline, ECF No.

27 at ¶ 13, and alleged personal involvement in Plaintiff’s case further supports the claim that the

Borough was deliberately indifferent to the need to properly train, supervise or discipline its police

officers. Thus, the Second Amended Complaint’s allegations implicate at least category (2) from

Natale, supra, and categories (2) and (3) from Hill, supra.

Whether Plaintiff will be able to prove these claims following discovery remains to be seen.

However, at this early stage in the litigation, Plaintiff’s allegations are enough to survive

Defendants’ Motion to Dismiss. Accordingly, Defendants’ Motion with respect to Count III of

the Second Amended Complaint will be denied.

D. The Second Amended Complaint States a Claim for Intentional Infliction of

Emotional Distress

Finally, Defendants argue that Plaintiff’s claim for IIED in Count VIII fails either because

(1) Plaintiff failed to make a showing that she sustained a “tangible physical injury” or (2) because

“her allegations still fail to state how Butler’s ‘conduct [was]…so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized society.’” ECF No. 29 at 7 (quoting Reedy v. Evanson, 615

F.3d 197, 231–32 (3d Cir. 2010)).

To state a claim for IIED under Pennsylvania law, a plaintiff must make a “showing of

‘intentional outrageous or extreme conduct by the defendant, which causes severe emotional

distress to the plaintiff.’” Williams v. Fedarko, 807 Fed.Appx. 177, 181 (3d Cir. 2020) (quoting

Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005)). That is, “[l]iability on an intentional

infliction of emotional distress claim ‘has been found only where the conduct has been so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Id. (citing

Field v. Phila. Elec. Co., 565 A.2d 1170, 1184 (Pa. Super. Ct. 1989)). In addition, “‘a plaintiff

must suffer some type of resulting physical harm due to the defendant’s outrageous conduct.’”

Reedy v. Evanson, 615 F.3d 197, 232 (3d Cir. 2010) (quoting Swisher, 868 A.2d at 1230)).

Thus, conduct rises to the level required to constitute IIED in only very limited

circumstances. See, e.g. Banyas v. Lower Bucks Hosp., 437 A.2d 1236 (Pa. Super. Ct. 1981)

(finding IIED where defendants intentionally fabricated records to suggest that plaintiff had killed

a third party which led to plaintiff being indicted for homicide); Chuy v. Phila. Eagles Football

Club, 595 F.2d 1265 (3d Cir. 1979) (finding IIED where defendant’s team physician released to

press information that plaintiff was suffering from fatal disease, when physician knew such

information was false).

Here, the Court is unpersuaded by Defendants’ argument that Plaintiff’s claim should be

dismissed for failure to “make a ‘showing’…[of] tangible physical injury.” ECF No. 28 at 7.

Plaintiff’s allegation that she suffered “an injured wrist” sufficiently pleads a “tangible physical

injury.” Further, while it is true, as Defendants point out in their Reply, that the court in Ghrist

noted that liability for IIED must be supported by “competent medical evidence,” dismissal of the

IIED claim there was based on plaintiff’s failure to plead “any allegation of physical injury or

harm.” Ghrist v. CBS Broad., Inc., 40 F.Supp.3d 623, 630–31 (W.D. Pa. 2014) (emphasis added).

That is not the case here as Plaintiff has alleged “resulting physical harm due to” Butler’s actions

and may provide appropriate medical evidence as the case progresses.

Next, Plaintiff’s allegations that, in retaliation for recording him, Butler “verbally

assault[ed], [struck] and punch[ed]” her and then pressed criminal charges—after allegedly

“agree[ing] that [Plaintiff]’s car had been legally parked”—are sufficient at the pleadings stage to

meet the level of outrageousness required under Pennsylvania law. ECF No. 27 at ¶¶ 36, 44, 159.

Whether Plaintiff can prove her claim remains to be seen. But, at this stage, Plaintiff need not win

her case—only state facts raising a “plausible” right to relief. Accordingly, Defendants’ Motion

with respect to Count VIII of the Second Amended Complaint will be denied.

IV. Conclusion

For the foregoing reasons, Defendants’ Motion to Dismiss will be GRANTED IN PART

and DENIED IN PART.

The portions of Count V of Plaintiff’s Second Amended Complaint alleging § 1983 claims

against Defendant Daniele for violation of Plaintiff’s First and Fourth Amendment rights in

connection with the initial arrest, search, and detention of Plaintiff on August 19, 2019 will be

DISMISSED WITHOUT PREJUDICE. Plaintiff may attempt to cure this deficiency by filing an

amended pleading on or before January 19, 2021. With respect to the post-arrest Fourth

Amendment claim asserted in Count V and the malicious prosecution claim asserted in Count VII,

Plaintiff shall file a more definite statement in the form of an amended pleading, in accordance

with Rule 12(e), identifying the “constitutionally significant restrictions” on her liberty that were

imposed between her release and appearance before the Magisterial District Court, Schneyder, 653

F.3d at 321, on or before January 19, 2021.

Otherwise, Defendants’ Motion to Dismiss will be DENIED. But, because the Court finds

that further development of the factual record is necessary to determine Daniele’s right to qualified

immunity regarding the post-arrest First Amendment claim asserted in Count V and the abuse of

process claim asserted in Count VI, such denial is without prejudice, pending the development of

a factual record regarding the existence of probable cause.

An appropriate Order will follow.

DATED this 5th day of January, 2021.

BY THE COURT:

/s/ Christy Criswell Wiegand

CHRISTY CRISWELL WIEGAND

United States District Judge

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