The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICHARD THIVENER, )
)
Plaintiff, ) Civil Action No. 22-238
)
v. ) Judge Cathy Bissoon
)
ANDREW NERO, et al., )
)
Defendants. )
ORDER
Defendant Coppolo’s Motion to Dismiss (Doc. 23) will be granted, and Defendants
Largey, Nero, Nicklas and Pistner’s Motion to Dismiss (Doc. 27) will be granted in part and
denied in part, as described below.
In this civil right lawsuit, Plaintiff seeks redress from Defendants based on his criminal
prosecution after his wife’s death. After twenty months of pretrial detention, Plaintiff prevailed
on his suppression motion and the criminal charges against him were dismissed. Plaintiff then
filed this lawsuit alleging that—despite lack of evidence of a crime—Defendants decided that
Plaintiff had killed his wife and embarked on a campaign to charge and convict him.
In seeking dismissal of the malicious prosecution claims against him, Coppolo—who was
the DA in Plaintiff’s criminal case—contends that he is entitled to absolute prosecutorial
immunity under both federal and state law. Plaintiff concedes as much, but argues that the
current standards for prosecutorial immunity should be reconsidered. To the extent Plaintiff
invites the Court to ignore binding precedent, the Court is not so inclined and Plaintiff’s claims
against Defendant Coppolo will be dismissed.
Plaintiff’s Fourth Amendment claim premised on the warrant applications submitted by
Largey also is untenable. Plaintiff’s contention that the underlying affidavits contain “absolutely
no quantum of specific facts from which any magistrate could have properly inferred probable
cause that evidence of a crime would have been found in [Plaintiff’s] blood or in his medical
records[,]” Pl.’s Opp’n Br. (Doc. 29) at 9, lacks merit. Largey’s affidavits easily meet the
requisite minimal standard.1 See Kitko v. Young, 575 F. App’x 21, 25 (3d Cir. 2014) (“Our role
is limited to ensuring that the magistrate had a substantial basis for concluding that the affidavit
supporting the warrant established probable cause, confining our review to the facts that were
before the magistrate judge, i.e., the affidavit, and ignoring information from other portions of
the record.”).
Dismissal also is warranted on Plaintiff’s Fourth Amendment claim as to the search
warrants obtained by Nero on July 28 and July 30, 2020. Plaintiff claims that the underlying
affidavits contain false statements and material omissions. Even assuming that Nero, with at
least a reckless disregard for the truth, made the false statements or omissions identified by
Plaintiff, the reconstructed affidavits with the alleged false statements excluded and the alleged
omissions included, see Defs.’ Br. (Doc. 28) at 14 (summarizing the information that would be
included in a reconstructed affidavit), provide ample factual basis to support a probable cause
finding.2
1 The affidavits state that based on the relatively young age of Plaintiff’s wife, coupled
with the absence of any known medical conditions that could have contributed to her death, her
death likely was a homicide or a suicide. The warrant affidavit for Plaintiff’s blood samples
provides that the blood would corroborate the coroner’s findings as to whether the death of
Plaintiff’s wife was a homicide or suicide, and if a suicide by overdose, would support charges of
causing or aiding suicide. And the warrant affidavit for Plaintiff’s medical records—including
his statements to hospital personnel and the identities of those to whom he made such
statements—states that those records would likewise corroborate the cause and means of death as
well as related criminal charges.
2 Plaintiff’s responsive briefing is silent in this regard, and Nero’s challenge is, in
essence, unrebutted.
Plaintiff’s Fourth Amendment claim against Nero regarding the September 11, 2020
search warrant, however, will not be dismissed. Plaintiff alleges that as of August 1, 2020, Nero
was aware of the coroner’s findings that it was scientifically impossible that the death of
Plaintiff’s wife was due to a drug overdose or physical suffocation. Second Am. Compl. (Doc.
22) at ¶ 33. Yet, Nero did not include those findings in his affidavit. Because this information
eviscerates the espoused theory of the case, a reconstructed affidavit would not support a
probable cause determination.3
Plaintiff also plausibly has alleged that Defendants McManus, Nero and Pistner coerced
him into an involuntary confession. Although Nero and Pistner contend that Plaintiff failed to
sufficiently allege their personal involvement, the Court sees little benefit to dismissing this
claim (subject, of course, to the opportunity for curative amendment) and demanding Plaintiff to
put a finer point on things. Plaintiff, generally, has made sufficient allegations of personal
involvement as to Nero and Pistner.4
Tangentially, because the criminal proceeding against Plaintiff was dismissed prior to
trial and because his confession was suppressed, Plaintiff has failed to allege a violation of his
Fifth Amendment right against self-incrimination. See Chavez v. Martinez, 538 U.S. 760, 767
(2003) (“The privilege against self-incrimination guaranteed by the Fifth Amendment is a
3 Defendants’ qualified immunity analysis for this claim as well as for the claim
regarding the coerced confession, does not address the fact that they were all aware of the
coroner’s findings. Accordingly, the Court cannot conclude that they are entitled to qualified
immunity.
4 See, e.g., Second Am. Compl. ¶ 112 (“Nero called Plaintiff on the telephone and told
him that personal items were available to be picked up in a ruse to induce Plaintiff to come to the
police department so Defendants Nero, McManus and Pistner could surprise him and procure a
statement to use as a confession[.]”); id. ¶ 133 (“Subsequent to Plaintiff’s arrest . . . Pistner
continued to interrogate Plaintiff . . . falsely asserting that the police ‘knew’ he had poisoned his
wife with something else other than Ativan[.]).
fundamental trial right of criminal defendants. Although conduct by law enforcement officials
prior to trial may ultimately impair that right, a constitutional violation occurs only at trial.”
Finally, dismissal of Plaintiff’s Monell claim also is warranted. Plaintiff does not attempt
to identify prior, similar incidents revealing a pattern of constitutional violations. Instead, he
appears to rely on the “single incident” theory, i.e., his own treatment. While such a theory is
tenable in some circumstances, it is not here. Plaintiff has failed to claim that his alleged
mistreatment “was caused by an existing, unconstitutional [government] policy, which policy
can be attributed to a . . . policymaker.” Wood v. Williams, 568 F. App’x 100, 105–06 (3d Cir.
2014).
Nor are Plaintiff’s allegations of a type where there is an obvious “likelihood that the
situation will recur,” resulting in “predictability that an officer lacking specific tools to handle
[the] situation will violate citizens’ rights.” Thomas v. Cumberland Cty., 749 F.3d 217, 223–24
(3d Cir. 2014) (citation to quoted source omitted) (discussing various scenarios distinguishable
from the instant case). In sum, Plaintiff has failed to assert viable a Monell claim, and there is no
reason to believe that the deficiency may be cured by amendment.
Consistent with the foregoing, Defendant Coppolo’s Motion to Dismiss (Doc. 23) is
GRANTED and Counts XVI & XVII are DISMISSED, and Defendants Largey, Nero, Nicklas
and Pistner’s Motion to Dismiss (Doc. 27) is GRANTED as to Counts V, VI, VII, VIII, XI &
XIV and DENIED as to Counts IX & X.
IT IS SO ORDERED.
June 30, 2023 s/Cathy Bissoon
Cathy Bissoon
United States District Judge
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