CARNEVALE v. DIGIOVANNI

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

DANIEL CARNEVALE,

)

Plaintiff )

)

v. ) Civil Action No. 2:22-cv-341

) Magistrate Judge Patricia L. Dodge

JENNIFER DIGIOVANNI, et al., )

)

)

Defendants.

MEMORANDUM OPINION1

Pending before the Court is Defendant United States of America’s Motion to Dismiss

(ECF No. 52) Count IV of the Amended Complaint (ECF No. 44) of Plaintiff Daniel Carnevale

(“Carnevale”). For the reasons that follow, its motion will be granted.

I. Relevant Procedural History

Carnevale commenced this action in February 2022. His claims arise from a 1993

apartment fire that resulted in the death of three residents and serious injuries to another resident.

(Id.) Carnevale was arrested and convicted of one count of arson and endangering persons, three

counts of murder in the second degree, one count of burglary in the first degree, and one count of

aggravated assault. (Id. ¶ 100.) Carnevale alleges that he did not commit the crimes for which he

was convicted and that he was ultimately exonerated on March 17, 2020 after spending 13 years

in prison. (Id. ¶ 102.)

The original Complaint asserted claims raised under 42 U.S.C. §1983, including include a

Fourth Amendment malicious prosecution claim against Scott Evans (“Evans”), and J.R. Smith

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to

have a United States Magistrate Judge conduct proceedings in this case. Therefore, the undersigned has

the authority to decide dispositive motions and enter final judgment.

(“Smith”), detectives who work for the City of Pittsburgh’s Bureau of Police (“PBP”); a

Fourteenth Amendment fabrication of evidence claim against Deputy Allegheny County District

Attorney Jennifer DiGiovanni (“DiGiovanni”), Evans and Smith; and a civil conspiracy claim

against DiGiovanni, Evans and Smith.

Evans and Smith filed an Answer to the Complaint (ECF No. 22). Defendant DiGiovanni

filed a motion to dismiss (ECF 10) that was granted in part and denied in part. Specifically, the

Court dismissed Carnevale’s claim against Defendant DiGiovanni in Count I, as well as those

portions of the claims against Defendant DiGiovanni in Count II and Count III that are based on

(1) DiGiovanni’s alleged promise of lenience for a witness in exchange for his testimony and the

failure to disclose such information to Carnevale; and (2) DiGiovanni’s alleged role of directing

Burns to fabricate testimony at trial and eliciting his false testimony at trial. DiGiovanni’s

motion was otherwise denied.

On November 29, 2022, the parties stipulated that Carnevale could file an Amended

Complaint naming the United States of America as a defendant and amend the caption

accordingly (ECF No. 42.) The next day, Carnevale filed an Amended Complaint, which is the

operative pleading. The first three counts of the Amended Complaint are identical to the counts

asserted in the original Complaint. The Amended Complaint adds the United States as a

defendant and includes one claim in Count IV only against the United States for malicious

prosecution under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2671, et seq. (ECF No.

44.)

2

Defendants Evans, Smith and DiGiovanni filed Answers to the Amended Complaint.

(ECF Nos. 46 and 47.) On March 30, 2023, the United States filed a Motion to Dismiss (ECF

No. 52) which has been fully briefed. (ECF Nos. 53, 61, 65, 66).

II. Relevant Factual Allegations

According to the Amended Complaint, on January 17, 1993, a fire occurred at two

adjoining apartments in Pittsburgh resulting in the deaths of three residents and serious injuries

to another person. (ECF No. 44 ¶¶ 12, 22.) Carnevale alleges that the fire was accidental. (Id. ¶

23.)

The Bureau of Alcohol, Tobacco and Firearms (“ATF”) was the lead United States

investigative agency regarding the fire and that William Petraitis (“Petraitis”), a Special Agent

for the ATF, was the lead fire investigator. (Id. ¶¶ 26, 27.) According to Carnevale, Petraitis’

fire investigation and his ultimate determination that the fire was intentionally set was wrong

because, among other reasons, the witness statements taken at the scene “established that the

fire…was accidental and not intentionally set.”; Petraitis “did not perform the appropriate

investigation” to support his position that the fire was intentionally set; and Petraitis “never took

any legitimate steps to rule out an accidental cause of the fire.” Further, based on Carnevale’s

analysis of the evidence, “[t]here has never been any valid and/or reliable chemical analysis to

prove that lacquer thinner was used as an accelerant to start the fire…or that the fire originated

anywhere but from the malfunctioning of the building’s heating system, which caused …pipes in

the building to overheat.” (Id. ¶¶ 23,28, 30-32, 39.)

Carnevale also alleges that Petraitis intentionally falsified evidence by stating that he had

ruled out an accidental fire despite knowing that there was no evidence to support this

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conclusion, and that he made false representations to other investigators, including that the fire

was intentionally set and that an accelerant was used to start it. (ECF No. 44 ¶¶ 29, 31-35.)

Carnevale also finds fault with other ATF decisions, including whether to evacuate the scene,

when to collect evidence, what evidence to collect and the reliability of that evidence. (Id. ¶¶44-

47.)

Carnevale also takes issue with the laboratory report prepared by chemists at the ATF

laboratory. He claims that Petraitis told William Kinard (“Kinard”), a chemist for ATF, “to

falsify his reporting to state that lacquer thinner was present in the mechanical room of the

basement” of the building where the fire took place “when it was not” and that in response,

“Kinard intentionally (and falsely) determined in his chemical report that compounds of lacquer

thinner were present in the area where Petraitis said they would be.” (ECF No. 44 ¶¶ 34, 35.) He

also alleges that before his criminal trial, Julia A. Dolan, the Forensic Laboratory Chief of the

ATF, “identified falsifications within every one of Kinard’s findings in connection with the

presence of lacquer thinner” and that Dolan’s Supervisor, Richard Strobel “agreed” with Dolan.

(Id. ¶¶ 36, 37.) Finally, Carnevale claims, these findings were either turned over to prosecutors

who withheld the information or were never provided to the prosecution by ATF. (Id. ¶38.)2

2 The allegations of purported misconduct of the ATF agents made in the Amended Complaint (ECF No.

44 ¶¶26-52) are the same as those contained in the original Complaint but which did not name the United

States as a defendant (ECF No. 1 ¶¶23-50). None of the paragraphs of either the original Complaint or

the Amended Complaint specifically identify a constitutional violation against either the ATF agents or

the United States based on the purported misconduct.

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III. Standard of Review

A. Rule 12(b)(1)

The United States has moved to dismiss Carnevale’s FTCA claim under Federal Rule of

Civil Procedure 12(b)(1) and 12(b)(6). It first argues that this court lacks subject matter

jurisdiction under Fed. R. Civ. Pro. 12(b)(1) because the discretionary function exception to the

FTCA applies to the claims made against the ATF fire investigators and Carnevale’s allegations

about the ATF chemists fail based upon the “law enforcement proviso” of the FTCA. (ECF No.

53 pp. 6-17.)

“A challenge to subject matter jurisdiction under Rule 12(b)(1) may be either a facial or

factual attack.” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial challenge is

made without “disputing the facts alleged in the complaint, and it requires the court to ‘consider

the allegations of the complaint as true.’” Id. citing Petruska v. Gannon Univ., 462 F.3d 294,

304 n. 3 (3d Cir. 2006) (quoting Mortensen v. First Fed. Sav. & Laon Ass’n, 549 F.2d 884, 891

(3d Cir. 1977). A factual challenge attacks the “factual allegations underlying the complaint’s

assertion of jurisdiction, either through the filing of an answer or ‘otherwise present[ing]

competing facts.’” Id. citing Const. Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014).

In part, the United States makes a factual challenge to the court’s subject matter

jurisdiction over Carnevale’s claims. In support of its 12(b)(1) motion, it has attached the

Declaration of ATF Deputy Assistant Director Gregory Czarnopy (the “Cznaropy Declaration”).

This Declaration discusses the job classifications and duties of chemists who work for ATF in

support of its argument that ATF chemists fall outside the definition of “investigative and law

enforcement officers” under the FTCA. (ECF 53-1.) Thus, the court may “weigh and consider

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evidence outside the pleadings.” Constitution Party of Pa., 757 F.3d at 358. When Rule 12(b)(1)

factual challenge is made, “the plaintiff will have the burden of proof that jurisdiction does in

fact exist’ and the court is “free to weigh the evidence and satisfy itself as to the existence of its

power to hear the case.” Mortensen, 549 F.2d at 891. “No presumptive truthfulness attaches to

[the] plaintiff’s allegations.” Id.

As it relates to the conduct of Petraitis, however, the United States has not submitted any

additional facts for consideration. Therefore, the Court must consider any well-pleaded facts in

the Amended Complaint as true for the purpose of resolving the Rule 12(b)(1) motion.

B. Rule 12(b)(6)

The United States alternatively contends that Fed. R. Civ. Pro. 12(b)(6) bars Carnevale’s

FTCA claim because he has not plausibly alleged that ATF initiated his prosecution. Further, it

asserts, a claim based on Petraitis’ purportedly false testimony at trial “is precluded under well-

established law.” (Id. p. 18.)

“Under Rule 12(b)(6), a 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 plaintiff’s claims lack facial plausibility.” Warren Gen. Hosp. v.

Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the

claim is facially plausible,” thus enabling “the court to draw the reasonable inference that the

defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

6

See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).

As noted by the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a

12(b)(6) inquiry includes identifying the elements of a claim, disregarding any allegations that

are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to

evaluate whether the elements of the claim are sufficiently alleged. If a claim “is vulnerable to

12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment

would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir.

2008) (citation omitted).

In ruling on a Rule 12(b)(6) motion, courts generally consider only the complaint,

attached exhibits and matters of public record. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir.

2014).

IV. Discussion

A. Motion to Dismiss Under Rule 12(b)(1)

1. Carnevale’s Claim Regarding the ATF Fire Investigation

The United States contends that the discretionary function exception to the FTCA bars

Carnevale’s FTCA claim regarding the ATF fire investigation. (ECF 53 p. 6.)

The FTCA waives the federal government’s sovereign immunity for the negligent actions

of its employees. See Berkovitz v. United States 468 U.S. 531, 535 (1988); 28 U.S.C. §§2671-

2680. That waiver, however, is subject to certain exceptions, including the discretionary

function exception. This exception effectively retains the Government’s immunity for ‘[a]ny

claim…based upon the exercise or performance or the failure to exercise or perform a

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discretionary function or duty…whether or not the discretion involved be abused.” 28 U.S.C. §

2680(a). Consequently, a claim for conduct that falls within this exception must be dismissed for

lack of subject matter jurisdiction. Berkovitz, 486 U.S. at 533.

The Supreme Court has set forth a two-part test for determining whether the discretionary

function exception applies. First, a court must consider the nature of the conduct and decide

whether it “involve[es] an element of judgment or choice.” United States v. Gaubert, 499 U.S.

315, 322 (1991) (citation omitted). When it does not involve judgment or choice, such as where

“a federal statute, regulation or policy specifically prescribes a course of action for the employee

to follow,” the inquiry is at an end and the exception is inapplicable because in such a situation,

“the employee has no rightful option but to adhere to the directive.” Id. However, where the

employee does have a choice, the court considers “whether that judgment is of the kind that

the…exception was designed to shield.” Id. at 322-323. At this point, a court must determine

whether the conduct is objectively “susceptible to policy analysis.” Id. at 325. “In sum, the

discretionary function exception insulates the Government from liability if the action challenged

in the case involves the permissible exercise of policy judgment.” Berkovitz, 486 U.S. at 537.

That said, “conduct cannot be discretionary if it violates the Constitution” because ‘[f]ederal

officials do not possess discretion to violate constitutional rights.’” U.S. Fed. & Guar. Co. v.

United States, 837 F.2d 116, 120 (3d Cir. 1988) (internal citations omitted); see also Xi v.

Haugen, et al., 68 F.4th 824, 839 (3d Cir. 2023).

Here, the United States argues that Carnevale’s FTCA claim regarding the fire

investigation is barred by the discretionary function exception because he is challenging the

“adequacy of the ATF’s investigation.” (ECF No. 53 p. 7.) Carnevale counters that the

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discretionary function exception does not apply here because the ATF agents committed

“constitutional violations.” In support of his contention, Carnevale relies upon decisions from

this and other Circuits that hold that the discretionary function exception does not apply when

the “plaintiff plausibly argues, among other things, unconstitutional conduct.” U.S. Fid. & Guar.

Co. v. United States, 837 F.2d 116,120 (3d Cir. 1998) (ECF 61 p. 8.)

Carnevale is correct that when a constitutional violation has been alleged, the

discretionary function exception does not apply. While he alleges specific constitutional

violations against defendants DiGiovanni, Evans and Smith in the Amended Complaint (see ECF

No. 44 Counts I and II headings; and text of ¶¶ 103-107), he makes no specific reference to a

constitutional violation on the part of the United States or its employees. (See id. Count VI

heading; and text of ¶¶111-112.) Although Carnevale asserts in his brief that his claims against

ATF employees relate to constitutional violations, it is well-settled that a party may not rely upon

factual allegations in a brief that are not in the operative complaint. Dongelewicz v. PNC Bank

Nat’l Ass’n., 104 F. App’x 811, 819 n.4 (3d Cir. 2004) (Noting that “‘a contention in a brief

‘clearly ... may not’ be used to ‘substitute for an allegation in a complaint’”)(quoting Williams v.

New Castle Cnty., 970 F.2d 1260, 1266 n.4 (3d Cir. 1992) ); Com. of Pa. ex rel. Zimmerman v.

PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic that the complaint may not be

amended by the briefs in opposition to a motion to dismiss.” (internal citation omitted)).

Construing the allegations of misconduct made against the ATF agents liberally,

however, as the Court is required to do, Carnevale has arguably alleged constitutional violations.

Specifically, the Amended Complaint accuses Petraitis of falsely claiming that lacquer thinner

“was used as an accelerant to start the fire” in order to “support his claim that the fire was

9

intentionally set” and then telling Kinard, an ATF chemist, “to falsify his reporting to state that

lacquer thinner was present” in the area where the fire started “when it was not.” (ECF 44 ¶¶33-

34.) (Id.) Read liberally, these allegations accuse Petraitis of falsely and intentionally fabricating

evidence in the context of a potential criminal investigation. These allegations, if true, plausibly

assert a Fourth Amendment violation. See Xi v. Haugen, et al., 68 f.4th 824 (3d Cir. 2023) (a

plaintiff who makes an accusation of fabrication of evidence plausibly asserts a Fourth

Amendment violation).

As the United States points out, many of the allegations of the Amended Complaint

clearly relate conduct by Petraitis that represents the permissible exercise of judgment. By way

of example, Petraitis is alleged to have made judgments about the witness statements in ruling

out an accidental fire. Further, he “never took any legitimate steps” to rule out an accidental

cause of the fire. He is also alleged to have failed to perform an “appropriate investigation.” In

other words, while Carnevale questions Petraitis’ judgment, the adequacy of his investigation

and his conclusions, these allegations fall squarely within the discretionary function exception.

On the other hand, the allegations of intentional falsification of evidence and falsely

reporting that an accelerant existed in a specific location when it did not, and instructing a

chemist to perpetuate this falsehood, taken as true, fall outside the protections afforded by the

discretionary function exception.

Therefore, as it relates to the ATF investigation, the United States’ motion to dismiss

under Fed. R. Civ. Pro. 12 (b)(1) will be denied.

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2. Carnevale’s Claims Regarding the Conduct of ATF Chemists

As it relates to the ATF chemists, the United States claims that their conduct falls outside

the “law enforcement proviso” of the FTCA codified at 28 U.S.C. § 2680(h). (ECF No. 53 pp.

12-18.) The “law enforcement proviso” is a limited waiver of sovereign immunity for claims

arising out of “assault, battery, false imprisonment, false arrest, abuse of process, or malicious

prosecution” by an “investigative or law enforcement officer.” 28 U.S.C. § 2680(h). The FTCA

defines an “investigative or law enforcement officer” as “any officer of the United States who is

empowered by law to execute searches, to seize evidence, or to make arrests for violations of

Federal law.” Id. To determine whether the proviso applies, a court must consider the status of

persons whose conduct may be actionable, not the types of activities in which they were in

engaged that gave rise to the tort claim. Millbrook, 569 U.S. at 56 (2013). “Under the proviso,

an intentional tort is not actionable unless it occurs while the law enforcement officer is “acting

within the scope of his office or employment.” Id. The Supreme Court has also explained that

“[t]he plain text confirms that Congress intended immunity determinations to depend on a federal

officer's legal authority, not on a particular exercise of that authority.” Id.

The United States argues that it is immune from liability for the alleged conduct of the

ATF chemists because they are not “investigative or law enforcement officers.” (ECF No. 53 p.

13.) In support, they cite the Cznaropy Declaration, which states that the ATF does not classify

chemists under the GS-Grade for law enforcement and special agents; rather, they are classified

under the code used for scientists and engineers. Cznaropy Declaration at ¶6. In addition,

according to the position description of an ATF chemist that is set forth in Exhibit A of the

Cznaropy Declaration, chemists with the ATF serve “as the technical authority in the analysis of

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forensic evidence gathered from criminal investigations[,]…are not authorized to serve or

execute warrants, serve subpoenas, make arrests, or carry a firearm, which are duties separately

designated by Congress and ATF to Special Agents…and do not receive law enforcement

training at the Federal Law Enforcement Training Center.” (ECF No. 53 p. 14.) Thus, the

United States contends, because ATF chemists are not investigative or law enforcement officers

as defined by the FTCA, it is immune from liability for their conduct. (Id. p. 18.)

In response, Carnevale argues because ATF chemists have the power to advise and assist

special agents at crime scenes where special expertise might assist the investigation, they are

“investigative or law enforcement officers” under the FTCA and as a result, the United States is

not immune for their improper conduct. (ECF No 61 pp. 16-20.) In support, Carnevale cites and

quotes extensively from Bunch v. United States, 880 F.3d 938 (7th Cir. 2018). In Bunch, relying

on the same regulations cited by Carnevale regarding chemists’ authority to enter a crime scene,

the Seventh Circuit Court of Appeals found there was a question of material fact as to whether a

forensic chemist with the ATF who was at the crime scene with an ATF agent was an

“investigative or law enforcement officer” within the meaning of the FTCA and remanded to the

lower court to develop a factual record on the issue. Id. at 943. Notably, the Seventh Circuit did

not hold that the ATF chemists involved in that case were “investigative or law enforcement

officers” under the FTCA – the court simply held that such decision would be resolved at trial.

Id.

While the United States concedes in its Reply that “chemists have legal authority to

‘advise’ and ‘assist’ an agent on a crime scene…[and] that the only disagreement between the

parties is a legal one – that is whether the legal authority to assist an agent on a crime scene is the

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equivalent to ‘executing a search’” under the FTCA (ECF No. 65 p. 5), it notes that the Bunch

case is not controlling authority in the Third Circuit. Further, there is no binding authority in this

Circuit holding that ATF chemists are “investigative or law enforcement officers” under the

FTCA and that “categorizing them as such is contrary to the plain language and history” of the

FTCA. Id. p. 6.

Because this is a factual challenge to this court’s subject matter jurisdiction filed pursuant

to Fed R. Civ. Pro. 12(b)(1), the Court may consider the Czarnopy Declaration and its attached

exhibit in evaluating this matter. See Constitution Party of Pa., 757 F.3d at 358. In addition, it

has also considered the allegations of the Amended Complaint. These allegations confirm that

Kinard, the ATF chemist, performed no independent investigative or law enforcement activities,

nor is he alleged to have assisted Petraitis in the investigation. Rather, his report included

allegedly false information supplied by Petraitis. The only other allegations about the conduct of

ATF employees state that they identified falsifications in Kinard’s report years later “in

preparation for Mr. Carnevale’s criminal trial” and either turned over these findings to

prosecutors and intentionally failed to do so. Even if assumed to be true, this conduct does not

represent investigative or law enforcement activity.

Having considered all evidence in the record, the Court finds that there is no basis to

conclude that the ATF chemists identified in the Amended Complaint were acting as

“investigative or law enforcement officers” as defined by the FTCA. Consequently, this court

lacks subject matter jurisdiction over the FTCA claim against the United States to the extent that

it is based on their alleged conduct and will grant its motion to dismiss with respect to such

claim.

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B. Motion to Dismiss Under Rule 12(b)(6)

As it relates to its Rule 12(b)(6) motion, the United States contends that to the extent

Carnevale’s FTCA claim is based on Petraitis’ purported false testimony at trial, his claim is

precluded under “well-established law.” (ECF No. 53 p. 18.) As pointed out in the United

States’ Reply Brief, Carnevale’s Brief in Opposition to its motion includes no discussion of this

argument. Thus, it appears that Carnevale does not contest the United States’ position that he

cannot rely upon allegedly false testimony by Petraitis to support his FTCA claim. At any rate, as

asserted by the United States, federal law enforcement agents have absolute immunity from

liability based upon their testimony. See Hughes v. Long, 242 F.3d 121 125 (3d Cir. 2001)

(“Witnesses, including public officials and private citizens, are immune from civil damages

based upon their testimony.”) (citing Briscoe v. LaHue, 460 U.S. 325, 341, 345-346 (1983)).

Thus, a claim based upon false testimony by Petraitis fails as a matter of law.

The United States also argues that Carnevale fails to state a claim of malicious

prosecution under the FTCA because he has not plausibly alleged that the ATF initiated his

prosecution. In Count IV, Carnevale alleges that the United States, through its employees,

“negligently initiated the prosecution” of Carnevale. (ECF No. 44 ¶112.) Carnevale alternatively

claims that employees of the United States maliciously prosecuted Carnevale by fabricating

evidence and using it against him to bring about his prosecution and/or help secure his

conviction. (Id. ¶ 113.)

Because the alleged conduct that gave rise to the claim occurred in Pennsylvania,

Pennsylvania law applies. 28 U.S.C. § 1346(b)(1). Under Pennsylvania law, “a claim for

malicious prosecution consists of these five elements:(1) the defendant initiated a criminal

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proceeding;(2) without probable cause; (3) maliciously or for a purpose other than bringing the

plaintiff to justice; (4) causing the plaintiff to suffer a deprivation of liberty consistent with the

concept of seizure; and (5) the outcome of the criminal proceeding favored the plaintiff.”

Karkalas v. Marks, 845 Fed. Appx. 114, 119 (3d Cir. 2021) (citing Harvard v. Cesnalis, 973

F.3d 190, 203 (3d Cir. 2020)). Malicious prosecution under § 1983 requires the same elements.

Kossler v. Crisanti,564 F.3d 181,186 (3d Cir. 2009) (quoting Estate of Smith v. Marasco, 318

F.3d 497, 521 (3d Cir. 2003).

According to the Amended Complaint, the fire and subsequent ATF investigation took

place in 1993. No criminal charges are alleged to have been brought against Carnevale at that

time. In fact, it is not alleged that the ATF even identified Carnevale as a suspect. Twelve years

later, this “cold case” was reopened by William Mullen, the former Sheriff of Allegheny County.

(ECF No. 44 ¶53.) Carnevale does not allege that the ATF was involved in any way with

Mullen’s decision to re-open the case.

As alleged in the Amended Complaint, Defendants Evans and Smith were the primary

investigators when the case was re-opened, but they chose not to reinvestigate the cause of the

fire. They did, however, conduct an independent investigation. As alleged in the Amended

Complaint, Evans and Smith were provided with a plethora of information that called into

question any responsibility on the part of Carnevale, but allegedly chose to ignore or conceal it.

Moreover, as alleged in the Amended Complaint, it was Evans and Smith who prepared the

affidavit of probable cause that led to his arrest. While they allegedly included certain findings

made by the ATF years before, it was Evans and Smith, not the ATF, who prepared the affidavit

and made the determination of what to include, or not include, therein. As stated in the

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Amended Complaint, Evans and Smith used other “false information” in their affidavit and

knowingly omitted other material information. And as Carnevale admits in the Amended

Complaint, Evans and Smith subsequently arrested Carnevale “based solely on the information

provided by Sandi and Shane Evans” to them. Neither of these witnesses are alleged to have

given evidence to Petraitis years before. (ECF No. 44¶ 80.) (emphasis added)

Thus, based on Carnevale’s pleading, it cannot reasonably be concluded that the initiation

of his prosecution was by any employee of the United States. As no United States employee

was involved in this process, there is no basis to conclude, nor has Carnevale pleaded, that the

United States “initiated” a criminal proceeding against Carnevale or did so without probable

cause. Thus, neither of these requisite elements of a malicious prosecution claim are plausibly

pleaded.

Further, the Amended Complaint does not allege that any ATF employee engaged in

malicious conduct towards Carnevale for a reason other than bringing him to justice. While

Carnevale alleges that the ATF investigation was deficient and included false conclusions, he

does not allege that any of this conduct was done maliciously or that it was specifically directed

to Carnevale. Indeed, there is no allegation in the Amended Complaint that when the

investigation ended in 1993, anyone from the ATF had implicated Carnevale or intended to do so

with malicious intent.

As it relates to the prosecution of Carnevale years later, the sole involvement of the ATF

is that its employees may have intentionally failed to provide information about false statements

to investigators and prosecutors and “allowed the criminal trial to proceed in the face of them.”

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(ECF No. 44 ¶ 38.)3 But this allegation falls far short of conduct that meets all of the necessary

elements of a malicious prosecution claim. Moreover, even if the ATF failed to provide this

information, the independent investigation by Evans and Smith, the determination that probable

cause existed and the decision to proceed with the prosecution is not alleged to have been based

on the chemist’s report. Simply put, more than twelve years after the ATF’s involvement had

ceased, the Commonwealth of Pennsylvania decided to prosecute Carnevale based upon the

investigation of Evans and Smith, and according to the Amended Complaint, the subsequent

determination of probable cause, whether justified or not, was based on a number of factors.

Citing Hess v. County of Lancaster, 514 A.2d 681 (Pa. Cmwlth. 1986) and Demby v.

Drexel Univ., 2016 WL 5515853 (Pa. Super. Aug. 16, 2016), Carnevale argues that “whether a

defendant instituted proceedings may appropriately be based on the provision of false

information to another.” (ECF No. 61 p. 14.) (emphasis in original). He contends that “because

other investigators and prosecutors relied on the knowingly false information provided to them

by the ATF that the fire…was intentionally set, they set in motion a criminal process” which

resulted in the charges being filed against him. (Id. p. 16.) Notably, however, the Amended

Complaint makes no such allegation; indeed, the cold-case investigation that led to Carnevale’s

arrest and prosecution is alleged to have been flawed in a number of respects, as recounted at

length. Moreover, it is not plausible to suggest that an investigation in 1993 “set in motion” a

cold case that was reopened years later. And notably, Carnevale has specifically alleged that his

arrest was based solely on information received from Sandi and Shane Evans.

3 Carnevale alternatively asserts that the ATF did turn over information about the alleged falsity of

Kinard’s findings about the presence of lacquer thinner “to investigators and prosecutors before Mr.

Carnevale’s criminal trial and those investigators unlawfully withheld it.” (ECF No. 44 ¶ 38.)

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In addition, neither Hess nor Demby apply here. Hess involved a private individual who

was accused of providing false testimony at a state court proceeding which resulted in Hess

being prosecuted for perjury, which charge was later dropped.4 Carnevale’s reliance on Demby

likewise is similarly misplaced. In Demby, the plaintiff claimed to have been falsely arrested and

charged with various crimes, which charges were later dropped because false paperwork had

been provided to the Philadelphia District Attorney’s Office by Drexel University employees and

officers. After preliminary objections to his malicious prosecution claim (and other claims) were

sustained by the Philadelphia County Common Pleas Court, the plaintiff appealed to the

Pennsylvania Superior Court. In a “non-precedential” decision, the Superior Court reversed the

dismissal of the malicious prosecution claim, finding that “as pleaded in the complaint, [the

Drexel employees and officers] knew the allegations were false and that the Philadelphia

municipal police authorities were relying on these false allegations to charge [Demby].”

Here, the Amended Complaint explicitly pleads that Evans and Smith did not rely upon

the ATF findings in order to arrest and charge Carnevale, nor does it allege that anyone at the

ATF knew of any such reliance.

Thus, because the Amended Complaint does not plausibly allege facts that could support

the elements of a malicious prosecution claim, Carnevale has failed to state a claim upon which

relief may be granted against the United States. Allowing another amendment of the Amended

4 Moreover, the Pennsylvania Commonwealth Court determined in Hess that to charge a private person

with responsibility for the initiation of proceedings by a public office, the person alleging malicious

prosecution must show that the private person had a desire to have the proceedings initiated, expressed by

direction or pressure of any kind and that such pressure was the determining factor in the public official’s

decision to commence the prosecution. Hess, 514 A.2d at 322. No such facts are pleaded here.

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Complaint would be futile in light of the nature of the allegations of the Amended Complaint

regarding the initiation of proceedings against Carnevale and his prosecution.

V. Conclusion

For these reasons, the United States’ Motion to Dismiss will be granted. An appropriate

Order follows.

Dated: August 17, 2023 BY THE COURT:

/s/ Patricia L. Dodge

PATRICIA L. DODGE

UNITED STATES MAGISTRATE JUDGE

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