BURTON v. ZIEGLER

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TIM BURTON, )

) No. 2:21-CV-01215-KT

Plaintiff, )

)

vs. )

) Magistrate Judge Kezia O. L. Taylor

MARC ZIEGLER, in his Individual )

Capacity as a Trooper for the Pennsylvania )

State Police, )

)

Defendant. )

MEMORADUM OPINION ON DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

Pending before the Court is the Summary Judgment Motion filed by Defendant Marc

Ziegler, in his individual capacity as a Trooper for the Pennsylvania State Police (“Defendant”).

ECF No. 45. Plaintiff Tim Burton (“Plaintiff”) brought this civil rights action under 42 U.S.C.

§ 1983 seeking redress for the alleged violation of his constitutional and state law rights as part of

his arrest on fourteen criminal charges, thirteen of which were sex crimes alleged by his

stepdaughter. ECF No. 23. In his Amended Complaint, Plaintiff brought two counts against

Defendant, Count I for malicious prosecution in violation of the Fourth Amendment and

Fourteenth Amendment and Count II for reckless investigation in violation of the Fourth

Amendment. Id.

Defendant seeks summary judgment on the grounds that 1) he is entitled to judgment on

Plaintiff’s claim of malicious prosecution because there was probable cause to initiate criminal

proceedings against Plaintiff; and 2) he is entitled to qualified immunity on Plaintiff’s claim of

reckless investigation, and/or that claim is barred by the applicable statute of limitations. ECF No.

45. For the reasons below, Defendant’s motion for summary judgment will be granted.

I. Relevant Factual and Procedural Background

The record as read in the light most favorable to Plaintiff establishes the background set

forth below.1 On May 7, 2017, Michele Swan (“Swan”), her daughter D.M., then 19, attended a

gem show at the Washington County Fairgrounds with a family friend and the friend’s daughter.

Swan Dep., ECF No. 48-5, at 10:16-22. At that time, and at all relevant times, Swan and Plaintiff

were married to one another. Swan Dep., ECF No. 48-5, at 7:15 – 8:15, Plaintiff Dep., ECF No.

48-6, at 13:1-9. Thus, Plaintiff was D.M.’s stepfather. Swan Dep., ECF No. 48-5, at 12:8-11.

Urged by the family friend in whom D.M. had earlier confided, after leaving the show D.M. told

her mother, Swan, that Plaintiff “has been sexually assaulting her for years…. From the time she

was 14 until the time she turned 18.” Swan Dep., ECF No. 48-5, at 14:3-15. The women were

ultimately directed to and went that day to the Belle Vernon State Police Station, Westmoreland

1 These facts are taken from the parties’ concise statements of material facts, and responses thereto,

and are undisputed unless otherwise indicated. ECF No. 47, ECF No. 58, and ECF No. 59. We

note, however, that Plaintiff has grouped together numerous numbered paragraphs in his response,

ECF No. 58, to the moving party’s Concise Statement of Material Facts, ECF No. 47, rather than

responding to each numbered paragraph as required. W.D. Pa. LCvR 56. In particular, as to the

facts (1) surrounding D.M.’s allegations and (2) of the criminal proceedings, rather than “admitting

or denying whether each fact contained in the moving party’s Concise Statement of Material Facts

is undisputed and/or material,” W.D. Pa. LCvR 56(C)(1)(a) (emphasis supplied), Plaintiff offers

universal responses. As to both groups, Plaintiff states: “Admitted in part and disputed in part. It

is admitted that these excerpts to the record are true, it is specifically disputed that they establish

that probable cause existed . . . .” ECF No. 58, at *1, *2. The Court will consider admitted those

facts about which Plaintiff states “these excerpts to the record are true. . . . ” See Polansky v. Vail

Homes, Inc., CV 13-296, 2016 WL 2643253, at *4 (W.D. Pa. May 10, 2016) (“Under Local Rule

56(E) . . . undisputed facts ‘will for the purpose of deciding the motion for summary judgment be

deemed admitted unless specifically denied or otherwise controverted by a separate concise

statement of the opposing party.’ LCvR 56(E) (2013). In prior cases, this Court has strictly applied

LCvR 56(C) and 56(E).”) Probable cause is a question of law; a dispute as to probable cause does

not, therefore, demonstrate a genuine dispute as to any material fact.

County, Pennsylvania, where Marc Ziegler (“Defendant”) was on duty. Swan Dep., ECF No. 48-

5, at 16:2-9, 17 :3-7; Defendant Dep., ECF No. 48-4, at 12-13, See Investigative Report, ECF No.

48-5, at 2-3. Defendant had been employed as a Pennsylvania State Trooper since 2009, Defendant

Dep., ECF No. 48-4, at 7, and was then with the Crimes Section at the Belle Vernon State Police

Station. Id. at 7-9.

When Defendant interviewed D.M. “she related that she was being sexually assaulted by

her father -- stepfather, Mr. Burton.” Id. at 13. See also Inv. Report, ECF No. 48-1, at 2-3. These

assaults included Plaintiff forcing D.M. to perform oral sex on Plaintiff as well as Plaintiff forcing

her to have vaginal intercourse. Id. at 4. D.M. reported that this had occurred from the Summer

of 2012 until the Winter of 2016. See Defendant Dep., ECF No. 48-4, at 13-14. See also Inv.

Report, ECF No. 48-1, at 2-3.

The next day, May 8, 2017, Defendant asked Plaintiff to come to the Belle Vernon State

Police Station for an interview and told Plaintiff that the matter could not be discussed on the

telephone. See Defendant Dep., ECF No. 48-4, at 15-16, at 40-42; Plaintiff Dep., ECF No. 48-6,

at 15:3-22. See also Inv. Report, ECF No. 48-1, at 5. Plaintiff stated that he was at work but would

meet with Defendant a day later, May 9, at 7:00 a.m. See Defendant Dep., ECF No. 48-4, at 40-

42 . Plaintiff called back later on May 8, leaving the message that he would come to the Belle

Vernon State Police Station that afternoon at 2:00 p.m. to meet with Defendant. Id. Later,

Defendant called Plaintiff and told Plaintiff that he could not meet at that time. Id. Defendant

subsequently received a voice mail from a criminal defense attorney stating that Plaintiff had been

advised not to speak with the police. Defendant Dep., ECF No. 48-4, at 41; Plaintiff Dep., ECF

No. 48-6, at 15:19-16:5. See also Inv. Report, ECF No. 48-1, at 5.

Also on May 8, 2017, D.M. and her mother returned to the Belle Vernon State Police

Station and spoke again with Defendant. Defendant Dep., ECF No. 48-4, at 43:22-23; Swan Dep.,

ECF No. 48-5, at 33:8-11. At his deposition, Defendant stated that:

[D.M.] was hesitant in going through with the alleged charges…. She was

nervous. I think she didn’t want -- I don’t want to speculate because I don’t recall

exactly what she said. But I do recall her scared about what’s going to happen

after the charges are brought forward and unsure of her financial standing in terms

of where she’s going to live, what are they going to do for money. Things of that

nature.

Defendant Dep., ECF No. 48-4, at 45:15-23. Defendant did not include D.M.’s reservations about

proceeding in his Investigative Report. See Inv. Report, ECF No. 48-1.

On the night of May 7th or on the morning of May 8th, D.M left voicemails for Defendant.

Swan Dep., ECF No. 48-5, at 31:20-32:19. At Swan’s deposition, she testified that she heard

D.M.’s side of the conversation with Defendant; when asked at her deposition “what did [D.M.]

say?,” Swan related:

A. She said that she wanted to recant. She did not want to go through with this.

Q. Okay. Those are kind of two different things. Did she say she didn’t want to go

through with it?

A. Different voice mails, different responses.

Q. In those conversations you had with [D.M.], did she ever -- and let’s start with

on the night of the 7th, the morning of the 8th. Did she ever tell you that this never

happened? ‘I’m making it up’?

A. She did not. She still has not.

Q. That was my next one. Has she ever told you that she was making this up?

A. (Witness shakes head no.) (Whereupon, there was a brief court reporter

clarification.)

THE WITNESS: No.

Id. D.M. later testified at several criminal proceedings.2 Defendant compiled an investigative

report on the matter. See Inv. Report, ECF No. 48-1.

On May 10, 2017, Defendant filed a Criminal Complaint and Affidavit of Probable Cause

against Plaintiff, Defendant Dep., ECF No. 48-4, at 14-44, with fourteen counts, including rape

and other sexual assault charges. Crim. Compl., ECF No. 48-1, at 26-33. A Pennsylvania

Magisterial District Judge issued an arrest warrant on May 11, 2017. See Arrest Warrant, ECF

No. 48-1, at 38-42.

Plaintiff proceeded to a trial by jury on or about September 9, 2019. See Criminal Docket

ECF No. 48-2, at 13. Of the 11 counts presented to the jury,3 Plaintiff was found not guilty of four

counts, but the jury was hung on the remaining counts and a mistrial was declared. See Id. See

Verdict Slip, ECF No. 48-2, p 54-55. On February 4, 2020, the District Attorney sought to nolle

pross the remaining charges, and on February 7, 2020, a Washington County judge dismissed all

remaining charges with prejudice and nolle prosse was entered. See Criminal Docket, ECF No.

48-2, p 14.

Which brings us to Plaintiff’s 42 U.S.C. § 1983 suit in this Court. Plaintiff’s Amended

Complaint asserts malicious prosecution under the Fourth and Fourteenth Amendments at Count

I and reckless investigation under the Fourth Amendment, at Count II. ECF No. 23. On August

2 D.M. testified at several Pennsylvania criminal proceedings, including Plaintiff’s preliminary

hearing, pretrial habeas corpus hearing, and Plaintiff’s criminal jury trial. See Defendant Dep.,

ECF No. 48-4, at 60; Plaintiff Dep., ECF No.48-6 at 23; Swan Dep., ECF No. 48-5, at 44:9-45:4.

See also Notes of Testimony 10/25/17, ECF No. 48-1, at 49-76; Notes of Testimony 6/1/2018,

ECF No. 48, at 30-43.

3 Two counts were ordered dismissed following Plaintiff’s pretrial petition for habeas corpus relief.

See Criminal Docket, ECF No. 48-2, at 11; See Order, ECF No. 48-2, at 46 -50.

24, 2023, Defendant moved for summary judgment on all claims, ECF No. 45, and Plaintiff filed

a response on December 6, 2023. ECF No. 55. Defendant maintains (1) that the facts and

circumstances of D.M.’s interview on May 7, 2017, gave rise to probable cause to charge Plaintiff,

and so Plaintiff’s Fourth Amendment claim for malicious prosecution fails; and (2) that Defendant

is entitled to qualified immunity on the reckless investigation claim because a reasonable officer

would have believed that probable cause existed. Alternatively, Defendant asserts that a reckless

investigation claim would have arisen in May 2017, was not asserted until September 2021, and is

thus time-barred.

In response, Plaintiff maintains that as to both of his malicious prosecution and reckless

investigation claims, Defendant lacked probable cause to charge him, and that probable cause is

a question of fact for the exclusive decision of the jury. ECF No. 57. Plaintiff further argues that

Defendant is not entitled to qualified immunity, for want of probable cause, and that the reckless

investigation claim is not time-barred. Finally, Plaintiff asserts that material issues of fact remain

for the trier of fact. The motion has been fully briefed and is ready for disposition.

II. Summary Judgment Standard

Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving

party, the pleadings, documents, electronically stored information, depositions, answers to

interrogatories and admissions on file, together with any affidavits or declarations, show “that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56 (a) & (c). A fact is material only if it is “[a] fact[ ] that might

affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, (1986). Summary judgment may be granted against a party who fails to adduce facts

sufficient to establish the existence of any element essential to that party’s case, and for which that

party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Once that burden has been met, the non-moving party must set forth “specific facts showing

that there is a genuine issue for trial” or the record will be taken as presented by the moving party

and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis added by Matsushita

Court). An issue is genuine only “if the evidence is such that a reasonable jury could return a

verdict for the non-moving party.” Anderson, 477 U.S. at 248. Upon considering a motion for

summary judgment:

the judge’s function is not himself to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue for trial. . . .

[T]here is no issue for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party. If the evidence is

merely colorable, or is not significantly probative, summary judgment may be

granted.

Id. at 249-50 (internal citations omitted).

III. Analysis

In general, 42 U.S.C. § 1983 affords private citizens a means to redress violations of federal

law committed by state actors. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress . . . .

Id. Section 1983 is not a source of substantive rights, but merely a method for vindicating

violations of federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284–85 (2002); Kneipp v. Tedder,

95 F.3d 1199, 1204 (3d Cir.1996). To establish a Section 1983 claim, a plaintiff must show a

deprivation of a “right secured by the Constitution and the laws of the United States ... by a person

acting under color of state law.” Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141

(3d Cir.1995)). There is no dispute that Defendant was acting under color of state law at all times

relevant to this litigation.

In section 1983 cases, “the exact contours of the underlying right said to have been

violated” must be determined. Bracken v. Manor Twp., 665 F. Supp. 3d 675, 690 (W.D. Pa. 2023)

(citing County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)). Plaintiff alleges that he (a)

faced malicious prosecution without probable cause in violation of the Fourth and Fourteenth

Amendments and (b) was subjected to reckless investigation in violation of the Fourth

Amendment.

A. Malicious Prosecution in Violation of the Fourth and Fourteenth Amendments

(Count I)

Plaintiff must proffer sufficient evidence to create a triable issue of fact as to all five of these

elements to prevail on a malicious prosecution claim under section 1983:

(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding

ended in the plaintiff’s favor; (3) the proceeding was initiated without probable

cause; (4) the defendants acted maliciously or for a purpose other than bringing the

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

with the concept of seizure as a consequence of a legal proceeding.

McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009). See also Domenech v. City

of Philadelphia, No. CIV.A. 06-1325, 2009 WL 1109316, at *9 (E.D. Pa. Apr. 23, 2009), aff’d,

373 F. App’x 254 (3d Cir. 2010) (“If Plaintiffs have not proffered evidence sufficient to create a

triable issue of fact as to all five prongs, their malicious prosecution claim must fail as a matter of

law.”) Defendant has conceded point one, that he initiated a criminal proceeding, and point two,

that the proceeding ended in Plaintiff’s favor. ECF No. 58. Neither party has briefed point five,

whether the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a

consequence of a legal proceeding; our holding today makes that discussion superfluous. The

remaining issues of whether the proceeding was initiated without probable cause or with malice

are most salient.

(1) Probable Cause

The Fourth Amendment prohibits an arrest of a citizen except upon probable cause. Orsatti

v. New Jersey State Police, 71 F3d. 480, 482 (3d Cir. 1995). Probable cause stops well short of

the standard required for conviction, and even well short of a belief in certain guilt; “[p]robable

cause exists if there is a ‘fair probability’ that the person committed the crime at issue. Wilson v.

Russo, 212 F.3d 781, 789–90 (3d Cir. 2000) (citing Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d

Cir. 1997). The standard is that of a “reasonable person” evaluating the “facts and circumstances

within the arresting officer’s knowledge”:

Probable cause to arrest exists when the facts and circumstances within the arresting

officer’s knowledge are sufficient in themselves to warrant a reasonable person to

believe that an offense has been or is being committed by the person to be arrested.”

Rogers, 120 F.3d at 453 (citing Orsatti, 71 F.3d at 483). To review, by the time Plaintiff was

arrested, Defendant had interviewed the stepdaughter, D.M., then nineteen, in-person. D.M.

related that Defendant had sexually assaulted her several times. Among other things, Plaintiff

forced her to perform oral sex on him and forced her to have vaginal intercourse with him. And

told Defendant that these sexual assaults began in Summer 2012, when D.M. was fourteen, and

continued until Winter 2016 when D.M. was nearly eighteen. In short, in Defendant’s perception,

he had credible, in-person testimony, from an adult, who stated that she had been sexually abused

by her stepfather. Plaintiff does not challenge the fact of the interview or D.M.’s credibility.

The starting point for probable cause is examining the elements of the crimes charged.

Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005). D.M.’s statements that she was

the victim of forcible sexual intercourse, oral penetration, and other acts while a minor enabled

Defendant to make out the charges against Plaintiff, including Rape, Statutory Sexual Assault (18

Pa.C.S. § 3122.1(b)), Involuntary Deviate Sexual Intercourse (18 Pa.C.S. § 3123), Aggravated

Indecent Assault (18 Pa.C.S. § 3125), Indecent Assault (18 Pa.C.S. § 3126), along with

Endangering Welfare of Children (18 Pa.C.S. § 4304) and Corruption of Minors (18 Pa.C.S. §

6301). See Statement of Material Facts, ECF No. 47, at ¶¶ 24-25.

For his part, Defendant testified that

[D.M.] made a statement -- or she filed a complaint with us that seemed reasonably

believable through my training and experience. A year after this stopped happening,

she came forward. I believed that she was telling the truth. I wholeheartedly

believed her…. The statements she made were criminal in nature, and I believed

her. And those statements were heinous, what she was saying. And like I said, if a

victim of crime comes into the barracks and states a crime has been committed

against her, we do a level of interviewing. And I talked to her, and I watched body

language. I watched how she communicates to me what happened. I’ve interviewed

many people that I didn’t believe, but this case, [D.M.], I did believe her.

Defendant Dep., ECF No. 48-4, at 14-15. Plaintiff claims that the interview was in itself

insufficient to establish probable cause to proceed with charges. But the Third Circuit has ruled

that “statements of a victim witness are typically sufficient to establish probable cause in the

absence of ‘[i]ndependent exculpatory evidence or substantial evidence of [a] witness’s own

unreliability.’” Dempsey v. Bucknell Univ., 834 F.3d 457, 477–78 (3d Cir. 2016), citing Wilson,

212 F.3d at 790. Further, in the “context of sexual assault, the Third Circuit has repeatedly held

that a victim’s account of a sexual assault is sufficient as a matter of law to establish probable

cause.” Carson v. Aurand, 837 F. App’x 121, 123 (3d Cir. 2020) (sex offense prosecution in which

defendant acquitted of all charges had probable cause though based solely on victim statement).

Plaintiff alleges that Defendant “purposefully omitted from his Investigative Report that

the alleged victim appeared at the Barracks . . . with the specific intent to recant her story.” ECF

No. 57. We agree that there may have been confusion about the definition of “recant;” however,

it may well be, as Defendant surmised, that D.M. was anxious about the practical repercussions of

going through with allegations against her stepfather, such as instability in housing and financial

support. More importantly, the record shows that D.M. never recanted and did not say that the

events as she had described them to Defendant had not taken place. Swan, in her deposition, when

asked “Did she [D.M.] ever tell you that this never happened” “I’m making it up?” stated, “She

did not. She still has not.” Swan confirmed with the next question, “. . . . Has she ever told you

that she was making this up?,” and Swan shook her head no. Swan Dep., ECF No. 48-5, at 43:12-

22. Plaintiff has also conceded that he never heard D.M. “recant” or state that the allegations were

untrue. Plaintiff Dep., ECF No. 48-6, at 24:7-20. In short, the record on summary judgment lacks

evidence to show that D.M. ever indicated to Defendant that she repudiated her claims and, thus,

her credibility as a witness was not undermined and the record is void of independent exculpatory

evidence sufficient to outweigh the probable cause previously established.4

4 See Collick v. William Paterson Univ., No. 21-2281, 2022 WL 14002177, at *5 (3d Cir. Oct. 24,

2022) (court considered “[i]ndependent exculpatory evidence,” questioning reliability of first-hand

sexual assault testimony, concluding that witness was reliable, and exculpatory evidence “does not

outweigh probable cause previously established.”). The Court of Appeals for the Third Circuit has

explained that,

[i]n determining whether there was probable cause to arrest Plaintiffs-

Appellants for aggravated sexual assault in the first degree, we must also

consider whether there is “[i]ndependent exculpatory evidence or substantial

evidence of [M.M’s] own unreliability that outweighs the probable cause

otherwise established.” Plaintiff’s-Appellants contend that the District Court

improperly disregarded several pieces of exculpatory evidence going to the

issue of consent: (1) M.M’s prior sexual relationship with Collick; (2)

M.M.’s statement regarding Collick’s sexual performance during the assault

(“Oh, I see you have stage fright.”); (3) M.M.’s “suggestion to [Nurse Hatt]

that she not only walked willingly to her room with Williams, … Scott, and

Walt, but that she consented to sexual acts in her room with both Williams

and Walt”; and (4) the absence of injuries of M.M.’s body. This alleged

The critical inquiry remains whether the record establishes that when Defendant filed the

charges leading to Plaintiff’s arrest, the facts within Defendant’s knowledge led to his reasonable

belief that there was a fair probability that Plaintiff had committed these offenses. We conclude

that he had that reasonable belief. The objective facts as they then existed gave rise to probable

cause to believe that Plaintiff had committed the offenses with which he was charged. What is

more, the Court finds that a reasonable jury could not find otherwise. In this context, we note

Plaintiff’s contention that in section 1983 actions, probable cause is a question of fact exclusively

reserved to the jury, branding this Court’s inquiry into the matter illegitimate. Quite the contrary,

the Third Circuit has addressed the matter as follows: “In general, the question of probable cause

in a section 1983 damages suit is a question of fact for the jury, unless there is only one reasonable

determination possible.” Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998) (emphasis

supplied); Ingram v. Lupas, 353 F. App’x. 674, 677-78 (3d Cir. 2009). In this context “summary

judgment is only appropriate if ‘a reasonable jury could not find a lack of probable cause.’”

Dempsey v. Bucknell Univ., 834 F.3d 457, 467 (3d Cir. 2016) (quoting Montgomery, 159 F.3d at

exculpatory evidence does not outweigh the probable cause previously

established.

In his responsive concise statement of material facts, Plaintiff adduces additional material facts.

Of these, the Court finds the following are not exculpatory or material to whether probable cause

was established: that Defendant lacked training in sex offenses and that he failed to ask D.M. or

Swan about D.M.’s delay in lodging a complaint; that Defendant was inexperienced in the

investigation and filing of sex offenses; that D.M. did not make a prompt complaint; that upon

hearing D.M.’s testimony, Defendant was emotional, sad, and called Plaintiff “a monster,” that

Defendant did not verify the mother’s presence in the home during assaults; that Defendant did

not search the title to a boat on which first assault was alleged to have taken place; that Defendant

did not investigate D.M.’s biological father; that Defendant did not search D.M.’s social media

accounts; and that Defendant “ignored” that Swan did not believe her daughter. (This last fact is

partly disputed by Defendant, who states that he interpreted Swan as saying that the situation was

“unbelievable.”) Whether D.M. recanted upon her second visit to Belle Vernon State Police

Station was discussed supra.

124. As we do here, “a district court may conclude that probable cause did exist as a matter of

law if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary

factual finding, and may enter summary judgment accordingly.” Estate of Smith v. Marasco, 318

F.3d 497, 514 (3d Cir. 2003) (internal quotation and citation omitted).

(2) Malice or purpose other than bringing the plaintiff to justice

To prevail on a malicious prosecution claim under section 1983, Plaintiff must also

establish that Defendant acted with “malice.” McKenna 582 F.3d 447, 461 (3d Cir. 2009). This

Court has defined malice as follows: “Malice” exists when a defendant acts on the basis of “hatred

or ill will,” or where his or her actions “evidence a ‘reckless and oppressive disregard [for] the

plaintiff’s rights.” Ansell v. Ross Twp., No. 09-CV-1398, 2012 WL 1038825, at *24 (W.D. Pa.

Mar. 28, 2012), citing Doherty v. Haverford Township, 513 F.Supp.2d 399, 409 (E.D. Pa.2007)

(additional citations omitted). Other than Plaintiff referring to Defendant’s feeling emotional and

sad upon hearing D.M.’s testimony and Defendant having called Plaintiff “a monster” as evidence

of malice, he does not direct our attention to any material evidence, and we are unaware of any

such evidence. For example, the record contains nothing to suggest that Plaintiff had any personal

animus toward Defendant or had met Defendant prior to having heard D.M.’s report of his

wrongdoing. Defendant Dep., ECF No. 48-4, at 11- 12. Defendant happened to be on duty at the

Belle Vernon State Police Station when D.M. made her report, Defendant Dep., ECF No. 48-4, at

14-15, and at Plaintiff’s deposition, tending to prove Defendant’s point, Plaintiff testified that he

did not “know of any other reason other than [D.M.’s] allegations why [Defendant] Trooper

Ziegler would have filed the charges.” Plaintiff Dep., ECF No. 48-6, at 28. Even if Plaintiff had,

for the sake of argument, brought forth material evidence of malice, he fails to explain how that

malice induced Defendant to bring charges against him for a purpose other than justice. In this

case, the record does not support a finding of malice. See Ansell v. Ross Twp., No. 09CV1398,

2012 WL 1038825, at *24 (W.D. Pa. Mar. 28, 2012) (at times, malice can be inferred from an

officer’s decision to initiate criminal charges without probable cause.) In sum, Plaintiff can

neither establish that probable cause was lacking, nor that Defendant acted with malice. For then,

Defendant is entitled to summary judgment with respect to Plaintiff’s malicious prosecution claim.

B. Reckless Investigation in Violation of the Fourth Amendment (Count II)

Plaintiff states that his rights under the Fourth Amendment were violated because

Defendant chose not to investigate various matters, including, but not limited to, the ownership of

the boat, D.M.’s biological father’s background, D.M.’s social media accounts.5 Even if

Defendant could show the existence of material facts demonstrating reckless investigation, he

would still fail to show a section 1983 violation. The constitutional right to be free from a reckless

investigation was not clearly established in May 2017, the relevant time, as required to overcome

qualified immunity. Harvard v. Cesnalis, 973 F.3d 190, 207 (3d Cir. 2020) (Even if Harvard had

brought the reckless investigation claim under the Fourth Amendment, the officers would still be

given qualified immunity because this right was not clearly established at the time of the

investigation.).

As to this claim, Defendant also asserts that it is time-barred, while Plaintiff counters that

it is not. We address that statute of limitations issue first and then Defendant’s claim of qualified

immunity.

5 Plaintiff first based his claim of reckless investigation upon the Fifth and Fourteenth

Amendments. This Court dismissed this claim in the original Complaint without prejudice, noting

that even if a reckless investigation claim existed, it was grounded in the Fourth Amendment, ECF

No. 19. Plaintiff then filed the Amended Complaint grounding this claim in the Fourth

Amendment. ECF No. 23.

(1) Statute of Limitations

The Supreme Court has held that:

Section 1983 provides a federal cause of action, but in several respects relevant

here federal law looks to the law of the State in which the cause of action arose.

This is so for the length of the statute of limitations: It is that which the State

provides for personal-injury torts. Owens v. Okure, 488 U.S. 235, 249–250 (1989)

(additional citations omitted).

Wallace v. Kato, 549 U.S. 384 (2007) The parties here agree that under Pennsylvania law, the

limitations period is two years. The parties disagree, however, as to when the claim of reckless

investigation accrued. Defendants assert that a reckless investigation claim would be barred by

the statute of limitations because it would have accrued in May 2017 when the charges were filed,

or possibly at the latest, in September 2019 at the end of the criminal trial, but the claim was not

asserted until the initial complaint in September 2021. Plaintiff counters that the claim is timely

because it accrued only in February 2020 with the entry of a nolle prosse in the criminal

prosecution.

In fact, “the limitations period begins to run from the time when the plaintiff knows or has

reason to know of the injury which is the basis of the section 1983 action.” Montgomery v.

DeSimone, 159 F.3d at 126 (3d Cir. 1998) (quoting Genty v. Resolution Tr. Corp., 937 F.2d 899,

919 (3d Cir. 1991)), “even though the full extent of the injury is not then known or predictable.’

Wallace, 549 U.S. at 391 (citations omitted); Hill-Johnson v. Catanzaro, No. CV 19-30, 2020 WL

6110847, at *3 (W.D. Pa. Aug. 20, 2020). Plaintiff offers the February 2020 nolle prosse date as

the accrual date, that date being fewer than two years before the complaint was filed. But Plaintiff

has not correspondingly brought to our attention, nor are we aware of, cases that rely on the nolle

prosse for commencement of the statute of limitations. Common sense dictates that Plaintiff

would have known well before the February 2020 nolle prosse date the parameters of Defendant’s

investigation. We conclude, therefore, that the latest that the statute of limitations on Plaintiff’s

section 1983 claim began to run was at the end of the criminal trial on September 11, 2019, when

he would have known the extent of the investigation. Since more than two years elapsed between

that date and filing of the reckless investigation claim, that claim is time barred.

(2) Qualified Immunity

Plaintiff’s claim of reckless investigation fails, independently, because Defendant is

entitled to qualified immunity. Qualified immunity provides that “government officials

performing discretionary functions ... are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity

is thus an affirmative defense, making the government actor immune from suit where facts alleged

or shown by a plaintiff make out violation of constitutional right, and where “that right was clearly

established at time of defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223 (2009)

(emphasis supplied).

Against Defendant’s invocation of qualified immunity, Plaintiff offers nothing in the way

of legal support. Rather, he states that the essence of the claim is the same as that in malicious

prosecution, the lack of probable cause, and this, Plaintiff says, was clearly established at the

relevant time. We have, however, determined above that there was probable cause. We determine

now that Defendant is entitled to qualified immunity as to a reckless investigation claim under the

Fourth Amendment because, as explained supra, Plaintiff has not made out a violation of a

constitutional right.

IV. Conclusion

For the reasons set forth above, Defendant is entitled to summary judgment on all

remaining claims. Consequently, Defendant’s motion for summary judgment will be granted. An

appropriate order will follow.

Dated: March 29, 2024.

BY THE COURT:

/s/ Kezia O. L. Taylor

Kezia O. L. Taylor

United States Magistrate Judge

cc: All Counsel of Record

Via Electronic Mail