Battle v. Marchese

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JEREMY H. BATTLE, ) CIVIL NO. 3:23-CV-00666

Plaintiff )

) (MUNLEY, D.J.)

v. )

) (ARBUCKLE, M.J.)

SALVATORE MARCHESE, et al., )

Defendants )

REPORT AND RECOMMENDATION

I. INTRODUCTION

Plaintiff Jeremy H. Battle sues three Police Officers, alleging numerous

violations of his constitutional rights pursuant to 42 U.S.C. § 1983. These claims

stem from an incident where Officers found Plaintiff experiencing a narcotics

overdose and the resulting aftermath.

II. BACKGROUND AND PROCEDURAL HISTORY

This pro se, in forma pauperis action began on April 21, 2023, when Plaintiff

lodged his Complaint. (Doc. 1). On the same day, Plaintiff filed a Motion to Proceed

in forma pauperis, (Doc. 2), which the Court granted on April 27, 2023, (Doc. 7).

On July 18, 2023, the Court screened Plaintiff’s Complaint pursuant to 28 U.S.C.

§ 1915(e), finding that it failed to state a claim upon which relief could be granted,

and gave Plaintiff leave to file an amended complaint. (Doc. 10). On August 18,

2023, Plaintiff filed his Amended Complaint. (Doc. 11).

The Amended Complaint was served, and on December 5, 2023, Defendants

filed a Motion to Dismiss. (Doc. 27). On March 11, 2025, the undersigned issued a

Report and Recommendation recommending that Defendants’ Motion to Dismiss be

granted but that Plaintiff be given leave to file a motion to amend. (Doc. 43). On

April 4, 2025, Judge Munley issued an Order adopting the Report and

Recommendation in part, granting Defendants’ Motion and granting Plaintiff leave

to file a second amended complaint. (Doc. 44).

On April 28, 2025, Plaintiff filed a Second Amended Complaint. (“SAC”).

(Doc. 45). On April 29, 2025, Judge Munley referred the case back to the

undersigned for preliminary screening and issuance of a report and recommendation.

Plaintiff names as Defendants Linsay Zarick and Daniel Kapacs, Dunmore

Police Officers. (Doc. 45, p. 1). Although Plaintiff does not specifically reference

Salvatore Marchese, the Dunmore Chief of Police, as a Defendant, given his pro se

status, naming of Marchese as a Defendant previously, and assertion of a claim based

on Marchese’s conduct, we will construe the SAC as naming him a Defendant.

Plaintiff alleges that on October 14, 2020, Zarick found him in a car speaking

incoherently. (Doc. 45, p. 1). While Plaintiff was still in the vehicle, Zarick patted

him down and requested EMS. Id. Before EMS arrived, Zarick and Kapacs pulled

Plaintiff from the car and set him on the pavement. Id. Zarick then went to the patrol

car and retrieved an EpiPen. Id. Zarick asked Kapacs if he knew how to administer

the EpiPen and Kapacs took it from Zarick, rolled Plaintiff onto his side, and

administered the EpiPen on Plaintiff’s side, causing the liquid inside the EpiPen to

be injected into Plaintiff’s right lung. Id.

Plaintiff then began to experience sharp pain and began vomiting and seizing,

and eventually passed out. (Doc. 45, p. 2). When Plaintiff regained consciousness,

he was still vomiting and was rolled on his back by Kapacs and Zarick, causing him

to aspirate and eventually contract aspiration pneumonia. Id. Plaintiff alleges that

Kapacs and Zarick’s lack of training was grossly negligent and that they should have

been trained to know the signs of an overdose as part of their training. Id.

EMS then arrived on scene and asked Kapacs and Zarick whether they had

rendered any medical aid to Plaintiff, and they lied and denied doing so. (Doc. 45,

p. 2). Plaintiff alleges this shows a lack of training and that this conduct denied him

proper medical care. Id. While still under the care of EMS, Plaintiff alleges Kapacs

began an illegal search and seizure of Plaintiff, turning off his body camera to hide

his actions which included a search of Plaintiff’s genitalia. Id. Plaintiff alleges he

had no reasonable expectation he could leave the area because he was strapped down

in an ambulance at the time of the search and that he could not consent because of

his medical emergency. (Doc. 45, p. 3).

Once Plaintiff arrived at the hospital, he was in a coma for approximately

three days as a result of the improper use of the EpiPen. (Doc. 45, p. 3). Plaintiff

woke from the coma on October 17, 2020 and was told of his injuries, including a

collapsed lung and aspiration pneumonia, and that he could not leave because he had

been arrested by Kapacs and Zarick. Id. He was also informed his belongings were

seized. Id. Plaintiff attempted to leave the hospital but was arrested by Scranton

Police who filed charges for his attempting to leave the hospital. Id.

Plaintiff alleges that Defendants did not have probable cause to arrest him

because he was suffering a medical condition at the time of the arrest. (Doc. 45, p.

3). At some point Plaintiff was apparently taken to the Lackawanna County Prison

where he remained for months. (Doc. 45, p. 4). Once released, Plaintiff when to the

Dunmore Police Station to retrieve his property and file a complaint against Kapacs

and Zarick. Id.

At the Station he was greeted by Marchese, who denied Kapacs and Zarick’s

actions and would not provide Plaintiff with their information. (Doc. 45, p. 4).

Plaintiff alleges Marchese then ordered him to leave. Id.

III. LEGAL STANDARDS

A. STATUTORY SCREENING OBLIGATION UNDER 28 U.S.C. § 1915(E)

This Court has a statutory obligation to conduct a preliminary review of pro

se complaints brought by litigants given leave to proceed in forma pauperis.

Specifically, the Court is obliged to review the complaint in accordance with 28

U.S.C. § 1915(e)(2), which provides, in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may

have been paid, the court shall dismiss the case at any time if the court

determines that –

(A) the allegation of poverty is untrue; or

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is

immune from such relief.

When conducting this screening analysis, district courts apply the standard

governing motions to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure.1 At this early stage of the litigation, the district court must: “accept

the facts alleged in [a plaintiff’s] complaint as true,” “draw[ ] all reasonable

inferences in [their] favor,” and “ask only whether [that] complaint, liberally

construed, . . . contains facts sufficient to state a plausible . . . claim.”2 A court need

not “credit a complaint’s ‘bald assertions’ or ‘legal conclusions,’”3 and does not need

1 See e.g., Endrikat v. Ransom, No. 1:21-CV-1684, 2022 WL 4111861, at *2

(M.D. Pa. Sept. 8, 2022) (“In dismissing claims under §§ 1915(e), 1915A, and

1997e, district courts apply the standard governing motions to dismiss filed pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure.”).

2 Shorter v. United States, 12 F. 4th 366, 374 (3d Cir. 2021) (quoting Perez v.

Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)).

3 Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal

quotation marks omitted).

to assume that a plaintiff can prove facts not alleged.4

In considering a motion to dismiss and in screening complaints under 28

U.S.C. § 1915(e), the court generally relies on the complaint, attached exhibits, and

matters of public record.5 At the motion to dismiss stage, the court accepts the

complaint’s factual allegations as true, but the court does not accept a plaintiff’s

legal conclusions.6 In addition, “[d]etermining whether a complaint states a plausible

claim for relief” is “a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.”7

The federal pleading standard just described requires that district courts

conduct the following analysis when addressing a motion to dismiss a complaint:

First, the factual and legal elements of a claim should be separated. The

District Court must accept all of the complaint’s well-pleaded facts as

true, but may disregard any legal conclusions. [Iqbal, 129 S.Ct. at

1949]. Second, a District Court must then determine whether the facts

alleged in the complaint are sufficient to show that the plaintiff has a

“plausible claim for relief.” Id. at 1950. In other words, a complaint

must do more than allege the plaintiff’s entitlement to relief. A

complaint has to “show” such an entitlement with its facts. See Phillips[

v. Cnty. Of Allegheny, 515 F.3d 224, 234–35 (3d Cir. 2008)].8

4 Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459

U.S. 519, 526 (1983).

5 Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).

6 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a court must

accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.”).

7 Id. at 679.

8 Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009).

A pro se litigant, however, is entitled to have their complaint liberally

construed. This requires that we hold the complaint to a less stringent standard than

a pleading drafted by a licensed attorney.9 “Liberal construction of pro se pleadings

means paying attention to what the litigant has alleged and using common sense.”10

The Court may “apply the relevant legal principle even when the complaint has

failed to name it,” but cannot supply what plaintiff has not alleged or imagine that

unpleaded facts exist.11

B. CIVIL RIGHTS CLAIMS BROUGHT PURSUANT TO 42 U.S.C. § 1983

“Section 1983 imposes civil liability upon any person who, acting under the

color of state law, deprives another individual of any rights, privileges, or

immunities secured by the Constitution or laws of the United States.”12 “It is well

settled that § 1983 does not confer any substantive rights, but merely ‘provides a

method for vindicating federal rights elsewhere conferred.’”13 To prove a claim

under § 1983, a plaintiff must establish: (1) a deprivation of a federally protected

9 Erickson v. Pardus, 551 U.S. 89, 94 (2007).

10 Gindraw v. Sanford, No. 3:24-CV-65-KAP, 2024 WL 3179781, at *2 (W.D.

Pa. June 26, 2024).

11 Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (quoting Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)); Gindraw, 2024 WL 3179781,

at *2.

12 Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005) (citing

Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000)).

13 Williams v. Pa. Hum. Rel. Comm’n, 870 F.3d 294, 297 (3d Cir. 2017)

(quoting Hildebrand v. Allegheny Cnty., 757 F.3d 99, 104 (3d Cir. 2014)).

right; and (2) that the deprivation was committed by a person or persons acting under

color of state law.14

IV. DISCUSSION

A. PLAINTIFF’S CLAIMS

We interpret Plaintiff’s SAC as asserting 8 claims under 42 U.S.C. § 1983:

(1) A First Amendment retaliation claim;

(2) A Fourth Amendment unreasonable search claim;

(3) A Fourth Amendment false arrest claim for his arrest on October 14,

2020;

(4) A Fourth Amendment malicious prosecution claim;

(5) A Fourteenth Amendment procedural due process claim;

(6) A Fourteenth Amendment substantive due process claim;

(7) A Fourteenth Amendment equal protection claim; and

(8) A Monell claim for failure to train.

(Doc. 45). Plaintiff brings his claims against Defendants in both their individual and

official capacities.

14 Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quoting

Lake v. Arnold, 112 F.3d 682, 689 (3d Cir. 1997)).

B. PLAINTIFF’S FOURTH AMENDMENT UNREASONABLE SEARCH AND

FOURTEENTH AMENDMENT SUBSTANTIVE DUE PROCESS CLAIMS ARE

BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS

“[T]he length of the statute of limitations for a § 1983 claim is governed by

the personal injury tort law of the state where the cause of action arose.”15 Plaintiff’s

claims arose in Pennsylvania. Pennsylvania has a two-year statute of limitations for

personal injury caused by tortious conduct, meaning the statute of limitations for a

§ 1983 claim that arose in Pennsylvania is two years.16 However, “[f]ederal law, not

state law, determines when a limitations period begins to run. Under federal law, the

statute of limitations runs from the moment that a claim accrues. And a claim accrues

when the last act needed to complete the tort occurs.”17

“When screening a complaint under section 1915, a district court may sua

sponte dismiss the complaint as untimely under the statute of limitations where the

defense is obvious from the complaint and no development of the factual record is

required.”18

Plaintiff’s unreasonable search claim is untimely. Plaintiff pleads that Kapacs

illegally searched him while he was being treated by EMS on October 14, 2020, with

15 Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (citing Wallace v. Kato,

549 U.S. 384, 387 (2007)).

16 42 Pa. C.S. § 5524.

17 Nguyen v. Pennsylvania, 906 F.3d 271, 273 (3d Cir. 2018) (internal citations

omitted).

18 Brown v. Buck, 614 F. App’x 590, 592 (3d Cir. 2015).

Kapacs turning off his body camera to hide his illegal search. (Doc. 45, pp. 2-3).

Plaintiff’s SAC indicates that Plaintiff knew about the search at the time it was

occurring, stating that he did not have a reasonable belief he could leave the area

because he was having a medical emergency. (Doc. 45, p. 3). Under federal law, a

claim for an unreasonable search accrues at “the moment of the search.”19 Here,

Plaintiff specifically pleads and it is thus evident from the face of the SAC that the

search occurred on October 14, 2020. October 14, 2020 is therefore the date this

claim accrued and the statute of limitations began running. Plaintiff had two years

from October 14, 2020 to file his claims. Plaintiff filed his Complaint on April 21,

2023, over six months after the statute of limitations ran, and so his unreasonable

search claim is untimely. Accordingly, we will recommend this claim be dismissed.

Plaintiff’s substantive due process claim is also untimely. While the contours

of Plaintiff’s substantive due process claim are murky, we construe Plaintiff as

alleging Kapacs and Zarick violated his substantive due process right when they lied

by denying they provided any care to Plaintiff when asked by EMS. (Doc. 45, p. 2).

Plaintiff alleges this behavior was “conscious shocking[.]’ Id. “To establish a

substantive due process claim, a plaintiff must prove [1] the particular interest at

issue is protected by the substantive due process clause and [2] the government’s

19 Nguyen, 906 F.3d at 273.

deprivation of that protected interest shocks the conscience.”20 Plaintiff’s SAC

alleges that Kapacs and Zarick’s act of lying occurred on October 14, 2020, and that

act of lying deprived him of an interest protected by the substantive due process

clause. Id. Accordingly, Kapacs and Zarick completed the last act necessary to

deprive Plaintiff of his substantive due process right on October 14, 2020, and so his

substantive due process claim accrued on that date and the statute of limitations

began to run.21 Plaintiff therefore had two years from October 14, 2020 to bring his

substantive due process claim. Again, Plaintiff filed his Complaint on April 21,

2023, more than six months too late, and accordingly it is evident on the face of the

SAC his substantive due process claim is untimely. Therefore, we will recommend

this claim be dismissed.

C. PLAINTIFF’S FOURTH AMENDMENT FALSE ARREST CLAIM

Plaintiff brings a false arrest claim, alleging that “Defendants did not have

probable cause” to arrest him. (Doc. 24, p. 3). Plaintiff alleges he was arrested by

Kapacs and Zarick on October 14, 2020, and arrested again when he tried to leave

the hospital on October 17, 2020, by the Scranton Police. (Doc. 45, p. 3).

Immediately after discussing his arrest by Scranton Police, Plaintiff writes that “the

20 Hazzouri v. W. Pittston Borough, 416 F.Supp.3d 405, 416 (M.D. Pa. 2019)

(quoting Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd Of Educ., 587 F.3d

176, 190 (3d Cir. 2009) (quoting Chainey v. Street, 523 F.3d 200, 219 (3d Cir.

2008))) (internal quotation marks omitted) (alternation in original).

21 Nguyen, 906 F.3d at 273 (internal citations omitted).

Defendants did not have probable cause as Plaintiff was suffering a medical

condition at the time of his arrest” and “[t]his action resulted in the Plaintiff’s arrest,

which Plaintiff contends is a False Arrest Action[.]” (Doc. 45, pp. 3-4). It is unclear

whether Plaintiff’s false arrest claim is related to the October 14, 2020, arrest or the

October 17, 2020, arrest. This confusion alone is sufficient to dismiss Plaintiff’s

false arrest claim as it leaves both the Court and Defendants guessing what actions

Plaintiff believes give rise to his false arrest claim.22 However, because Plaintiff

references Defendants when discussing whether there was probable cause, we

construe the SAC as asserting a false arrest claim related to his October 14, 2020

arrest.

“To bring a claim for false arrest, a plaintiff must establish (1) that there was

an arrest; and (2) that the arrest was made without probable cause.”23 In the SAC,

Plaintiff baldly alleges that “Defendants did not have probable cause, as Plaintiff

was suffering a medical condition at the time of his arrest.” (Doc. 45, p. 3). This is a

legal conclusion that we need not, and do not, credit.24 The fact that Plaintiff was

suffering from a medical condition, even a medical emergency, at the time of his

arrest does not mean, by itself, that Kapacs or Zarick lacked probable cause to arrest

22 Binsack v. Lackawanna Cnty. Prison, 438 F. App’x 158, 160 (3d Cir. 2011).

23 Harvard v. Cesnalis, 973 F.3d 190, 199 (3d Cir. 2020) (quoting James v.

City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012)) (internal quotation marks

omitted).

24 Morse, 132 F.3d at 906.

him. Plaintiff pleads no other facts from which we can infer Kapacs and Zarick

lacked probable cause to arrest him. Thus, we will recommend his false arrest claim

be dismissed.

D. PLAINTIFF’S FOURTH AMENDMENT MALICIOUS PROSECUTION

CLAIM

Plaintiff also purports to bring a claim for malicious prosecution against

Defendants Kapacs and Zarick. Initially, as with Plaintiff’s false arrest claim, it is

unclear which charges Plaintiff believes underlies his malicious prosecution claim.

Again, Plaintiff alleges that he was arrested by Kapacs and Zarick on October 14,

2020, and was then arrested again when he tried to leave the hospital on October 17,

2020, by the Scranton Police. (Doc. 45, p. 3). Immediately after discussing his arrest

by Scranton Police, Plaintiff writes that “the Defendants did not have probable cause

as Plaintiff was suffering a medical condition at the time of his arrest” and “[t]his

action resulted in the Plaintiff’s arrest, which Plaintiff contends is a False Arrest

Action, which thereby resulted in malicious prosecution of the Plaintiff in further

violation of Plaintiff’s rights.” (Doc. 3, pp. 3-4). It is unclear whether Plaintiff’s

malicious prosecution claim is related to the charges stemming from his October 14,

2020, arrest or his October 17, 2020, arrest. As with his false arrest claim, this

confusion alone is sufficient to dismiss Plaintiff’s malicious prosecution claim for

failure to state a claim as it leaves both the Court and Defendants guessing what

actions Plaintiff believes give rise to a malicious prosecution claim.25 Again,

however, because Plaintiff references Defendants we construe the SAC as asserting

a malicious prosecution claim related to the charges stemming from his October 14,

2020 arrest.

Plaintiff has failed to plead facts suggesting discovery would reveal evidence

of all necessary elements of a malicious prosecution claim.

A plaintiff asserting a malicious prosecution claim must establish that

“(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.26

In establishing the second element, in Thompson v. Clark, the Supreme Court held a

plaintiff need not show “the criminal prosecution ended with some affirmative

indication of innocence,” only that it did not end with a conviction.27 For the second

element a Plaintiff may also show that his conviction was invalidated within the

meaning of Heck.28 As to the fifth element, “the alleged seizure must occur as a result

25 Binsack, 438 F. App’x at 160.

26 Wenhold v. Gaglione, No. 23-CV-1513, 2024 WL 776700, at *6 (E.D. Pa.

Feb. 26, 2024) (quoting McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d

Cir. 2009)) (internal quotation marks omitted).

27 Thompson v. Clark, 596 U.S. 36, 49 (2022).

28 McDonough v. Smith, 588 U.S. 109, 119-20 (2019).

of the malicious prosecution, and thus, it must occur chronologically after the

pressing of charges.”29

After amending for a second time, Plaintiff’s attempt to state a malicious

prosecution claim remains fundamentally flawed. Plaintiff has again failed to plead

that any relevant criminal prosecution ended in his favor or that any relevant

conviction was invalidated in his SAC. Nor does anything pleaded in the SAC give

the Court the ability to reasonably infer he could make such a showing. Plaintiff does

not provide any information concerning the status of his relevant criminal case.

Therefore, we find that Plaintiff has not stated a malicious prosecution claim and

will accordingly recommend this claim be dismissed.

E. PLAINTIFF’S FIRST AMENDMENT RETALIATION CLAIM

Plaintiff alleges that Marchese denied him his First Amendment right when

he ordered Plaintiff to leave the Dunmore Police Station after asking for Kapacs and

Zarick’s information. (Doc. 45, p. 4). The nature of Plaintiff’s First Amendment

claim is not particularly clear from the SAC. Construing Plaintiff’s SAC liberally,

we believe Plaintiff is attempting to assert a claim for retaliation.

[T]o state a claim of retaliation under the First Amendment, a plaintiff

must show: “(1) that [he] engaged in a protected activity, (2) that

defendant[’]s retaliatory action was sufficient to deter a person of

ordinary firmness from exercising his or her rights, and (3) that there

29 Basile v. Twp. of Smith, 752 F.Supp.2d. 643, 659 (W.D. Pa. 2010).

was a causal connection between the protected activity and the

retaliatory action.”30

As best the Court can make out, Plaintiff is alleging his protected activity was asking

for Kapacs and Zarick’s information and that the retaliatory action was Marchese’s

order to leave the Police Station. It appears that Plaintiff is alleging that the order

was harassing or threatening, as Plaintiff alleges that such no reasonable person

would ignore such an order. “It is well-settled, [] that verbal harassment or threats,

even if acted upon, do not constitute adverse action for purposes of establishing a

First Amendment retaliation claim.”31 Accordingly, as Plaintiff is asserts that

Marchese threatened or harassed him into leaving the Police Station, Plaintiff fails

to state a claim and we will recommend its dismissal.

F. PLAINTIFF’S FOURTEENTH AMENDMENT PROCEDURAL DUE PROCESS

CLAIM

Plaintiff also purports to bring a procedural due process claim, but we are

unable to make out such a claim in the SAC. Plaintiff asserts,

The officers behavior [in lying to EMS about not rendering Plaintiff

any medical aid] was unprofessional, egregious and blatantly

outrageous conduct, which is conscience shocking in itself and devoid

of proper procedure and shows that there was no training in the correct

30 Payne v. Stanbaugh, No. 1:22-CV-2063, 2025 WL 287243, at *4 (M.D. Pa.

Jan. 6, 2025), report and recommendation adopted, No. 1:22-CV-2063, 2025 WL

285330 (M.D. Pa. Jan. 23, 2025) (quoting McAndrew v. Bucks Cnty. Bd. of Comm’rs,

183 F.Supp.3d 713, 737 (E.D. Pa. 2016)) (internal quotation marks omitted)

(alternations in original).

31 Muhammad v. Brown, No. 4:23-CV-212, 2024 WL 3540991, at *4 (M.D.

Pa. July 25, 2024) (collecting cases).

procedure when assessing a person who is in medical

distress/over[dose] possibility.

Their conduct denied Plaintiff of proper care and thereby violated the

rights of the Plaintiff under the 14th Amendment, which includes

substantive and procedural due process right and includes the rights of

Life, Liberty, and the pursuit of happiness, all of which have been

infringed or endangered by the actions of the defendants in this case.

(Doc. 45, p. 2).

“To state a claim under § 1983 for deprivation of procedural due process

rights, a plaintiff must allege that (1) he was deprived of an individual interest that

is encompassed within the Fourteenth Amendment’s protection of life, liberty, or

property, and (2) the procedures available to him did not provide due process of

law.”32 “Procedural due process requires that individuals receive the opportunity to

be heard at a meaningful time and in a meaningful manner when they are impacted

by government action.”33 Here, Plaintiff has not alleged what specific interest

encompassed within the Fourteenth Amendment’s protection of life, liberty or

property he was deprived of. Instead, he simply concludes that Kapacs and Zarick’s

conduct violated his Fourteenth Amendment procedural due process right and notes

that those rights “include[] the rights of Life, Liberty and the pursuit of happiness[.]”

32 King v. City of Phila., 654 F. App’x 107, 111 (3d Cir. 2016) (quoting Hill

v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006)).

33 Halchak v. Dorrance Twp. Bd. of Supervisors, 646 F.Supp.3d 571, 593

(M.D. Pa. 2022) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)) (internal

quotation marks omitted).

(Doc. 45, p. 2). This is merely a recitation of one of the elements of a procedural due

process claim. Such a recitation is legally insufficient to state a claim.34 Stating a

procedural due process claim requires a specific identification of the interest Plaintiff

was deprived of, not just a generic statement that he was deprived of an interest. The

SAC leaves the Court and Defendants to guess what specific interest he was deprived

of, and so Plaintiff fails to state a procedural due process claim. Accordingly, we

will recommend Plaintiff’s Fourteenth Amendment procedural due process claim be

dismissed.

G. PLAINTIFF’S FOURTEENTH AMENDMENT EQUAL PROTECTION CLAIM

Plaintiff attempts to assert an equal protection claim, alleging that

“Defendants further violated the 14th Amendment by not granting Equal Protection

to the Plaintiff, there was no reasonable basis for the officers [sic] actions and not

protecting the rights and health of Plaintiff in this case.” (Doc. 45, p. 4). “A plaintiff

states a valid equal protection claim when he is either (i) a member of a protected

class and was treated differently from members of an unprotected class, or (ii) he

belongs to a “class of one” and was treated differently from others similarly situated

without any rational basis for the difference in treatment.”35 “When, as here, a

plaintiff does not allege that a contested distinction is based on protected

34 Iqbal, 556 U.S. at 678.

35 Echevarria v. Cnty. of Bergen, No. 23-3002 (ES) (CLW), 2025 WL 517955,

at *9 (D.N.J. Feb. 18, 2025).

classifications such as race, national origin, religion, or gender, their equal protection

claim arises under a ‘class of one’ theory subject to rational-basis review.”36

“According to that theory, a plaintiff states a claim for violation of the Equal

Protection clause when he alleges that he has been intentionally treated differently

from others similarly situated and that there is no rational basis for the difference in

treatment.”37 To be similarly situated under the Equal Protection Clause, persons

must be “alike in all relevant aspects.”38 Here, Plaintiff has provided no basis for his

equal protection claim other than to conclude Kapacs and Zarick violated his right

to equal protection. Indeed, Plaintiff does not even clearly allege that he was treated

differently than anyone, let alone differently than individuals similarly situated.

Plaintiff therefore does not state an equal protection claim and we will recommend

Plaintiff’s equal protection claim be dismissed.

H. PLAINTIFF’S MONELL CLAIM

Plaintiff also asserts a Monell claim apparently stemming from Kapacs and

Zarick’s lack of overdose awareness and medical training. If a plaintiff wishes

to recover under § 1983 from a municipality they must:

(1) identify a policy or custom that deprived [them] of a federally

36 M. Rae, Inc. v. Wolf, 509 F.Supp.3d 235, 246 (M.D. Pa. 2020).

37 Hamilton v. Bros., No. 2:24-0675, 2025 WL 489677, at *3 (W.D. Pa. Feb.

13, 2025) (quoting Hill, 455 F.3d at 239) (internal quotation marks omitted).

38 Hamilton, 2025 WL 489677, at *3 (quoting Startzell v. City of Phila., Pa.,

533 F.3d 183, 203 (3d Cir. 2008) (citation omitted)) (internal quotation marks

omitted).

protected right;

(2) demonstrate that the municipality, by its deliberate conduct, acted

as the “moving force” behind the alleged deprivation; and

(3) establish a direct causal link between the policy or custom and the

plaintiff’s injury.39

A municipality “can only be liable when the alleged constitutional transgression

implements or executes a policy, regulation or decision officially adopted by the

governing body or informally adopted by custom.”40 A policy “is a statement,

ordinance, regulation, or decision officially adopted and promulgated by a

government body’s officers.”41 A custom need not be formally adopted by the

municipality but may impose liability where “the relevant practice is so widespread

as to have the force of law.”42

In limited circumstances, a local government’s decision not to train

certain employees about their legal duty to avoid violating citizens’

rights may rise to the level of an official government policy for

purposes of § 1983. A municipality’s culpability for a deprivation of

rights is at its most tenuous where a claim turns on a failure to train. See

Oklahoma City v. Tuttle, 471 U.S. 808, 822–823 (1985) (plurality

opinion) (“[A] ‘policy’ of ‘inadequate training’ ” is “far more nebulous,

and a good deal further removed from the constitutional violation, than

was the policy in Monell ”). To satisfy the statute, a municipality’s

39 Blasi v. Borough of Pen Argyl, No. 14-1354, 2015 WL 4486717, at *5 (E.D.

Pa. July 23, 2015) (citing Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520

U.S. 397, 404 (1997)).

40 Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citing Monell

v. Soc. Servs. of City of New York, 436 U.S. 658 (1978)).

41 Beck, 89 F.3d at 971 (citing Monell, 436 U.S. at 690).

42 Bd. of Cnty. Comm’rs of Bryan Cnty., Okla., 520 U.S. at 404 (citing Monell,

436 U.S. at 690-91).

failure to train its employees in a relevant respect must amount to

“deliberate indifference to the rights of persons with whom the

[untrained employees] come into contact.” Canton, 489 U.S. at 388.

Only then “can such a shortcoming be properly thought of as a city

‘policy or custom’ that is actionable under § 1983.” Id. at 389.

“‘[D]eliberate indifference’ is a stringent standard of fault, requiring

proof that a municipal actor disregarded a known or obvious

consequence of his action.” Bryan Cnty., 520 U.S. at 410. Thus, when

city policymakers are on actual or constructive notice that a particular

omission in their training program causes city employees to violate

citizens’ constitutional rights, the city may be deemed deliberately

indifferent if the policymakers choose to retain that program. Id. at 407.

The city’s “ ‘policy of inaction’ ” in light of notice that its program will

cause constitutional violations “is the functional equivalent of a

decision by the city itself to violate the Constitution.” Canton, 489 U.S.,

at 395 (O’Connor, J., concurring in part and dissenting in part). A less

stringent standard of fault for a failure-to-train claim “would result in

de facto respondeat superior liability on municipalities . . . .” Id. at 392,;

see also Pembaur, supra, at 483 (opinion of Brennan, J.) (“[M]unicipal

liability under § 1983 attaches where–and only where–a deliberate

choice to follow a course of action is made from among various

alternatives by [the relevant] officials . . . .”).43

Further, “without an underlying constitutional violation, there can be no Monell

claim.”44

Here, Plaintiff has not stated a claim for an underlying constitutional violation.

Nor does Plaintiff plead any facts regarding a policy or custom the Dunmore Police

Department has. To the extent Plaintiff attempts to bring a Monell claim under a

43 Connick v. Thompson, 563 U.S. 51, 61-62 (2011) (cleaned up).

44 Knellinger v. York St. Prop. Dev., LP, 57 F.Supp.3d 462, 471 (E.D. Pa.

2014) (citing Customers Bank v. Mun. of Norristown, 942 F.Supp.2d 534, 546 (E.D.

Pa. 2013)).

failure to train theory, in addition to not stating an underlying constitutional

violation, he has not alleged any facts hinting at deliberate indifference as described

above. Plaintiff therefore does not state a Monell claim and we will recommend that

claim be dismissed.

V. LEAVE TO AMEND

If a civil rights complaint is subject to dismissal for failure to state a claim, “a

district court must permit a curative amendment unless such an amendment would

be inequitable or futile.”45 Here, Plaintiff has already been given leave to amend

twice and has failed to state any claims. We therefore conclude granting Plaintiff

further leave to amend would be futile. However, because it is unclear whether

Plaintiff’s malicious prosecution claim has accrued,46 we will recommend that claim

be dismissed without prejudice.

[The next page contains the Recommendation]

45 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

46 “A malicious prosecution claim is not cognizable until favorable

termination is achieved, because that is when the ‘favorable termination’ element of

the cause of action is complete.” Blake v. Maletz, No. 24-CV-6249, 2025 WL

321541, at *5 (E.D. Pa. Jan. 28, 2025). Plaintiff does not allege in the SAC if or

when the favorable termination element of his malicious prosecution claim was

complete.

VI. RECOMMENDATION

Accordingly, it is recommended that:

(1) Plaintiff’s 42 U.S.C. § 1983 claim for malicious prosecution be

DISMISSED without prejudice.

(2) Plaintiff’s 42 U.S.C. § 1983 retaliation, unreasonable search, false

arrest, procedural due process, substantive due process, equal

protection and Monell claims be DISMISSED with prejudice.

(3) The Clerk of Court be directed to mark this case CLOSED.

Date: May 27, 2025 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JEREMY H. BATTLE, ) CIVIL NO. 3:23-CV-00666

Plaintiff )

) (MUNLEY, D.J.)

v. )

) (ARBUCKLE, M.J.)

SALVATORE MARCHESE, et al., )

Defendants )

NOTICE OF LOCAL RULE 72.3

NOTICE IS HEREBY GIVEN that any party may obtain a review of the

Report and Recommendation pursuant to Local Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings,

recommendations or report addressing a motion or matter described in 28

U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a

prisoner case or a habeas corpus petition within fourteen (14) days after being

served with a copy thereof. Such party shall file with the clerk of court, and

serve on the magistrate judge and all parties, written objections which shall

specifically identify the portions of the proposed findings, recommendations

or report to which objection is made and the basis for such objections. The

briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made and may

accept, reject, or modify, in whole or in part, the findings or recommendations

made by the magistrate judge. The judge, however, need conduct a new

hearing only in his or her discretion or where required by law, and may

consider the record developed before the magistrate judge, making his or her

own determination on the basis of that record. The judge may also receive

further evidence, recall witnesses, or recommit the matter to the magistrate

judge with instructions.

Date: May 27, 2025 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge