PARKER v. GAINEY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

WILLIAM PARKER, )

)

Plaintiff, ) 2:23-CV-2102-NR

)

vs. )

)

)

EDWARD C. GAINEY, et al., )

)

Defendants. )

)

MEMORANDUM ORDER

J. Nicholas Ranjan, United States District Judge

Plaintiff William Parker attended a Juneteenth celebration in Pittsburgh in

2023. At that event, he engaged in protected First Amendment activity—specifically,

criticizing Pittsburgh Mayor, Edward Gainey, who was also present. In response,

Mr. Parker claims he was retaliated against by various city and county officials,

including with arrest and prosecution for criminal charges that were ultimately

dismissed. From these events, he brings civil-rights claims against the city and

county employees who were involved. Some of the defendants have moved to dismiss

the claims against them. For the reasons that follow, the Court grants in part and

denies in part the motion.

BACKGROUND

William Parker is a resident of Pittsburgh. ECF 43, ¶ 1. On June 17, 2023,

Mr. Parker attended a Juneteenth celebration that included a parade on Centre

Avenue. Id. at ¶¶ 21, 23. Also present were Pittsburgh Mayor Edward Gainey,

Allegheny County Councilwoman Bethany Hallam, and the following Pittsburgh City

police officers: Detective Lawrence Ferrilli, Detective Kerry Ford, Detective Michael

Gay, and Chief Larry Scirotto. Id. at ¶¶ 21-23. During the event, Mr. Parker began

verbally protesting Mayor Gainey, but Mayor Gainey ignored him. Id. at ¶¶ 24-26.

Detective Ford was working as part of Mayor Gainey’s protective detail. Id. at ¶ 33.

Detective Ford pushed Mr. Parker, causing him to lose his balance, but Mr. Parker

continued his verbal protest of Mayor Gainey. Id. at ¶¶ 34-35. Detective Gay began

to follow Mr. Parker and ran into him: undeterred, Mr. Parker continued his verbal

protest. Id. at ¶¶ 36-38. Shortly after this, Councilwoman Hallam began “bumping”

Mr. Parker in an attempt to dissuade him from continuing his protest. Id. at ¶ 38.

Mr. Parker cried out for Councilwoman Hallam to stop bumping him, after

which Detective Gay approached Mr. Parker and shoved him, got into his face, and

prevented Mr. Parker from continuing his protest. Id. at ¶¶ 39-41. After Detective

Gay separated Mr. Parker from the parade, Chief Scirotto told Detective Gay to take

Mr. Parker to the ground and arrest him. Id. at ¶¶ 43-44. After Chief Scirotto

directed Detective Gay to arrest Mr. Parker, Detective Ford kicked Mr. Parker’s legs

out from underneath him and handcuffed him. Id. at ¶ 46.

After arresting Mr. Parker, Chief Scirotto walked him across the street, stating

“the show is over now bitch.” Id. at ¶ 49. Detective Ferrilli searched Mr. Parker with

the assistance of Detectives Gay and Ford. Id. at ¶¶ 50, 145. Mr. Parker was

transported to the Allegheny County Jail where he remained for 15 hours. Id. at ¶

52. Mr. Parker was charged with one count of aggravated assault and four counts of

disorderly conduct. Id. at ¶ 53. All of these charges were ultimately dismissed. Id.

at ¶ 85.

As a result of these events, Mr. Parker filed the present lawsuit, including the

operative second amended complaint. ECF 43.

The following chart summarizes Mr. Parker’s claims against each defendant:1

1 As part of the motion-to-dismiss briefing, Mr. Parker withdrew Count VI in its

entirety, and Counts III, VIII, and XI as to Detective Ferrilli (although Detective

Ferrilli was not named in Count XI in the complaint). ECF 58, p. 22. Mr. Parker also

withdrew his abuse-of-process claim as to Councilwoman Hallam. Id. at p. 20 (“Mr.

Parker has willfully concede[d] the Abuse of Process Claim”).

Count Defendant(s) Claim

Section 1983 — First

I Gainey/Scirotto/Gay/Ford/Hallam

Amendment Retaliation

II Scirotto/Gay/Ford Section 1983 – False Arrest

Section 1983 – Malicious

III Gainey/Scirotto/Gay/Ford/Ferrilli/Hallam Prosecution (withdrawn as to

Ferrilli)

Section 1983 – Excessive

IV Scirotto/Gay/Ford

Force (Fourth Amendment)

Section 1983 – Fourth

V Scirotto/Gay/Ford/Ferrilli Amendment Unlawful Search

and Seizure

VI Gainey/Scirotto/Gay/Ford/Hallam Civil Conspiracy (withdrawn)

VII City of Pittsburgh Section 1983 – Monell

Section 1983 – Failure to

Intervene (Fourth

VIII Scirotto/Gay/Ford/Ferrilli

Amendment) (withdrawn as

to Ferrilli)

IX Gay/Ford/Hallam Battery

X Scirotto/Gay/Ford False Imprisonment

XI Scirotto/Gay/Ford Malicious Prosecution

XII Ford/Hallam Abuse of Process

The City of Pittsburgh, Mayor Gainey, Chief Scirotto, Detective Ford,

Detective Gay, Detective Ferrilli, and Councilwoman Hallam filed motions to dismiss

the second amended complaint. ECF 44; ECF 46; ECF 48; ECF 54. All of the motions

are fully briefed and ready for disposition.

DISCUSSION & ANALYSIS2

I. First Amendment retaliation claim (Count I).

Mr. Parker brings a First Amendment retaliation claim against Mayor Gainey,

Chief Scirotto, Detective Gay, Detective Ford, and Councilwoman Hallam. ECF 43.

2 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. Any reasonable

inferences should be considered in the light most favorable to the plaintiff. See Lula

v. Network Appliance, 255 F. App’x 610, 611 (3d Cir. 2007) (citing Rocks v. City of

Phila., 868 F.2d 644, 645 (3d Cir. 1989)).

Mayor Gainey and Councilwoman Hallam move to dismiss. ECF 46; ECF 54.

To state a First Amendment retaliation claim, Mr. Parker “must show (1) that

[he] engaged in a protected activity, (2) that defendants’ retaliatory action was

sufficient to deter a person of ordinary firmness from exercising his or her rights, and

(3) that there was a causal connection between the protected activity and the

retaliatory action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d

Cir. 2007). When the claim alleges retaliation in the form of criminal prosecution,

the third element, “causation[,] requires a special method of proof—the plaintiff must

plead and prove the absence of probable cause.” Brantley v. Wysocki, 662 F. App’x

138, 142 (3d Cir. 2016) (citing Hartman v. Moore, 547 U.S. 250, 265-66 (2006)). Such

a claim also requires another element: proof that the defendant “induced the

prosecutor to bring charges that would not have been initiated without [the

defendant’s] urging.” Hartman, 547 U.S. at 262; Pellegrino v. U.S. Transp. Sec.

Admin., No. 09-5505, 2014 WL 3952936, at *4 (E.D. Pa. Aug. 12, 2014) (same). As

with all claims under Section 1983, the plaintiff must show that the defendants were

personally involved in the alleged wrongs, Rode v. Dellarciprete, 845 F.2d 1195, 1207

(3d Cir. 1988), and in the First Amendment retaliation context, the plaintiff must

show that the defendants were personally involved “in the alleged retaliatory acts.”

McIntyre v. Phillips, No. 23-3508, 2023 WL 8096896, at *9 (E.D. Pa. Nov. 21, 2023)

(dismissing First Amendment retaliation claim against defendants who were not

personally involved in the alleged retaliatory conduct).

Mayor Gainey. Mayor Gainey argues that he was not personally involved in

any alleged retaliation and thus can’t be liable for retaliation. ECF 47, p. 10. Mr.

Parker responds that Mayor Gainey is liable for retaliation under a supervisory-

liability theory. ECF 58, pp. 5-8. The Court finds that Mr. Parker cannot plead the

predicate for supervisory liability.

The Third Circuit recognizes two types of supervisory liability. Under the first

theory, a supervisor may be liable if he “established and maintained a policy, practice,

or custom” that caused constitutional harm. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv.

Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (cleaned up). Under the second theory, a

supervisor may be liable if he “participated in violating plaintiff’s rights, directed

others to violate them, or, as the person in charge, had knowledge of and acquiesced

in his subordinates’ violations.” Id. “Acquiescence requires both contemporaneous

knowledge of the alleged wrongdoing and direct supervisory authority over the

subordinate actor.” Morrison v. Varano, No. 20-61, 2020 WL 865421, at *2 (M.D. Pa.

Feb. 20, 2020). Mr. Parker fails to state a claim for supervisory liability against

Mayor Gainey under either theory.

As to the first theory, Mr. Parker has not identified a policy, practice, or custom

that Mayor Gainey established and maintained that caused the alleged constitutional

harm at issue here. A.M. ex rel. J.M.K., 372 F.3d at 586. Mr. Parker argues that

Mayor Gainey is the Mayor of Pittsburgh, and as such the head policymaker of the

City of Pittsburgh. ECF 58, p. 6. Mr. Parker argues “that despite the City of

Pittsburgh acknowledging that the First Amendment is sacrosanct on multiple

occasions they have violated the same and on at least one occasion were supposed to

implement additional policy to avoid arrests such as Mr. Parker’s” and that Mayor

“Gainey has failed in his duty to further establish policy protecting the First

Amendment, ensure the police force is trained in the First Amendment, and has

allowed the practice of contempt of cop arrests for First Amendment protected activity

to permeate the Pittsburgh Bureau of Police.” Id. However, Mr. Parker doesn’t

specifically identify any policy, practice, or custom that Mayor Gainey enacted that

led to the retaliation here. See ECF 43.3 Mutschler v. Downs, No. 15-2015, 2016 WL

3 Mr. Parker does discuss policies in his Monell claim against the City, but those

allegations do not affect the analysis of his First Amendment retaliation claim

against Mayor Gainey.

4689048, at *5 (M.D. Pa. Mar. 21, 2016) (stating that First Amendment retaliation

claim under a theory of supervisory liability should be dismissed because the plaintiff

failed to identify a specific policy that caused the alleged constitutional violation),

report and recommendation adopted, No. 15-2015, 2016 WL 4702477 (M.D. Pa. Apr.

12, 2016).

As to the second theory, Mr. Parker has not alleged that Mayor Gainey

participated in violating Mr. Parker’s rights or had knowledge and acquiesced to the

actions of his subordinates. Mr. Parker argues that Mayor Gainey observed Mr.

Parker’s protest, arrest, and confrontation with the police defendants, and that “[b]y

failing to intervene in a clearly baseless arrest, failing to discipline the officers

involved, refer same for any investigation to an outside agency, or contact the

Allegheny District Attorney’s Office regarding the arrest, Mayor Gainey acquiesced

to the unlawful actions of his subordinates.” ECF 58, pp. 7-8.

But Mr. Parker’s argument is not supported by the allegations in the second

amended complaint. Mr. Parker alleges that “Defendants took adverse action

against” him by: (1) “Shoving, bumping, striking, or subjecting Mr. Parker to

unwanted touching by Defendants Ford, Gay, Ferrilli, Scirotto, and Hallam;” (2)

“Defendant Scirotto ordering the use of force against a peaceable Mr. Parker and his

arrest;” (3) “Defendants Gay and Ford using excessive force against Mr. Parker while

forcibly arresting him despite the fact that he was non-violent and compliant; and”

(4) “Defendants Gay and Ford arresting Mr. Parker for exercising protected speech

critical of Defendant Gainey.” ECF 43, ¶ 61.a.-d. None of the foregoing averments

allege that Mayor Gainey himself took adverse action, or that he directed the other

defendants to take the alleged adverse actions. There also aren’t any allegations that

Mayor Gainey knew of and acquiesced to the alleged adverse actions. There is one

lone allegation in which Mr. Parker alleges that Mayor “Gainey was present and had

knowledge that Mr. Parker was being arrested and his rights violated by Defendant

Scirotto.” ECF 43, ¶ 167. But this sole allegation only pleads one part of the

equation—knowledge—and is not even part of Count I. Instead, it is located in Count

VII, Mr. Parker’s Monell claim against the City of Pittsburgh. Id. In any event, such

a conclusory allegation cannot form the basis for supervisory liability. Shepard v.

Overmeyer, No. 23-268, 2024 WL 4680410, at *4 (W.D. Pa. Nov. 5, 2024) (Lanzillo,

M.J.) (holding that a conclusory allegation was not sufficient to support a claim for

supervisory liability for retaliation).

As such, the Court will grant Mayor Gainey’s motion to dismiss Count I.

Councilwoman Hallam. Councilwoman Hallam argues that Mr. Parker

hasn’t met the three main elements to state a claim against her—but the Court

disagrees.

First, there is no question that Mr. Parker engaged in protected speech by

speaking about his grievances with Mayor Gainey. See Eichenlaub v. Twp. of Ind.,

385 F.3d 274, 284 (3d Cir. 2004) (finding plaintiff’s complaints and private grievances

against government officials protected activity for First Amendment retaliation

claim).

Second, the “bumping” was retaliatory because it was sufficient to deter Mr.

Parker from exercising his rights—Mr. Parker alleges that Councilwoman Hallam

“began bumping into Mr. Parker’s right shoulder with significant force in an attempt

to disrupt, dissuade, and stop Mr. Parker’s criticism of Defendant Gainey” and that

“Mr. Parker verbally cried out for Defendant Hallam to stop violently bumping into

[his] right shoulder.” ECF 43, ¶¶ 38-39. “The test in [the Third] Circuit for

determining whether an action is treated as retaliation is whether it is sufficient to

deter a person of ordinary firmness from exercising his constitutional rights.” Miller

v. Mitchell, 598 F.3d 139, 152 (3d Cir. 2010) (cleaned up). Mr. Parker specifically

pleads that Councilwoman Hallam’s “bumping” was an adverse action and was done

in a violent manner as he was speaking. ECF 43, ¶¶ 38-39, 61.a. At this juncture,

these allegations are sufficient to plead the second element.

Third, Mr. Parker has sufficiently pled a causal connection between his alleged

protected activity and Councilwoman Hallam’s “bumping” because he alleges that she

began bumping him while he was protesting “in an attempt to disrupt, dissuade, and

stop Mr. Parker’s criticism of Defendant Gainey.” Id. at ¶ 38; see Baloga v. Pittston

Area Sch. Dist., 927 F.3d 742, 759 (3d Cir. 2019) (describing causation).

The Court need not address the issue of whether probable cause existed for Mr.

Parker’s alleged retaliatory prosecution, because as explained below in the section

discussing Mr. Parker’s malicious-prosecution claim, Councilwoman Hallam was not

personally involved in the prosecution and thus cannot be held liable on that basis.

As such, the Court will deny Councilwoman Hallam’s motion to dismiss Count

I, but limit the scope of Mr. Parker’s claim to the “bumping” and not the prosecution.

II. Federal and state-law malicious-prosecution claims (Counts III and

XI).

Mr. Parker brings a Section 1983 malicious-prosecution claim against Mayor

Gainey, Chief Scirotto, Detective Gay, Detective Ford, Detective Ferrilli, and

Councilwoman Hallam. ECF 43, Count III. Mayor Gainey, Chief Scirotto, Detective

Gay, and Councilwoman Hallam seek to dismiss this claim. ECF 46; ECF 48; ECF

54. Mr. Parker also brings a state-law malicious-prosecution claim against Chief

Scirotto, Detective Gay, and Detective Ford. ECF 43, Count XI. Chief Scirotto and

Detective Gay move to dismiss this claim. ECF 48.

To state a malicious-prosecution claim under Section 1983, the plaintiff must

show that the defendant was acting under color of state law and that the defendant

deprived the plaintiff of a constitutional right. Piecknick v. Com. of Pa., 36 F.3d 1250,

1255-56 (3d Cir. 1994). “To prevail on a malicious prosecution claim under section

1983, a plaintiff must show 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.” McKenna v. City of Phila., 582 F.3d 447, 461 (3d Cir. 2009).

“Pennsylvania law requires that in a malicious prosecution claim, a Plaintiff

must prove the Defendants (1) instituted the proceedings (2) without probable cause

and (3) with actual malice and (4) that the proceedings terminated in favor of the

Plaintiff.” Pansy v. Preate, 870 F. Supp. 612, 617 (M.D. Pa. 1994), aff’d, 61 F.3d 896

(3d Cir. 1995). Malice includes ill will and the use of a prosecution for improper

purpose, and “can be inferred from the absence of probable cause.” Id. To prove a

malicious-prosecution claim, a plaintiff “must show both that the criminal proceeding

ended in his favor and that the defendant initiated the proceeding without probable

cause.” Allen v. New Jersey State Police, 974 F.3d 497, 504 (3d Cir. 2020) (emphasis

original).

Because Defendants’ motions to dismiss focus on the first element, i.e., whether

the defendants initiated the proceeding, as well as the question of supervisory

liability, the Court will analyze the federal and state claims together.

Mayor Gainey. Mayor Gainey argues that Mr. Parker fails to state a claim

for malicious prosecution against him for two reasons: (1) Mr. Parker has not

sufficiently alleged facts to support supervisory liability; and (2) even if Mr. Parker

had alleged sufficient facts as to supervisory liability, Mr. Parker has failed to allege

that Mayor Gainey initiated criminal proceedings against Mr. Parker. ECF 47, pp.

4-6.

“Government officials may not be held liable for the unconstitutional conduct

of their subordinates under the theory of respondeat superior.” Ashcroft v. Iqbal, 556

U.S. 662, 676 (2009) (emphasis original). The defendant “must have been involved

personally, meaning through personal direction or actual knowledge and

acquiescence, in the wrongs alleged.” McKenna, 582 F.3d at 460. Thus, the only way

that Mayor Gainey can be held liable for malicious prosecution under a theory of

supervisory liability is if Mayor Gainey “participated in violating the plaintiff’s rights,

directed others to violate them, or, as the person in charge, had knowledge of and

acquiesced in his subordinates’ violations.” Santiago v. Warminster Twp., 629 F.3d

121, 129 (3d Cir. 2010) (cleaned up).

Here, there are no allegations in the second amended complaint that support

a malicious-prosecution claim against Mayor Gainey under a theory of supervisory

liability. The second amended complaint alleges that Mayor Gainey was at the

parade, “chose to ignore Mr. Parker,” and instructed Detective Ford to leave Mr.

Parker alone. ECF 43, ¶¶ 22, 26, 83.d. The only allegation in the second amended

complaint that could potentially support Mr. Parker’s malicious-prosecution claim

against Mayor Gainey under a theory of supervisory liability is that Mayor “Gainey

was present and had knowledge that Mr. Parker was being arrested and his rights

violated by [Chief] Scirotto.” Id. at ¶ 167.

Accepting the well-pleaded allegations of the second amended complaint as

true, it is clear that there are sufficient allegations to show that Mayor Gainey was

present at the parade and knew that Mr. Parker was being arrested. But simply

being present at an arrest is not enough. The Third Circuit has held that mere

presence of the supervisor, without more, does not amount to knowledge or

acquiescence of subordinates’ violation. Santiago, 629 F.3d at 134 (affirming district

court dismissal of supervisory-liability claim because a police lieutenant’s presence

alone did not lead to a reasonable inference that lieutenant was aware or acquiesced

in subordinates’ use of excessive force); see McKenna, 582 F.3d at 460-61 (affirming

grant of summary judgement because police sergeant’s presence after defendant was

arrested did not amount to knowledge and acquiescence of subordinates’ use of

excessive force). To succeed on his claim, Mr. Parker must show that Mayor Gainey

had knowledge of and acquiesced to his subordinate’s actions. See id. at 460.

Moreover, even if the allegations show that Mayor Gainey had knowledge of the

arrest, there are no allegations that he had knowledge of the initiation of a criminal

proceeding, or that he acquiesced to the arrest or initiation of the criminal proceeding.

Thus, the Court will grant Mayor Gainey’s motion to dismiss Count III.

Chief Scirotto. Chief Scirotto argues that Mr. Parker fails to state a claim

against him for malicious prosecution because Mr. Parker fails to allege that Chief

Scirotto “provided information, let alone false or misleading information, to Detective

Ford or a prosecutor.” ECF 49, 5. In response, Mr. Parker argues that Chief Scirotto

is liable for malicious prosecution under a supervisory liability theory because he was

present at the parade and directed Detectives Gay and Ford to arrest Mr. Parker; and

also that Chief Scirotto “failed to disclose exculpatory evidence to prosecutors,

omitted material information from the reports, and interfered with the prosecutor’s

ability to exercise independent judgment in deciding whether to prosecute” because

he “was a direct witness of Mr. Parker’s protected speech and battery by

[Councilwoman] Hallam.” ECF 58, pp. 10-11.

The principles of supervisory liability addressed in the above section on Mayor

Gainey’s motion to dismiss also apply to Chief Scirotto’s motion to dismiss.

Typically, prosecutors initiate criminal proceedings, but police officers can be

held liable for malicious prosecution if they knowingly provide false information, omit

information, or fail to provide exculpatory information. Henderson v. City of Phila.,

853 F. Supp. 2d 514, 518 (E.D. Pa. 2012) (“Although prosecutors rather than police

officers are generally responsible for initiating criminal proceedings, an officer may,

however, be considered to have initiated a criminal proceeding if he or she knowingly

provided false information to the prosecutor or otherwise interfered with the

prosecutor’s informed discretion.” (cleaned up)); Garcia v. Micewski, No. 97-5379,

1998 WL 547246, at *9 (E.D. Pa. Aug. 24, 1998) (“An individual can be liable for

malicious prosecution if he fails to disclose exculpatory evidence to prosecutors,

makes false or misleading reports to the prosecutor, omits material information from

the reports, or otherwise interferes with the prosecutor’s ability to exercise

independent judgment in deciding whether to prosecute.” (cleaned up)).

Mr. Parker points the Court to paragraphs 43-49 and 50-53 of the second

amended complaint as allegations establishing that Chief Scirotto “ordered, directed,

participated in, had knowledge of and acquiesced in his subordinates[’] violations of

Mr. Parker[’]s civil rights.” ECF 58, p. 11. Mr. Parker alleges that Chief Scirotto

directed Detectives Gay and Ford to arrest him. ECF 43, ¶¶ 43-45, 93, 105. However,

even if these allegations are sufficient to plead that Chief Scirotto had knowledge of

and acquiesced to Mr. Parker’s arrest, there are no allegations that Chief Scirotto had

knowledge of the initiation of a criminal proceeding, or that he acquiesced to the

initiation of the criminal proceeding. There also aren’t any allegations that Chief

Scirotto gave false information to prosecutors or otherwise withheld exculpatory

evidence.

As such, the Court will grant Chief Scirotto’s motion to dismiss Counts III and

XI.

Detective Gay. Like Chief Scirotto, Detective Gay argues that Mr. Parker

fails to state a claim for malicious prosecution against him because “Mr. Parker’s

Second Amended Complaint is devoid of any allegations that Chief Scirotto, Detective

Gay, or Detective Ferrilli provided information, let alone false or misleading

information, to Detective Ford or a prosecutor.” ECF 49, p. 5.

Mr. Parker argues that Detective Gay “failed to disclose exculpatory evidence

to prosecutors, limited material information from the reports, and interfered with the

prosecutor’s ability to exercise independent judgment in deciding whether to

prosecute.” ECF 58, p. 11. The crux of Mr. Parker’s argument is that because

Detective Gay witnessed “Mr. Parker’s protected speech and battery by

[Councilwoman] Hallam[,]” Detective Gay is liable for malicious prosecution. Id. at

12.

As stated above, police officers can be held liable for malicious prosecution if

they knowingly provide false information, omit information, or fail to provide

exculpatory information to the prosecutor. Henderson, 853 F. Supp. 2d at 518-19.

Here, Mr. Parker points the Court to Paragraphs 21-53 of the second amended

complaint, arguing that these allegations support the malicious-prosecution claim

because “Detective Gay was a direct witness of Mr. Parker’s protected speech and

battery by [Councilwoman] Hallam” and “had a duty to correct [] lies that Detective

Ford authored and provide the truth to the prosecutor, which he failed to do.” ECF

58, pp. 11-12. Defendants argue that “Mr. Parker’s Second Amended Complaint

contains no facts that Detective Gay authored any reports relative to this incident,

had any contact with prosecutors, or was aware that the affidavit authored by

Detective Ford contained incorrect information.” ECF 59, pp. 6-7; see ECF 43.

After careful review, the Court disagrees. It is reasonable to infer from

Detective Ford’s affidavit that he conferred with Detective Gay in drafting the

affidavit. ECF 43-1, pp. 5-7. The affidavit states that Detective Ford “was being

assisted by [Detective] Gay.” Id. at 6. The affidavit also details Detective Gay’s

participation in the incident. Id. At this stage of the case, this is sufficient for Mr.

Parker’s malicious-prosecution claims against Detective Gay to proceed.

Because it is reasonable to infer that Detective Gay withheld exculpatory

information from prosecutors or omitted information from a report, the Court will

deny Detective Gay’s motion to dismiss Counts III and XI.

Councilwoman Hallam. Councilwoman Hallam argues that Mr. Parker

fails to state a claim against her for malicious prosecution because there are no

allegations that she filed criminal charges against Mr. Parker. ECF 55, p. 7. In

response, Mr. Parker argues that Councilwoman Hallam is liable for malicious

prosecution because she initiated the chain of events by “bumping” Mr. Parker and

because she was a named victim in the complaint and “failed for a significant amount

of time to come forward and ultimately set the record straight as to Mr. Parker.” ECF

58, p. 13 (citing ECF 43, ¶¶ 21-86).

Even accepting Mr. Parker’s allegations as true and drawing all reasonable

inferences in his favor, his allegations are not sufficient to support a malicious-

prosecution claim. There are no allegations that Councilwoman Hallam gave false

information to prosecutors or otherwise withheld exculpatory evidence. In fact, the

allegations in the second amended complaint state that Councilwoman Hallam did

inform the Detectives and ultimately the Allegheny County District Attorney’s Office

that she was not a victim, that she did not wish to be named as an alleged victim, and

that she would not participate or testify in the prosecution of Mr. Parker. ECF 43, ¶

83.h. There are no factual allegations to support a malicious-prosecution claim

against Councilwoman Hallam.

As such, the Court will grant Councilwoman Hallam’s motion to dismiss Count

III.

III. Unlawful search and seizure (Count V).

Mr. Parker brings a claim for unlawful search and seizure in violation of the

Fourth Amendment under Section 1983 against Chief Scirotto, Detective Gay,

Detective Ford, and Detective Ferrilli. ECF 43. Chief Scirotto, Detective Gay, and

Detective Ford move to dismiss. ECF 48.

“The elements of a § 1983 claim for unreasonable search and seizure are: (1)

the actions of the police officers constituted a search or seizure within the meaning of

the Fourth Amendment; and (2) the actions were unreasonable in light of the

surrounding circumstances.” Balzora v. Balatgek, No. 24-522, 2024 WL 625275, at

*4 (E.D. Pa. Feb. 13, 2024). As with all Section 1983 claims, the defendant must have

been personally involved in the constitutional violation to be held liable. Lozano v.

New Jersey, 9 F.4th 239, 242 (3d Cir. 2021) (“It is equally true, though, that officers

must be personally involved in a constitutional rights violation to be held liable for

it.”). To show personal involvement in the Fourth Amendment unreasonable search

and seizure context, the plaintiff must allege that the defendant actively participated

in the search. Strunk v. E. Coventry Twp. Police Dep’t, 674 F. App’x 221, 225 (3d Cir.

2016) (affirming district court’s dismissal of Section 1983 unreasonable search claim

because “other officers not named in the action executed the search”).

Chief Scirotto. Chief Scirotto argues that this claim should be dismissed as

to him because he was not personally involved as required under Section 1983 since

he did not actively participate in the search. ECF 49, pp 8-9. In response, Mr. Parker

argues that Chief Scirotto is liable for unlawful search and seizure under a failure-

to-intervene theory—in other words, that Chief Scirotto failed to intervene to stop the

unlawful search. ECF 58, p. 16.

This argument fails for two reasons.

First, the second amended complaint doesn’t plead this theory within Count V.

True, in Count VII, Mr. Parker asserts a stand-alone failure-to-intervene claim

against Chief Scirotto, but that count only includes allegations related to a failure to

intervene in Mr. Parker’s alleged false arrest and a failure to intervene with the use

of excessive force against Mr. Parker. ECF 43, ¶¶ 168-172. So Count VII can’t be the

basis of a failure-to-intervene claim against Chief Scirotto related to the alleged

unreasonable search and seizure.

Second, there is no such thing as a failure-to-intervene claim in the context of

an unlawful search. The Third Circuit has recently stated: “Though we have

recognized a right to have a government actor intervene when the underlying

constitutional violation involves excessive force or sexual assault of a person in

custody or detention, we have since concluded that our precedent does not establish,

let alone clearly establish, a right to intervention in other contexts.” Thomas v. City

of Harrisburg, 88 F.4th 275, 285 (3d Cir. 2023) (granting qualified immunity to

officers for failure to intervene in the violation of a right to medical care), cert. denied

sub nom. Foose v. Thomas, 145 S. Ct. 141 (2024), and cert. denied sub nom. Kinsinger

v. Thomas, 145 S. Ct. 141 (2024); see also Weimer v. County of Fayette, 972 F.3d 177,

190-91 (3d Cir. 2020) (finding that the right to intervene hasn’t been clearly extended

to intervention to prevent unconstitutional investigations); see also Ricks v. Shover,

891 F.3d 468, 479 (3d Cir. 2018) (discussing failure to intervene in sexual abuse

context); E.D. v. Sharkey, 928 F.3d 299, 307-08 (3d Cir. 2019) (same).

District courts routinely dismiss failure-to-intervene claims that fall outside of

the excessive force or custodial sexual assault context. Ogrod v. City of Phila, 598 F.

Supp. 3d 253, 273 (E.D. Pa. 2022) (dismissing failure-to-intervene claim because

there is “no clear authority” that a duty to intervene exists outside of the excessive

force context); see also Wertz v. Inmate Calling Sols., LLC, No. 23-1045, 2024 WL

989405, at *7 (W.D. Pa. Mar. 7, 2024) (Weigand, J.) (dismissing claim for failure to

intervene with recording of attorney-client communications because it was outside

the excessive-force context); Nesgoda v. Rooney, No. 22-253, 2023 WL 11487839, at

*6-7 (M.D. Pa. May 17, 2023) (dismissing failure-to-intervene claim in criminal arrest

and prosecution context), report and recommendation adopted, No. 22-253, 2024 WL

2094009 (M.D. Pa. May 9, 2024).

Because the claim is not appropriately pled and is otherwise unsupported as a

matter of law, the Court will grant Chief Scirotto’s motion to dismiss Count V.

Detective Gay and Detective Ford. Mr. Parker has sufficiently pled an

unreasonable-search claim against Detectives Gay and Ford. Mr. Parker alleges that

the search “was performed by [Detective] Ferrilli with the assistance of [Detectives]

Gay and Ford.” ECF 43, ¶ 145. While Mr. Parker does not go into any detail about

what that assistance looked like, this allegation is enough when understood in the

context of all of the allegations, and so is enough to proceed into discovery. Strunk,

674 F. App’x at 225 (stating that only defendants who actively participate in an

alleged illegal search can be liable under section 1983).

Thus, the Court will deny Detective Gay and Detective Ford’s motion to dismiss

Count V.

IV. Civil Conspiracy (Count VI).

Mayor Gainey (ECF 46), Chief Scirotto, Detective Ford, Detective Gay (ECF

48), and Councilwoman Hallam (ECF 54) move to dismiss Mr. Parker’s civil

conspiracy claim. In his brief, Mr. Parker withdrew Count VI in its entirety. ECF

58, p. 22. As such, the Court will dismiss the civil-conspiracy claim.

V. Monell claim (Count VII).

Mr. Parker brings a Monell claim against the City of Pittsburgh. ECF 43,

Count VII. The City moves to dismiss. ECF 44. The City argues that Mr. Parker’s

Monell claim fails for three reasons. ECF 45, pp. 1-2. The City argues that: (1) Mr.

Parker fails to identify a “custom;” (2) Mr. Parker fails to allege sufficient

constitutional violations to show a failure to train or supervise; and (3) Mr. Parker

“fails to sufficiently plead a causal connection between the alleged customs, and/or

failures identified in his Second Amended Complaint and his alleged constitutional

injuries.” Id. at 1-2.

In general, municipalities, like the City, are liable under Section 1983 “only if

they have caused a constitutional tort through a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body’s officers.”

LaVerdure v. Cnty. of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003) (cleaned up).

Within this framework, the Third Circuit has clarified that there are three ways a

municipality can be liable for the torts of its employees. McGreevy v. Stroup, 413 F.3d

359, 367 (3d Cir. 2005).

“First, the municipality will be liable if its employee acted pursuant to a formal

government policy or a standard operating procedure long accepted within the

government entity; second, liability will attach when the individual has policy

making authority rendering his or her behavior an act of official government policy;

third, the municipality will be liable if an official with authority has ratified the

unconstitutional actions of a subordinate, rendering such behavior official for liability

purposes.” Id. (cleaned up). “Thus, a plaintiff can establish the existence of a custom

or policy by showing either that the decision-maker possessing final authority to

establish a municipal policy did so by issuing an official statement of policy or that a

governmental custom developed when the official acquiesced to a course of conduct

such that it operated as law.” Peterson v. Allegheny Cnty., No. 21-78, 2022 WL

280948, at *20 (W.D. Pa. Jan. 31, 2022) (Wiegand, J.) (cleaned up).

Mr. Parker’s Monell claim fails for the following reasons.

First, Mr. Parker has failed to allege a custom that caused a constitutional

violation. A custom is a practice of state officials “so permanent and well settled as

to virtually constitute law.” Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996)

(cleaned up). Mr. Parker alleges that “[h]is arrest was a result of a custom of the City

of Pittsburgh, particularly through the Bureau of Police, disregarding

constitutionally protected rights such as freedom of speech.” ECF 43, ¶ 159. In

support of this allegation, Mr. Parker points to two cases that he submits are

examples of the alleged custom: (1) Hackbart v. City of Pittsburgh, Case No. 07-cv-

157; and (2) Rulli v. City of Pittsburgh, Case No. 20-cv-965. Id. Mr. Parker alleges

that “[t]he continual conscious disregard of protesters’ right of freedom of speech

constitutes a custom within the City of Pittsburgh and the City of Pittsburgh Bureau

of Police.” Id. at ¶ 160.

While the Third Circuit hasn’t “considered whether civil lawsuits alleging

constitutional violations” can support an inference that a “municipality knew about

and acquiesced in a custom” resulting in a constitutional violation, “[o]ther courts

that have considered this question have determined that a plaintiff’s citation to a few

lawsuits involving claims of alleged constitutional violations is not probative of the

existence of an underlying policy by a municipality.” Gonzalez v. Borough of Red

Bank, No. 18-13009, 2020 WL 2029338, at *9 (D.N.J. Apr. 28, 2020) (cleaned up).

To impose liability based on prior lawsuits, “more information about such

lawsuits is required, such as whether they resulted in a finding that a constitutional

violation occurred and whether the municipality’s response to the suits could

demonstrate deliberate indifference to the risk of future constitutional violations.”

Pharaoh v. Dewees, No. 14-3116, 2016 WL 2593842, at *5 (E.D. Pa. May 4, 2016).

And if such lawsuits were settled without a finding of liability on the defendants’ part,

that fact renders the evidence of the former lawsuits even less persuasive. Hernandez

v. Nielson, No. 00-50113, 2002 WL 31804788, at *1 (N.D. Ill. Dec. 13, 2002)

(dismissing claim for Monell liability in part because the evidence supporting the

claim consisted of settled lawsuits). Mr. Parker provides none of this information as

to the two other lawsuits.

Mr. Parker also cannot rely on his own arrest as sufficiently alleging a custom

because “[a] single incident of police misbehavior by a single policeman is insufficient

as sole support for an inference that a municipal policy or custom caused the

incident.” Brown v. City of Pittsburgh, 586 F.3d 263, 292 (3d Cir. 2009) (cleaned up).

Accordingly, Mr. Parker has failed to allege the existence of a custom sufficient to

state a claim for municipal liability.

Second, Mr. Parker hasn’t sufficiently alleged a failure-to-train claim. Mr.

Parker sets forth the standard for such a claim, but then doesn’t include enough

allegations to show either a pattern of similar constitutional violations by untrained

employees or deliberate indifference on the part of policymakers. ECF 43, ¶¶ 161-

167. At most, Mr. Parker baldly asserts that “Defendants Scirotto and Gainey

showed deliberate indifference to the deprivation of rights of freedom of speech and

unlawful arrest demonstrating a continued pattern and practice within the City of

Pittsburgh.” Id. at ¶ 164. Without allegations about a pattern of similar

constitutional violations, personal involvement by Chief Scirotto and Mayor Gainey,

or allegations as to the training the officers received, Mr. Parker cannot state a claim.

Peterson, 2022 WL 280948, at *21 (dismissing Monell claim because plaintiffs didn’t

allege “any pattern of similar constitutional violations” and “offered no well-pled

factual allegations as to the training [the municipal entity] does (or does not provide)

to its [employees], such that the particular alleged deficiencies in training can be

discerned”).

As such, the Court will grant the City’s motion to dismiss Count VII.

VI. Abuse of process (Count XII).

Councilwoman Hallam moves to dismiss Mr. Parker’s abuse-of-process claim.

ECF 54. Mr. Parker concedes this claim. ECF 58, p. 20 (“Mr. Parker has willfully

concede[d] the Abuse of Process Claim”). As such, the Court will dismiss the abuse-

of-process claim against Councilwoman Hallam.

VII. Counts against Detective Ferrilli (Counts III, VIII, and XI).

Mr. Parker withdrew Counts III, VIII, and XI as to Detective Ferrilli. ECF 58,

p. 22. As such, the Court will grant Detective Ferrilli’s motion to dismiss those

counts. ECF 48.

CONCLUSION

For these reasons, this 23rd day of July, 2025, it is hereby ORDERED that:

(1) The City of Pittsburgh’s motion to dismiss Count VII (ECF 44) is

GRANTED;

(2) Mayor Gainey’s motion to dismiss Counts I, III, and VI (ECF 46) is

GRANTED;

(3) Chief Scirotto’s motion to dismiss Counts III, V, VI, and XI (ECF 48) is

GRANTED;

(4) Detective Ford’s motion to dismiss (ECF 48) is GRANTED as to Count VI

and DENIED as to Count V;

(5) Detective Gay’s motion to dismiss (ECF 48) is GRANTED as to Count VI

and DENIED as to Counts III, V, and XI;

(6) Detective Ferrilli’s motion to dismiss Counts III, VIII, and XI (ECF 48) is

GRANTED;

(7) Councilwoman Hallam’s motion to dismiss (ECF 54) is DENIED as to

Count I and GRANTED as to Counts III, VI, IX, and XII.

The dismissed counts shall all be DISMISSED WITH PREJUDICE. This is so

because the complaint has already been amended twice, Mr. Parker already had an

opportunity and right to amend in response to the motions to dismiss (which he

partially did by withdrawing certain claims), and Mr. Parker has not requested

amendment in the course of his briefing. So allowing any leave to amend would be

inequitable. Nelson v. Pennrose Mgmt. Reg’l, No. 14-1063, 2015 WL 222384, at *3

(W.D. Pa. Jan. 14, 2015) (McVerry, J.) (dismissing case with prejudice where allowing

a “third bite at the apple would not be equitable”).

BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge