Genco v. Luffey

Full title: JAMES A. GENCO, III, Plaintiff, v. CHRISTINE LUFFEY, et al, Defendants.

Court: United States District Court, W.D. Pennsylvania

Date published: Dec 20, 2022

Civil Action 2:21-cv-01518 (W.D. Pa. Dec. 20, 2022)

Opinion

Civil Action 2:21-cv-01518

12-20-2022

JAMES A. GENCO, III, Plaintiff, v. CHRISTINE LUFFEY, et al, Defendants.

LISA PUPO LENIHAN United States Magistrate Judge

David S. Cercone Judge

REPORT AND RECOMMENDATION ON MOTION TO DISMISS and MOTION TO STRIKE FILED BY DEFENDANTS MONTMENY, BURKE and HARP

ECF No. 28

LISA PUPO LENIHAN United States Magistrate Judge

I. RECOMMENDATION

For the reasons set forth below, it is respectfully recommended that the Motion to Dismiss the Complaint filed by Defendants Montmeny, Burke, and Humane Animal Rescue of Pittsburgh (ECF No. 28) be granted in part and denied in part. The Court recommends that the Motion to Dismiss be granted as to Plaintiff's Pennsylvania common law claims of false imprisonment, conspiracy, and respondeat superior liability against Defendants Montmeny, Burke and HARP set forth respectively in Counts V, VI, and VII, and that those claims be dismissed with prejudice as to these Defendants.

The Court further recommends that the Motion to Dismiss be denied as to Plaintiff's Section 1983 claims and federal conspiracy claims against Defendants Montmeny, Burke and HARP set forth in Counts I, II, III, and IV.

It is further recommended that the HARP Defendants' Motion to Strike (also filed at ECF No. 28), be denied.

II. REPORT

A. Factual Allegations and Procedural History

In this civil rights action, Plaintiff, James Genco, has brought claims against Defendants Humane Animal Rescue of Pittsburgh (“HARP”), Megan Montmeny, Camille Burke, and John/Jane Doe(s) (collectively referred to as the “HARP Defendants”), as well as against Defendant Christine Luffey, a City of Pittsburgh Police Officer, for violations of his constitutional rights under the Fourth Amendment, as well as for violations of Pennsylvania common law.¹The events giving rise to this lawsuit and relevant factual allegations are summarized as follows.

1 Plaintiff also sued Pittsburgh Veterinary Specialty and Emergency Clinic and Emily Gardner, one of its employees, but voluntarily agreed to withdraw his claims against them in response to their motion to dismiss. See ECF Nos. 46, 51. Subsequently, the Court entered an order terminating these Defendants from the case and denying their motion to dismiss as moot. See ECF No. 54.

Plaintiff was employed by the City of Pittsburgh as an animal care and control officer since in or around 1996. Am. Compl. ¶ 13, ECF No. 22. He does not have a past record of any misconduct or abuse in his employment as an animal care and control officer with the City of Pittsburgh. Id. at ¶14.

On or about March 17, 2021, Plaintiff and his partner Officer John Lapp were notified of two dogs in distress that were left unattended, without food or water, inside a vehicle that was parked in the sun, with the windows up, in the Strip District of Pittsburgh. Id. at ¶ 15. After an unsuccessful attempt to locate the owner(s) of the vehicle and dogs, Plaintiff and Officer Lapp removed the dogs from the car with the assistance of City of Police Officers Francis Rende and Eric Churilla. Id. at ¶¶ 16, 18-19. The smaller dog was calm and removed from the vehicle without any issue, but the larger dog was extremely aggressive when removed from the vehicle. Id. at ¶ 20.

Due to its extreme aggression, the larger dog suffered multiple cuts and wounds from the broken glass of the vehicle's window. Id. at ¶ 21. Plaintiff placed the larger dog on a control pole due to its aggression. Id. Concerned for his safety and the safety of the other officers, Officer Rende drew his firearm as a direct result of the larger dog's extreme aggression. Id. at ¶ 22. The extreme aggression of the larger dog observed by Plaintiff and the other officers included growling, biting the control pole, pulling and lunging its body onto the ground and towards Plaintiff and other individuals at the scene. Id. at ¶ 23. Due to the larger dog's extreme aggression, Plaintiff was concerned for his safety and the safety of others while handling the larger dog. Id. at ¶ 24. Plaintiff and Officer Lapp then placed both dogs into their animal control vehicle with difficulty due to the extreme aggression of the larger dog. Id. at ¶ 25. When the larger dog was placed into a cage in the animal control vehicle, it began to bite the metal of the cage, causing multiple sections of the cage to bend and become damaged. Id. at ¶ 26. Also, as a result of the biting of the control pole and cage, the larger dog broke multiple teeth. Id. at ¶ 27.

Thereafter, Plaintiff and Officer Lapp transported the two dogs to HARP's garage area for intake. Id. at ¶ 28. The smaller dog was given to individuals working at HARP without any issues or aggressive behavior. Id. at ¶ 29. However, when Plaintiff removed the larger dog from the animal control vehicle, it lunged at Plaintiff, causing him to fall backwards. Id. at ¶ 30. Plaintiff again restrained the larger dog with a control pole and walked the dog into the facility, during which the dog continued to bite the control pole and display extreme aggression. Id. at ¶ 31. The aggressive and erratic behavior of the larger dog required Plaintiff and approximately three veterinary technicians to restrain the dog once Plaintiff brought it to HARP's exam room. Id. at ¶ 32. At that time, one of HARP's veterinary technicians threw the larger dog behind the exam room door and the dog was muzzled and sedated. Id. at ¶ 33. Plaintiff had no further contact with the larger dog and he left HARP's facility. Id. at ¶34.

Sometime thereafter, Defendants Montmeny, Burke and/or Doe(s), in their capacity as employees of HARP, contacted Plaintiff's employer and reported that Plaintiff abused the larger dog while at HARP's facility on March 17, 2021. Id. at ¶ 35. Plaintiff alleges that the accusation of animal cruelty made by Defendants Montmeny, Burke and/or Doe(s) is patently false and defamatory. Id. at ¶¶ 35-36. Plaintiff further alleges that these Defendants knew or should have known that the accusation of animal cruelty lodged against Plaintiff was false and therefore made with the intent to harm him. Id. at ¶ 37. On or about April 1, 2021, Plaintiff was placed on leave by the City of Pittsburgh after it received the accusation of animal abuse made by Defendants Montmeny, Burke and Doe(s). Id.at ¶ 38.

In addition, Defendants Montmeny, Burke and/or Doe(s), in their capacity as employees of HARP, contacted the Pittsburgh Police Department and reported that Plaintiff abused the larger dog while at HARP's facility on March 17, 2021. Id. at ¶39. Plaintiff alleges that this accusation of animal cruelty made by Defendants Montmeny, Burke and/or Doe(s) is patently false. Id.

Plaintiff further alleges that Defendant Luffey knew or should have known that the accusation of animal cruelty lodged against him was false. Id. at ¶ 40. Defendants Montmeny, Burke and/or Doe(s) provided HARP's security camera footage to Defendant Luffey which showed Plaintiff's interactions with the dog at HARP's facility. Id. at ¶ 41. Plaintiff avers that this security footage did not show any evidence that Plaintiff was abusive toward the dog at any time. Id. at ¶ 42. In addition, Plaintiff and Officers Lapp, Rende, and Churilla provided statements to Defendant Luffey and/or other individuals involved in Luffey's investigation to the effect that Planitiff did not abuse the dog at any time and that the dog's injuries were selfinflicted and a result of its extreme aggression and erratic behavior. Id. at ¶¶ 44-46. At that time, Officer Rende informed Defendant Luffey that when he encountered the dog, he feared for his safety and that of the other individuals present and as a result of the dog's aggression, he drew his firearm. Id. at ¶ 47.

On or about June 10, 2021, Defendant Luffey charged and arrested Plaintiff on a felony grade charge of aggravated cruelty to animals, a misdemeanor charge of cruelty to animals, and summary offense of cruelty to animals. Id. at ¶ 48. Defendant Luffey failed to include exculpatory evidence in her affidavit of probable cause including, but not limited to, statements from Plaintiff and Officers Lapp, Rende, and Churilla. Id. at ¶ 51. At the time of Plaintiff's arrest, Defendant Luffey possessed security camera footage which showed that probable cause did not exist for charging Plaintiff with the above mentioned animal cruelty crimes. Id. at ¶ 52. Defendant Luffey also included false information in her affidavit of probable cause including, but not limited to, falsely stating that the Plaintiff dragged the dog twenty-five to thirty feet and attributing an already existing tail injury to Plaintiff's alleged behavior. Id. at ¶ 53.

Moreover, Defendant Luffey specializes in animal abuse and neglect cases and therefore she knew or should have known that no probable cause existed to charge Plaintiff with the above-mentioned criminal charges. Id. at ¶54. Plaintiff was detained for approximately twenty-two hours in the Allegheny County Jail without any justification. Id. at ¶ 55. On September 21, 2021, all charges against the Plaintiff were dismissed at his preliminary hearing. Id. at ¶ 58.

In the past, Plaintiff reported concerns about HARP's facility regarding issues with HARP's garage and other matters to his supervisor and took pictures of HARP's garage illustrating his concerns at the request of his supervisor. Id. at ¶ 61. Defendant Luffey has a close working and/or personal relationship with HARP and individuals associated with HARP. Id. at ¶ 59. As such, Plaintiff believes that Defendant Luffey and Defendants Montmeny, Burke and/or Doe(s), in their capacity as employees and/or representatives of HARP, conspired to unlawfully arrest, detain and prosecute Plaintiff, without any probable cause, in order to retaliate against him for his reports against HARP. Id. at ¶ 62.

On or about June 11, 2021, Plaintiff was suspended and eventually terminated from his position as animal care and control officer by the City of Pittsburgh. Id. at ¶¶ 56-57. Consequently, Plaintiff was required to withdraw his pension and has suffered and continues to suffer from extreme emotional distress and sleepless nights. Id. at ¶¶66-67.

Plaintiff filed this civil rights lawsuit on October 25, 2021 against the Defendants alleging violations of federal and state law. In response to an earlier motion to dismiss, Plaintiff filed an Amended Complaint (ECF No. 22) on March 18, 2022, which is the operative complaint at issue. In his Amended Complaint, Plaintiff asserts claims for malicious prosecution, false arrest, false imprisonment, and conspiracy under 42 U.S.C. § 1983 and the Fourth Amendment against Defendants Luffey, Montmeny, Burke, and Doe(s) for violations of his constitutional rights. Am. Compl., Counts I through IV. In Count V, Plaintiff asserts a Pennsylvania common law claim of false imprisonment against all Defendants, and in Count VI, he asserts a conspiracy claim under Pennsylvania common law against Defendants Luffey, Montmeny, Burke and/or Doe(s). See id., Counts V & VI. Finally, in County VII, Plaintiff has sued HARP under Pennsylvania common law for a violation of his rights based on respondeat superior liability. See id., Count VII. Plaintiff alleges that he has suffered emotional trauma, damage to his reputation, economic damages in the form of lost wages and pension, and economic damages related to any other consequential costs for which he seeks compensatory and punitive damages, reasonable attorney's fees, costs of suit, pre- and post-judgment interest, and any other relief the Court deems proper.

On April 20, 2022, the HARP Defendants filed the pending Motion to Dismiss Plaintiff's Complaint Pursuant to Rule 12(b)(6) and the pending Motion to Strike Pursuant to Rule 12(f).² ECF No. 28. On May 26, 2022, Plaintiff filed a Brief in Opposition to the Motion to Dismiss and Motion to Strike. ECF No. 33. The HARP Defendants filed a Reply Brief on June 9, 2022. ECF No. 38. The motions are ripe for disposition.

2 On that same date, Defendant Luffey filed an Answer to the Amended Complaint and Affirmative Defenses (ECF No. 30); she has not moved to dismiss the Amended Complaint. Thus, the Defendants Montmeny, Burke, and HARP are the only Defendants requesting dismissal of the Amended Complaint at this time. Doe Defendants have not been identified yet and are not currently represented by counsel.

B. Legal Standard

1. Motion to Dismiss Pursuant to Rule 12(b)(6)

In deciding a motion to dismiss under Rule 12(b)(6), the courts apply the following standard, as reiterated by the court of appeals:

A complaint may be dismissed under Rule 12(b)(6) for “failure to state a claim upon which relief can be granted.” But detailed pleading is not generally required. The Rules demand “only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “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.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citation and internal quotation marks omitted). “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.; see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n. 27 (3d Cir.2010). Although the plausibility standard “does not impose a probability requirement,” Twombly, 550 U.S. at 556, 127 S.Ct. 1955, it does require a pleading to show “more than a sheer possibility that a defendant has acted unlawfully,” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

Connelly v. Lane Constr. Corp., 809 F.3d 780, 786-87 (3d Cir. 2016).

Building upon the landmark Supreme Court decisions in Twombly and Iqbal, the court of appeals in Connelly reiterated the three-step process district courts must undertake to determine the sufficiency of a complaint:

First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.” Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. Second, it should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. 1937. See also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir.2011) (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.” (citation and editorial marks omitted)). Finally, “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

Id. at 787.

At the motion to dismiss stage, “for purposes of pleading sufficiency, a complaint need not establish a prima facie case in order to survive a motion to dismiss[,]” but need only allege “'enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s].'” Connelly, 809 F.3d at 788-89 (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556)) (footnote omitted).

2. Motion to Strike

Federal Rule of Civil Procedure 12(f) allows the court to strike from a pleading “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). The standard for striking portions of a plaintiff's complaint under Rule 12(f) “is so strict and . . . only allegations that are so unrelated to the plaintiffs' claims as to be unworthy of any consideration should be stricken.” Johnson v. Anhorn, 334 F.Supp.2d 802, 809 (E.D. Pa. 2004) (quoting Becker v. Chicago Title Ins. Co., No. Civ. A. 03-2292, 2004 WL 228672, at * 6 (E.D. Pa. 2004)). “Moreover, striking portions of a plaintiff's pleadings is a ‘drastic remedy,' which should be used only when justice requires it.” Id. Allegations are immaterial or impertinent and should be stricken “if they do not have an important relationship to the claims pled or do not pertain to the issues involved.” Id. Additionally, “when allegations in the Complaint could lead to a ‘better understanding of plaintiff's claims or perform any useful purpose in promoting the just disposition of the litigation,' they will not be considered immaterial, impertinent or scandalous, and a motion to strike will be denied.” Miller v. Allstate Fire & Cas. Ins. Co., No. 07-260, 2009 WL 577964, at *2 (W.D. Pa. 2009).

C. Discussion

1. Motion to Dismiss - State Common Law Claims

a. False Imprisonment

At Count V of his Amended Complaint, Plaintiff contends that he was unreasonably seized by Defendant Luffey and falsely imprisoned by the Commonwealth of Pennsylvania without probable cause to believe that Plaintiff had committed an act which would justify his detainment. ECF No. 22, ¶ 109. Plaintiff further contends that Defendant Luffey and Defendants Montmeny, Burke and/or Doe(s), in their capacity as employees and/or representatives of HARP, conspired to have Plaintiff unlawfully arrested, detained, and prosecuted without probable cause. Id. at ¶¶ 110-111.

In support of their motion to dismiss Count V, the HARP Defendants submit that the false imprisonment claim is barred by Pennsylvania's privilege relating to statements preliminary to a judicial proceeding. Essentially, the HARP Defendants argue that they cannot be held liable for their allegedly false and defamatory statements to Defendant Luffey, because statements made by witnesses to police for the purpose of inducing the filing of criminal charges are absolutely privileged as statements preliminary to a judicial proceeding. As such, the HARP Defendants maintain that their statements cannot form the basis of Plaintiff's state common law false imprisonment claim. In support of their argument, the HARP Defendants rely primarily on two cases-Pawlowski v. Smorto, 588 A.2d 36, 41 (Pa. Super. Ct. 1991), and Pennoyer v. Marriott Hotel Servs., Inc., 324 F.Supp.2d 614, 619 (E.D.Pa. 2004).

In response, Plaintiff argues that the cases cited by the HARP Defendants are distinguishable because the claims for which the defendants invoked absolute privilege were defamation claims. Here Plaintiff submits that he is not asserting defamation claims against the HARP Defendants and the HARP Defendants have failed to direct the Court to one case that allows them to invoke absolute privilege from the state law claims that Plaintiff has actually pled in his Amended Complaint. In reply, the HARP Defendants contend that in essence, the privilege does not apply to claims of defamation but instead applies to the allegedly defamatory statements themselves.

In Pawlowski, the Pennsylvania Superior Court recognized that “[i]t has long been the law of Pennsylvania that statements made by judges, attorneys, witnesses and parties in the course of or pertinent to any stage of judicial proceedings are absolutely privileged and, therefore, cannot form the basis for liability for defamation.” 588 A.2d at 41 (citing Binder v. Triangle Pubs., Inc., 275 A.2d 53 (Pa. 1971); Post v. Mendel, 507 A.2d 351 (Pa. 1986); Triester v. 191 Tenants Ass'n, 415 A.2d 698 (Pa. Super. Ct. 1979)). The Superior Court further noted that the privilege is “limited to ‘those communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.'” Id. (quoting Post, 507 A.2d at 355) (emphasis in original). Moreover, the motive of the defendant in making the allegedly defamatory statement does not have any bearing on the existence of the privilege. Id. (citations omitted). Any doubt about whether the alleged defamatory statement was pertinent and material to the relief or redress sought must be resolved in favor of pertinency and materiality. Id. (citing Greenberg v. Aetna Ins. Co., 235 A.2d 576, 578 (Pa. 1967)). The determination of whether a particular statement is absolutely privileged is a question of law for the court to decide. Id.(citing Agriss v. Roadway Express, Inc., 483 A.2d 456 (Pa. Super. Ct. 1984)).

In Pawlowski, the plaintiff sued defendants for defamation based on statements they allegedly made to the district attorney and state police in which they accused plaintiff of perjury. Thus, the issue presented to the court was “whether statements made preliminary to a criminal proceeding, made solely to the officials who might be responsible for prosecuting the criminal charges, and made by private parties for the purpose of initiating the prosecution of those charges, are absolutely privileged.” Id. at 42. The Superior Court answered this question in the affirmative. In the absence of any controlling Pennsylvania law on the issue, the Superior Court turned to the RESTATEMENT (SECOND) OF TORTS, § 587, and in particular, comment b, which provides in relevant part:

A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, . . .

b. The rule stated in this Section is applicable to protect parties to any action before a judicial tribunal. It is immaterial whether the action is criminal or civil in character. Thus the rule applies to a litigant in a civil action, a defendant in a criminal prosecution, or one who, as private prosecutor, formally initiates a criminal action or applies for a search warrant by a written complaint under oath, made to the proper officer, charging another with a crime. It applies to communications made by a client to his attorney with respect to proposed litigation as well as to information given and informal complaints made to a

prosecuting attorney or other proper officer preliminary to a proposed criminal prosecution whether or not the information is followed by a formal complaint or affidavit.

RESTATEMENT (SECOND) OF TORTS, § 587 and comment b (emphasis added).

The Pawlowski court concurred in the above statement of the scope of judicial privilege as applied to private parties involved in providing information to the proper authorities in relation to the suspected commission of a crime, finding that application of the privilege in this situation aligns with the policy of ensuring that free and uninhibited access to the judicial system exists. 588 A.2d at 42. The Superior Court reasoned that even though the statements may have been false or maliciously motivated, they “are deemed absolutely privileged because the policy concerns . . . outweigh the right of the defamation plaintiff to seek redress for harm caused by the statements.” Id.

Similarly, the district court in Pennoyer applied absolute privilege to bar the plaintiff's defamation claim that was predicated on the hotel defendants' statements to the police accusing plaintiff of theft and trespass. 324 F.Supp.2d at 619.

It is important to note that in both Pawlowski and Pennoyer, the allegedly false and defamatory statements made to law enforcement officials were relevant and material to the plaintiff's defamation claim and therefore, were absolutely privileged. Here, the HARP Defendants are arguing that absolute privilege should apply to the allegedly false and defamatory statements they made to law enforcement officials to bar Plaintiff's false imprisonment claim.

The Pennsylvania Supreme Court has not spoken on this precise issue. However, based on existing authority which appears to broadly apply Pennsylvania's privilege immunity to statements made preliminary to judicial proceedings, the Court finds that the Pennsylvania Supreme Court, if faced with this issue, would likely conclude that the statements allegedly made by Defendants Montmeny, Burke, and/or the Doe(s) to Plaintiff's employer and the Pittsburgh Police, which led to criminal charges being filed against Plaintiff, are absolutely privileged. Thus, the only remaining question is whether the statements allegedly made by Defendants Montmeny, Burke and/or Doe(s) are relevant and material to the redress or relief sought, i.e., Plaintiff's false imprisonment claim. See Rose v. Wissinger, 439 A.2d 1193, 1196 (Pa. Super. Ct. 1982)(quoting Greenberg v. Aetna Ins.Co., 235 A.2d 576, 577-78 (Pa. 1967) (“When alleged libelous or defamatory matters, or statements, or allegations and averments in pleadings or in the trial or argument of a case are pertinent, relevant and material to any issue in a civil suit, there is no civil liability for making any of them. Moreover, if questioned or challenged by the opposite party, all reasonable doubts (if any) should be resolved in favor of relevancy and pertinency and materiality.”)(emphasis added); see also Pawlowski, 588 A.2d at 41 (quoting Post, 507 A.2d at 355) (the privilege is “limited to ‘those communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.'”).

In order to answer this question, the Court must examine the elements of a common law false imprisonment claim. To state a claim for false imprisonment under Pennsylvania law, the plaintiff must prove that “(1) Defendant acted with the intent to confine Plaintiff within boundaries fixed by him; (2) Defendant's act directly or indirectly resulted in such confinement; and (3) Plaintiff was conscious of this confinement or was harmed by it.” Pennoyer, 324 F.Supp.2d at 619-20 (citing Gagliardi v. Lynn, 285 A.2d 109, 111 n.2 (Pa. 1971) (other citation omitted)).

Next, the Court must ask whether any of the statements at issue are necessary to prove Plaintiff's false imprisonment claim. The Court finds that it is plausible that accusations of animal cruelty made by Defendants Montmeny, Burke and/or Doe(s) to Plaintiff's employer and the police contributed to Defendant Luffey filing criminal charges against Plaintiff, resulting in his arrest, detainment and prosecution, and therefore, these statements are most likely relevant and material to prove the second element of Plaintiff's false imprisonment claim. Thus, these statements are absolutely privileged and cannot be used to establish the second element of Plaintiff's false imprisonment claim. On the other hand, these statements are not relevant or material to proving the first or third elements of Plaintiff's false imprisonment claim. Nor has Plaintiff alleged any other facts to plausibly establish the first element of his false imprisonment claim. The first element requires that the Defendants intend to confine Plaintiff within boundaries fixed by them, i.e., the HARP facility. None of the factual allegations in the Amended Complaint show or suggest that the HARP Defendants intended to confine him at their facility, or that he was actually confined by them at their facility. As Plaintiff cannot use the HARP Defendants' statements to prove the second element of his false imprisonment claim, and Plaintiff has failed to allege facts to show or suggest that the first element has been satisfied, he has failed to state a plausible claim for false imprisonment against the HARP Defendants. Accordingly, the Court recommends that the motion to dismiss the Pennsylvania common law false imprisonment claim in Count V filed by Defendants Montmeny, Burke and HARP be granted and that claim be dismissed with prejudice as to these Defendants.³

3 The Court recommends dismissal of the false imprisonment claim against Defendants Montmeny, Burke and HARP with prejudice because proof of the second element of that claim is dependent upon the Defendants' statements to the police and Plaintiff's employer, which the Court has found are absolutely privileged. Therefore, it would be futile to allow amendment of this claim. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (finding that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the district court must offer the opportunity to amend unless it would be inequitable or futile to do so).

b. Conspiracy

In Count VI of the Amended Complaint, Plaintiff alleges that the actions of Defendant Luffey and the HARP Defendants constituted a conspiracy to arrest, detain and/or prosecute him, without probable cause. ECF No. 22 at ¶ 114. The actions potentially supporting Plaintiff's conspiracy claim include:

• Defendants Montmeny, Burke and/or Doe(s) contacting Plaintiff's employer and reporting that Plaintiff abused the larger dog at HARP's facility on March 17, 2021 (ECF No. 22 at ¶ 35);

• Defendants Montmeny, Burke and/or Doe(s) contacting the Pittsburgh Police Department and reporting the alleged animal abuse (Id. at ¶ 39);

• Defendants Montmeny, Burke and/or Doe(s) providing HARP's security camera footage showing Plaintiff's interaction with the dog to Defendant Luffey (Id. at ¶ 41);

• Despite being provided with statements from the other police officer witnesses and security camera footage exonerating Plaintiff, Defendant Luffey charged and arrested Plaintiff on several charges of animal cruelty (Id. at ¶ 48);

• Defendant Luffey failing to include the exculpatory evidence in her affidavit of probable cause (Id. at ¶ 51);

• Defendant Luffey including allegedly false information in her affidavit of probable cause (Id. at ¶ 53);

• Defendant Luffey caused the unreasonable seizure of Plaintiff's person and subsequent detainment without probable cause to believe he had committed an act which would justify his detainment (Id. at ¶109);

• Defendant Luffey having a close working and/or personal relationship with HARP and individuals associated with HARP (Id. at ¶ 59);

• Defendant Luffey and Defendants Montmeny, Burke and/or Doe(s), in their capacity as employees and/or representatives of HARP, conspiring to unlawfully arrest, detain and prosecute Plaintiff, without probable cause, and they did so in order to retaliate against him for his reports against HARP (Id. at ¶¶ 62, 110).

In support of their motion to dismiss the common law conspiracy claim, the HARP Defendants submit that the HARP employees' statements to the police, which form the basis of Plaintiff's conspiracy claim to have him falsely imprisoned, are absolutely privileged under Pennsylvania law, based on the holdings in Pawlowski and Pennoyer. According to the HARP Defendants, because the statements are absolutely privileged, it follows then that any conspiracy based on those statements cannot lie. In support, the HARP Defendants cite Rose v. Wissinger, 439 A.2d 1193, 1198-99 (Pa. Super. Ct. 1982), for the proposition that no cause of action for conspiracy can lie where the allegedly defamatory statements were privileged because, as a matter of law, there could be no conspiracy to commit those protected acts. To be clear, the court in Rose held that because there was no basis for the defamation claim due to the privileged nature of the statements, there could not be any conspiracy to commit defamation. Id. at 1199 (emphasis added).

In response, Plaintiff makes the same argument he advanced in opposing Defendants' argument in support of dismissal of his common law false imprisonment claim-that the cases upon which the HARP Defendants' rely are inapplicable because in those cases, the absolute privilege was applied to bar defamation claims which were based on allegedly false and defamatory statements made to law enforcement officials which accused the plaintiff of a crime.

“The essential elements of a claim for civil conspiracy are as follows: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose, (2) an overt act done in pursuance of the common purpose, and (3) actual legal damage.” Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. Ct. 2008)(citing Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa.Super. Ct. 2004); McGuire v. Shubert, 722 A.2d 1087, 1092 (Pa.Super. Ct. 1998)). Moreover, if a civil cause of action for a particular act does not exist, “there can be no cause of action for civil conspiracy to commit that act.” Id. (quoting McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa.Super. Ct. 2000) (citing Pelagatti v. Cohen, 536 A.2d 1337, 1342 (1987))(internal quotation marks omitted).

Here Plaintiff's conspiracy claim is based upon allegations that the actions of Defendants Luffey and Defendants Montmeny, Burker and/or Doe(s) constituted a conspiracy to arrest, detain, and prosecute Plaintiff without probable cause. However, because the Court has found that Plaintiff has failed to state a plausible claim for false imprisonment against the HARP Defendants in Count V of the Amended Complaint, no predicate cause of action exists upon which Plaintiff may assert a claim for civil conspiracy against Defendants Montmeny, Burke, and/or Doe(s). Phillips, 959 A.2d at 437 (quoting McKeeman, 751 A.2d at 660)(if a civil cause of action for a particular act does not exist, “there can be no cause of action for civil conspiracy to commit that act.”). Accordingly, Plaintiff's common law claim for civil conspiracy against Defendants Montmeny, Burke and/or Doe(s) in Count VI of the Amended Complaint fails as a matter of law.

Accordingly, the Court recommends that the motion to dismiss the Pennsylvania common law civil conspiracy claim in Count VI filed by Defendants Montmeny, Burke and HARP be granted and Court VI be dismissed with prejudice as to these Defendants as Plaintiff's common law conspiracy claim fails as a matter of law.

c. Respondeat Superior Liability

Moreover, the HARP Defendants submit that Count VII of the Amended Complaint which alleges respondeat superior liability on the part of HARP for the alleged state law torts and actions of its employees and/or representatives should be dismissed as well. Because the state common law clams of false imprisonment and conspiracy are not actionable, the HARP Defendants argue that vicarious liability cannot exist. The Court agrees and recommends that the HARP Defendants' motion to dismiss Count VII for respondeat superior liability be granted and this claim dismissed with prejudice.

2. Motion to Dismiss - Section 1983 Claims

In Counts I through III of his Amended Complaint, Plaintiff sets forth claims for malicious prosecution, false arrest, and false imprisonment against Defendants Luffey, Montmeny, Burke, and Doe(s) under Section 1983 for alleged violations of his Fourth Amendment rights under color of law. In Count IV, Plaintiff alleges that the actions of Defendants Luffey, Montmeny, Burke and Doe(s) constituted a conspiracy to arrest, detain, and/or prosecute Plaintiff, without probably cause, in violation of Section 1983.

In order to “state a claim of liability under §1983, [a plaintiff] must allege that [he] was deprived of a federal constitutional or statutory right by a state actor.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (citation omitted). Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . ., subjects, or causes to be subjected, any citizen of the United States of any 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....

42 U.S.C. § 1983. Therefore, to state a claim for relief under §1983, a plaintiff must demonstrate both that the defendants were acting under color of state law and that a constitutional violation was directly caused by their conduct. Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).

a. State Actors

The Harp Defendants advance several arguments in support of their motion to dismiss the § 1983 claims. Initially, they submit that they are private entities and persons and as such, do not act under color of state law and therefore are not liable under Section 1983. They further submit that merely providing information to police officers, even if it is false, is not sufficient to convert a private party into a state actor, citing in support Kahermanes v. Marchese, 361 F.Supp. 168, 171 (E.D. Pa. 1973).

In response, Plaintiff argues that although the HARP Defendants are not traditional state actors, the acts of a private party are fairly attributable to the state on certain occasions when the private party acted in concert with state actors, citing in support Rendell-Baker v. Kohn, 457 U.S. 830, 838 n.6 (1982), and Abbott v. Latshaw, 164 F.3d 141, 147-48 (3d Cir. 1998) (“Although not an agent of the state, a private party who willfully participates in a joint conspiracy with state officials to deprive a person of a constitutional right, acts ‘under color of state law' for purposes of § 1983.”). Plaintiff contends that he has alleged sufficient facts to show that Defendants Luffey, a City of Pittsburgh Police Officer, and Defendants Montmeny, Burke and/or Doe(s) conspired to unlawfully arrest, detain, and prosecute Plaintiff, without probably cause, in order to retaliate against him for his prior complaints against HARP.⁴

4 Plaintiff points out that the HARP Defendants do not argue the probable cause existed for his arrest, nor do they argue that Plaintiff failed to plead any other essential element of the Section 1983 claims.

In determining whether a private party can be found to have acted under color of state law, the Supreme Court has “insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). In determining the question of “fair attribution,” the Supreme Court applies a two-step approach:

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible....Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has

acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.

Id. With regard to the second step, one of the ways that a private party can be found to have acted under color of state law is when a private person has jointly participated with, or invoked the aid of, state officials in the prohibited action. Id. at 941 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (holding that a private party's joint participation with a state official in a conspiracy to discriminate on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment was sufficient to find state action for purposes of Section 1983)); see also Cooper v. Muldoon, Civ. No. 05-4780, 2006 WL 1117870, at *2 (E.D.Pa. Apr. 26, 2006)(citing Adickes, 398 U.S. at 152; Dirocco v. Anderson, 655 F.Supp. 594, 596 (E.D.Pa. 1986)) (finding state action where a private entity is shown to have jointly participated or collaborated with State officials to violate the plaintiff's constitutional rights);Pugh v. Downs, 641 F.Supp.2d 468, 474-75 (E.D. Pa. 2009)(“The deciding inquiry was whether the state official surrendered the exercise of its official judgment to a private party, either pursuant to an agreement or statute, thus turning the private party into a state actor.”)(citing Lugar, 457 U.S. 922 (1982) and Cruz v. Donnelly, 727 F.2d 79 (3d Cir. 1984)).

Of particular relevance here, to show joint participation, a plaintiff must allege “the existence of a pre-arranged plan between the police and a private individual or entity by which the police substituted the judgment of private parties for their own official authority.” Castillo v. Guzley, No. 19-cv-4002, 2019 WL 5068571, at *5 (E.D.Pa. 0ct. 8, 2019)(quoting Cruz, 727 F.2d at 80). Merely providing information to police officers does not rise to the level of joint action necessary to convert a private party into a state actor. Cooper, 2006 WL 1117870, at *2. This is true even if the information provided to police officers is false. Simmer v. Kehler, Civ. No. 152285, 2015 WL 6737017, at *3 (D. N.J. Nov. 2, 2015) (citing Collins v. Christie, Civ. No. 064702, 2007 WL 2407105, at *4 & n. 9 (E.D. Pa. 2007)(citing Kahermanes, 361 F.Supp. at 171 (“The deliberate giving of false information by an individual to a police officer to cause the arrest of another does not give rise to a cause of action under the Civil Rights Acts.”)); Gilbert v. Feld, 788 F.Supp. 854, 860 (E.D. Pa. 1992)(“finding no state action where the complaint alleged that the private party provided the District Attorney with ‘false and misleading information in order to instigate criminal charges against the plaintiff.'”)). Thus, the alleged actions by Defendants Montmeny, Burke and/or Does of providing information to Plaintiff's employer and to the City of Pittsburgh Police accusing Plaintiff of animal cruelty, even if statements were false and misleading, are not sufficient on their own to make them state actors.

Nonetheless, “providing false information to the police, coupled with a conspiracy to violate constitutional rights, can transform a private actor into a state actor.” Simmer, 2015 WL 6737017, at *3; see also Abbott, 164 F.3d at 147-48 (“a private party who willfully participates in a joint conspiracy with state officials to deprive a person of a constitutional right acts ‘under color of state law' for purposes of § 1983.”) (citations omitted). In order to state a plausible claim that Defendants Montmeny, Burke, and/or Doe(s) conspired with Defendant Luffey, a police officer, at the pleading stage, Plaintiff must allege “'facts from which a conspiratorial agreement can be inferred.'” Simmer, 2015 WL 673017, at *4 (quoting Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010)). Thus, in order to survive a motion to dismiss, Plaintiff must allege facts to plausibly show an agreement between Defendant Luffey and Defendants Montmeny, Burke, and/or Doe(s) to cause the unlawful arrest, detainment, and prosecution of Plaintiff. Great W. Mining, 615 F.3d at 178. “To properly plead such an agreement, ‘a bare assertion of conspiracy will not suffice.'” Id. (quoting Twombly, 550 U.S. at 556). Rather, “[t]o plead conspiracy adequately, a plaintiff must set forth allegations that address the period of the conspiracy, the object of the conspiracy, and the certain actions of the alleged conspirators taken to achieve that purpose.” Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1166 (3d Cir. 1989), abrogated on other grounds by Beck v. Prupis, 529 U.S. 494 (2000).

In the case at bar, the Amended Complaint sets forth facts from which the period of the conspiracy can be gleaned. Plaintiff alleges that the incident giving rise to this lawsuit occurred on March 17, 2021, and that on April 1, 2021, he was placed on leave as a direct and proximate result of the false and defamatory statements of abuse made by Defendants Montmeny, Burke, and/or Doe(s) to his employer sometime between March 17, 2021 and April of 2021, and that sometime between March 17, 2021 and his arrest on June 10, 2021, the HARP Defendants also contacted the Pittsburgh Police Department and made false and defamatory statements to Defendant Luffey accusing Plaintiff of animal abuse while at HARP's facility on March 17, 2017. See ECF No. 22 at ¶¶ 35, 38, 39, & 48. Thus, it can be inferred from these factual allegations that the period of the conspiracy appears to run from March 17, 2021 up to the date of Plaintiff's arrest on June 10, 2021.

The object of the conspiracy can also be inferred from the factual allegations in the Amended Complaint. Plaintiff asserts that in the past, he reported concerns about HARP's facility to his supervisor and had taken pictures of HARP's garage at the request of his supervisor. Id. at ¶ 61. Plaintiff further asserts that Defendant Luffey, and Defendants Montmeny, Burke and/or Doe(s) conspired to unlawfully arrest, detain, and prosecute him without any probable cause, in order to retaliate against him for his reports against Defendant HARP. Id. at ¶ 62. Moreover, Plaintiff alleges that Defendant Luffey had a close working and/or personal relationship with HARP and individuals associated with HARP. Id. at ¶59. From these allegations, it can be inferred that the object of the alleged conspiracy was to retaliate against Plaintiff for his reports against HARP.

Plaintiff also includes in his Amended Complaint allegations describing the actions taken by the alleged conspirators to achieve the objective described above. For example, Plaintiff alleges that Defendants Montmeny, Burke and/or Doe(s) contacted his employer and reported that he abused the larger dog at HARP's facility on March 17, 2021. Id. at ¶35. In addition, Plaintiff alleges that these Defendants also contacted the Pittsburgh Police Department and made false and defamatory statements accusing Plaintiff of animal abuse to Defendant Luffey. Id. at ¶ 39. Plaintiff further alleges that Defendants Montmeny, Burke and/or Doe(s) provided HARP's security camera footage to Defendant Luffey which showed Plaintiff's interaction with the large dog. Id. at ¶ 41. Despite allegations of substantial exculpatory evidence showing a lack of probable cause to arrest Plaintiff, Defendant Luffey charged and arrested Plaintiff on multiple charges of animal cruelty. Id. at ¶¶ 42, 44-48. In addition, Plaintiff alleges that in Defendant Luffey's affidavit of probable cause, she failed to include the exculpatory evidence while including false information accusing Plaintiff of dragging the dog twenty-five to thirty feet and attributing a preexisting tail injury to his alleged behavior. Id. at ¶ 53. The Court finds that these allegations are sufficient at this stage of the proceedings to infer an agreement to cause Plaintiff's arrest, detainment and prosecution for animal cruelty charges. The Court reaches this conclusion in part due to the allegation that Defendant Luffey was experienced in animal cruelty cases yet ignored substantial exculpatory evidence in order to bring charges against Plaintiff. This allegation, as well as the others cited above, suggest the existence of a pre-arranged plan between Defendant Luffey, a police officer, and private individuals, Defendants Montmeny, Burke and/or (Doe(s), in which Defendant Luffey substituted the judgment of Defendants Montmeny, Burke and/or Doe(s) for her own official authority. As such, the Court concludes that the Amended Complaint sufficiently pleads that the HARP Defendants are state actors for purposes of Plaintiff's Section 1983 claims.

b. The Noerr-Pennington Doctrine

The HARP Defendants attempt to get around this conclusion by arguing that the alleged actions by the HARP Defendants, namely the statements made to Defendant Luffey and Plaintiff's employer, constitute protected First Amendment activity under the Noerr-Pennington doctrine and as such, cannot be considered in determining whether the HARP Defendants are state actors. In response, Plaintiff submits that Pellegrino Food Prods. Co., Inc. v. City of Warren, 136 F.Supp.2d 391, 411-412 (W.D.Pa. 2000), upon which the HARP Defendants rely, did not decide whether private citizens' complaints to the police constituted “petitioning activity” under the First Amendment, and therefore, is inapposite to the case at bar. Alternatively, Plaintiff argues that even if the HARP Defendants' conduct does constitute petitioning activity thus triggering the Noerr-Pennington doctrine, their conduct falls within the doctrine's sham exception.

The Noerr-Pennington doctrine originated more than 57 years ago “when the Supreme Court held in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (“Noerr”), and United Mine Workers v. Pennington, 381 U.S. 657 (1965) (“Pennington”), that an individual is immune from liability for exercising his or her First Amendment right to petition the government.” Barnes Fdn. v. Twp. of Lower Merion, 242 F.3d 151, 159 (2001) (citing Penninton, 381 U.S. at 669-70; Noerr, 365 U.S. at 137-38; City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 379-80 (1991)). These rulings by the Supreme Court were made in the antitrust context involving campaigns by defendants directed toward obtaining governmental action in order to eliminate competition in their respective industries. Id. (citing Pennington, 381 U.S. at 660; Noerr, 365 U.S. at 129).

Moreover, the Supreme Court held that Noerr-Pennington immunity applied regardless of the defendants' motivations for launching their campaigns, “as it recognized that the right of individuals to petition the government ‘cannot properly be made to depend on their intent in doing so.'” Id. (quoting Noerr, 365 U.S. at 139). Also, a plaintiff cannot “defeat a claim of immunity for petitioning activity under the Noerr-Pennington doctrine by merely insisting that the defendants conspired, or agreed with others, to engage in this activity.” Klatch-Maynard v. Sugerloaf Twp., Civ. A. No. 3:06-cv-845, 2010 WL 5789390, at *6 (M.D. Pa. Nov. 8, 2010)(“It is well-settled that there is no ‘conspiracy exception' to the Noerr-Pennington doctrine.”)(citing City of Columbia, 499 U.S. 365).

The Supreme Court and the Third Circuit have expanded the application of the Noerr-Pennington doctrine to contexts other than antitrust. Barnes, 242 F.3d at 159. The Barnes court noted that the Noerr-Pennington doctrine has been applied to civil conspiracy claims by the Supreme Court in NAACP v. Clairborne Hardware Co., 458 U.S. 886 (1982) and by the Third Circuit in Pfizer Inc. v. Giles, 46 F.3d 1284 (3d Cir. 1994), and Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d Cir. 1988) (“Wells”),⁵rendering defendants immune from liability. Barnes, 242 F.3d at 159-60. In addition, it is well settled law in this Circuit that the

5 In Wells, the plaintiff, a nursing home, alleged that the defendants, private citizens who visited the nursing home, engaged in a civil conspiracy with federal and state officials designed to lead to the state revoking its nursing home license. 839 F.2d at 156. The defendants communicated their concerns about the allegedly appalling conditions they observed at the nursing home to federal and state officials. Id. at 157-58. Together with the government officials they sought to have the nursing home decertified. Id. at 158. The Court of Appeals held that based on the Noerr-Pennington doctrine, the defendants were immune from civil conspiracy liability for damages resulting from inducing governmental action. Id. at 160.

Noerr-Pennington doctrine applies to Section 1983 claims. Id. at 162 (dispelling any question that the First Amendment defense under Noerr-Pennington applies to civil rights cases). See also Klatch-Maynard, 2010 WL 5789390, at *5 (applying the Noerr-Pennington doctrine to claims of violations of substantive due process and equal protection rights, conspiracy, and various other state law claims), Report & Recommendation adopted, 2011 WL 532168 (M.D. Pa. Feb. 8, 2011); Mosdos Chofetz Chaim, Inc.. v. Village of Wesley Hills, 701 F.Supp.2d 568, 595 (S.D.N.Y. 2010)(citing cases).

Thus, the threshold question that must be decided is whether the allegedly false and defamatory statements made to Plaintiff's employer and Defendant Luffey constitute “petitioning activity” for purposes of the First Amendment. In Gardner v. Barry, the district court explained:

The Petitions Clause of the First Amendment, unlike the free speech clause, refers to specific conduct in which an individual addresses the government and asks the government “to fix what, allegedly, government has broken or has failed in its duty to repair.” San Filippo v. Bongiovanni, 30 F.3d 424, 442 (3d Cir.1994). Such conduct literally involves petitioning the government, either through formal mechanisms, such as lawsuits, grievances and workers compensation claims, or informal mechanisms, such as letters to the government. Foraker, 501 F.3d at 236-37; see also id. at 235-35 (discussing the history of the Petitions Clause).

Gardner, Civ. A. No. 1:10-cv-0527, 2010 WL 4853885, at *10 (M.D. Pa. Nov. 23, 2010).⁶ Thus, petitioning activity “may include judicial and administrative proceedings, lobbying, and related activities, including publicity campaigns directed toward obtaining governmental action[.]” Methyl Tertiary Butyl Ether Prod. Liab. Litig., Master File No. 1:00-1898, MDL 1358, Case No.14 Civ. 6228, 2021 WL 3371938, at *22 & *23 (S.D.N.Y. Aug. 3, 2021)(applying Pennsylvania law) (internal citations omitted) (finding “'Government Gas' advertisement which exhort[ed] readers to contact their legislators and ask them to vote against specific amendments to the Clean Air Act” constituted political advocacy placed in part to influence government action, and thus was entitled to Noerr-Pennington immunity.) Other examples of petitioning activity include sending letters to city officials regarding a food plant's non-compliant building permit and parking issues, participating in zoning board hearings, and picture-taking for the purpose of presenting evidence to the zoning board. Pellegrino Food Prods., 136 F.Supp.2d at 411-12.

6 The Court notes that the Third Circuit's decision in San Filippo was abrogated on other grounds in Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 383 (2011) (the court of appeals conclusion that the public concern test does not limit Petition Clause claims by public employees is incorrect). To the extent that the court of appeals decision in Foraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007), relied on the rule adopted and explained in San Filippo, its decision in Foraker is also no longer good law. See Guarnieri, 564 U.S. at 385.

The Third Circuit has not yet addressed the question of whether private citizens' complaints to the police constitute petitioning activity protected by the First Amendment. In Pellegrino Food Products, another jurist in this District Court was asked to decide whether neighbors' complaints to the police of noise emanating from a food plant constituted petitioning activity protected by the First Amendment but declined to do so. Id. at 412. Nonetheless, the court concluded that this activity was protected and could not be the basis of the plaintiff's civil rights lawsuit. Id. The court reasoned that:

We find the action of contacting the police to be similar to the conduct in Wells, a case in which the Third Circuit applied the Noerr-Pennington to “action designed to bring a facility's noncompliance with applicable regulations to the attention of the appropriate authorities and to stimulate public interest in the matter.” Wells, 839 F.2d 155 at 159. The court further noted that the conduct on which the suit was based was protected by the “firmly rooted principle, endemic to a democratic government, that enactment of and adherence to law is the responsibility of all.” Id. at 160. We also agree with the Fourth and Ninth Circuits that the public policies served by ensuring the free flow of information to the police are equally as strong as those served by the Noerr-Pennington doctrine, even if the doctrine itself does not cover this activity. See Ottensmeyer v. Chesapeake & Potomac Telephone Co. of Maryland, 756 F.2d 986, 993 (4th Cir.1985) (citing Forro Precision, Inc. v. International Business Machines Corp., 673 F.2d 1045, 1060 (9th Cir.1982), cert. denied, 471 U.S. 1130, 105 S.Ct. 2664, 86 L.Ed.2d 280 (1985)).

Id. Cf. Gable v. Lewis, 201 F.3d 769, 771 (6^th Cir. 2000) (“[T]he California Transport case clearly establishes that the submission of complaints and criticisms to nonlegislative and nonjudicial public agencies like a police department constitutes petitioning activity protected by the petition clause.”) (citing Cal. Transport v. Trucking Unlimited, 404 U.S. 508, 510-11 (1972)(concluding that “the right to petition extends to all departments of the Government.”)).

In light of the above jurisprudence, the Court is not convinced that the HARP Defendants' statements made to Plaintiff's employer, the City of Pittsburgh, and a police officer reporting an alleged violation of the animal cruelty laws by Plaintiff, an animal control officer, constitute petitioning activity protected by the First Amendment Petitions Clause. However, even if it does, the Court finds that the “sham” exception to the immunity conferred by the Noerr-Pennington doctrine applies.

The Supreme Court explained the “sham” exception in City of Columbia:

The “sham” exception to Noerr encompasses situations in which persons use the governmental process-as opposed to the outcome of that process-as an anticompetitive weapon. A classic example is the filing of frivolous objections to the license application of a competitor, with no expectation of achieving denial of the license but simply in order to impose expense and delay. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). A “sham” situation involves a defendant whose activities are “not genuinely aimed at procuring favorable government action” at all, Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500 n. 4 (1988), not one “who ‘genuinely seeks to achieve his governmental result, but does so through improper means,'” id., at 508, n. 10, (quoting Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 827 F.2d 458, 465, n. 5 (9^th Cir. 1987)).

499 U.S. at 380 (internal citations partially omitted). This exception is narrowly construed and must satisfy a demanding two-part test:

First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to

elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant's subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals “an attempt to interfere directly with the business relationships of a competitor,” Noerr, supra, 365 U.S. at 144 (emphasis added), through the “use [of] the governmental process-as opposed to the outcome of that process-as an anticompetitive weapon,” Omni, 499 U.S. at 380 (emphasis in original).

Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993) (internal citations partially omitted). Thus, if the court determines that the petitioning activity conceals an attempt to directly interfere with the business relationships of the competitor through the use of government process, the doctrine does not apply and the petitioning parties may be subject to liability. Pellegrino Food Prods., 136 F.Supp.2d at 413. See also Klatch-Maynard, 2010 WL 5789390, at *7 (quoting King v. Twp. of East Lampeter, 17 F.Supp.2d 394, 413 (E.D. Pa. 1998) (“[A]t bottom, the sham exception applies only when it can be shown that a defendant ‘is simply using the petition process as a means of harassment.'”).⁷

7 The application of the Noerr-Pennington doctrine is not limited to antitrust cases, and neither should the sham exception. The Courts sees no reason why the sham exception cannot be applied in civil rights cases as both Supreme Court and Third Circuit precedent has clearly held that Noerr-Pennington immunity applies to civil rights cases. Moreover, at least one court of appeals has held that the sham exception applied to civil rights cases. Ottensmeyer v. Chesapeake & Potomac Tel.Co. of Md., 756 F.2d 986, 994 (4th Cir. 1985).

In the case at bar, the Amended Complaint adequately alleges facts to show that part one of the sham exception test has been met. Plaintiff pleads numerous examples of exculpatory evidence which plausibly show that probable cause did not exist for his arrest, detainment, and prosecution, and eventually led to dismissal of all of the criminal charges against him. Based on the alleged facts, which the Court accepts as true for purposes of a motion to dismiss under rule 12(b)(6), the Court finds that Plaintiff has plausibly shown that no reasonable person could realistically expect that Plaintiff would be convicted of the crimes with which he was charged given the alleged lack of probable cause and substantial exculpatory evidence and, as such, the petitioning activity was objectively baseless.⁸

8 In their reply brief, the HARP Defendants take issue only with the second prong of the sham exception test. In doing so, they appear to concede that the first prong has been met, as the Supreme Court has made clear that a court may not proceed to the second prong if the first prong has not been met. Pro. Real Est. Invs., 508 U.S. at 60-61.

Having determined that the objective part of the test has been met, the Court turns to the subjective motivation of the petitioning Defendants. In their reply brief the HARP Defendants argue that the sham exception does not apply here because their actions were not designed for some purpose other than to achieve Plaintiff's arrest and prosecution for animal cruelty charges, which is substantiated by Plaintiff's own allegations, citing for example paragraph 62 of the Amended Complaint.⁹ The Court disagrees.

9 Paragraph 62 alleges that “Plaintiff believes, and therefore avers, Defendant Luffey and Defendant Montmeny, Burke and/or Doe(s), in their capacity as employees and/or representatives of Defendant HARP, conspired against the Plaintiff to unlawfully arrest, detain and prosecute the Plaintiff, without any probable cause, in order to retaliate against the Plaintiff for his reports against Defendant HARP.” ECF No. 22 at ¶ 62.

From a review of all the factual allegations pled in the Amended Complaint, it can be inferred that the HARP Defendants were not interested in achieving the outcome of Plaintiff's arrest and prosecution on animal cruelty charges. Rather, the Amended Complaint suggests that the HARP Defendants were interested in using the process to directly interfere with Plaintiff's employment as an animal care and control officer by making allegedly false and defamatory statements to the police accusing Plaintiff of animal cruelty in retaliation against him for reporting issues at HARP's facility. Indeed, the Court of Appeals for the Fourth Circuit has held that if the petitioning party “provided police with deliberately false information solely for the purpose of harassing [plaintiff] or for achieving other ends unrelated to law enforcement, its conduct would unquestionably come with the sham exception.” Ottensmeyer, 756 F.2d at 994. Accordingly, the Court finds that Plaintiff has alleged sufficient facts to plausibly show that the subjective prong of the sham exception has been met. At the very least, the allegations raise issues of fact which cannot be resolved at the motion to dismiss stage.

Accordingly, the Court recommends that the HARP Defendants' motion to dismiss Plaintiff's Section 1983 and federal conspiracy claims based on the Noerr-Pennington doctrine be denied.

c. Whether Pennsylvania's Absolute Privilege Applies to Bar Plaintiff's Section 1983 & Federal Conspiracy Claims

Finally, the HARP Defendants reiterate that as argued above with respect to Plaintiff's state common law false imprisonment and conspiracy claims, see Part II, Section C.1.a, the statements made by the HARP employees to Defendant Luffey are absolutely privileged and cannot provide the basis for these claims. By extension, the HARP Defendants argue that these statements cannot form the basis of a conspiracy upon which Plaintiff can support his Section 1983 claim, citing Rose, 439 A.2d at 1198-99, and Briscoe v. Lahue, 460 U.S. 325 (1983). In response, Plaintiff argues that Briscoe is inapposite to the case at bar, and submits that the Supreme Court's ruling in Malley v. Briggs, 475 U.S. 335 (1986), should apply here. In Malley, the Supreme Court held that the complaining witness did not have absolute immunity from Section 1983 liability. 475 U.S. at 343. The Supreme Court reasoned that the police officer's affidavit in support of an arrest warrant was entitled to only qualified immunity because at common law, a complaining witness was not immune from tort liability for malicious prosecution. Id.

In reply, the HARP Defendants submit that the Court should not rush to conclude that such statements are actionable under Section 1983, as such a holding would require the court to conclude that Pennsylvania law is in conflict with, and preempted by Section 1983, citing in support Johnson v. Fankell, 520 U.S. 911, 922-23 (1997).

The Court does not find any merit to the HARP Defendants' arguments.

In Section 1983 cases, the Supreme Court in Briscoe and the U.S. Court of Appeals for the Third Circuit in Williams v. Hepting, 844 F.2d 138 (3d Cir. 1988), held that absolute immunity applied to witnesses who testified either at trial (Briscoe) or at pre-trial proceedings (Williams).¹⁰In Briscoe, the Court emphasized that it was only deciding “[w]hether a police officer who commits perjury during a state court criminal trial should be granted absolute immunity from civil liability under 42 U.S.C. § 1983.” The Supreme Court answered that question in the affirmative, finding that a police officer providing testimony at trial was no different than any other witness testifying at trial and sworn to tell the truth, and thus, was entitled to absolute witness immunity from subsequent Section 1983 civil liability. 460 U.S. at 342. In reaching that conclusion, the Supreme Court examined the history behind common law witness immunity, noting that “[t]he immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law.” 460 U.S. at 330-31 (emphasis added)(citations and footnote omitted). That examination revealed “no evidence that Congress intended to abrogate the traditional commonlaw witness immunity in § 1983 actions. Id. at 337.

10 The overwhelming majority of the cases applying absolute immunity in Section 1983 cases have involved witnesses who testified either at pre-trial proceedings or at trial in the underlying criminal or civil proceedings. See, e.g., Briscoe, 460 U.S. at 342-43 (finding police officer was entitled to absolute immunity not because of his position in law enforcement but because he testified as a witness in a judicial proceeding); Williams, 844 F.2d at 143 (witness was entitled to absolute immunity from civil liability in a Section 1983 lawsuit for his testimony at plaintiff's preliminary hearing, suppression hearings and trial); Myers v. Morris, 810 F.2d 1437, 1466 (8^th Cir. 1987)(extending absolute immunity to guardians, therapists and attorneys who provided reports and recommendations to family court); Tripati v. I.N.S., 784 F.2d 345, 348 (10^th Cir. 1986)(extending absolute immunity to probation officers who allegedly made false statements in pre-trial bond reports and pre-sentence reports). In addition, the Courts of Appeals for the Second, Sixth and Seventh Circuits have extended absolute immunity from civil liability in Section 1983 cases to witnesses who testify before a grand jury. See Macko v. Byron, 760 F.2d 95, 97 (6^th Cir. 1985; San Filippo v. United States Trust Co., 737 F.2d 246, 254 (2d Cir. 1984); Kincaid v. Eberle, 712 F.2d 1023 (7^th Cir. 1983). Cf. Sprecher v. Graber, 716 F.2d 968, 975 (2d Cir. 1983) (witness immunity applied to bar a civil damages claim against a SEC official for submitting an affidavit that allegedly contained false and perjurious information to the Commission during the course of a corporate investigation).

In Williams, the court of appeals extended absolute immunity to a witness at the pre-trial stage of the judicial process. In doing so, the court of appeals noted that witness immunity is firmly rooted in public policy, which supported this extension:

The function of witnesses is fundamental to the administration of justice. The court's judgment is based on their testimony and they are given every encouragement to make a full disclosure of all pertinent information within their knowledge....“[E]very consideration of public policy requires that they should be as fearless in testifying as the judge and jury are independent in weighing their testimony.”

844 F.2d at 141 (quoting Brawer v. Horowitz, 535 F.2d 830, 837 (3d Cir. 1976) (citations omitted)). The court of appeals in Williams noted that support for extending absolute immunity to witness statements made prior to trial appeared to be universal because “[i]n adversarial pretrial proceedings, as in trials, the witness testifies in court, under oath, under the supervision of the presiding judge and is subject to criminal prosecution for perjury.” Id. at 142 (quoting Holt v. Castaneda, 832 F.2d 123, 125 (9^th Cir. 1987)). The court of appeals further noted:

Witnesses at trial are afforded absolute immunity to encourage complete disclosure in judicial proceedings. The thought is that witnesses should be encouraged to tell all they know without fearing reprisal, because the tools of the judicial process-rules of evidence, cross-examination, the factfinder, and the penalty of perjury-will be able to uncover the truth. See Krohn v. United States, 742 F.2d 24, 31 (1st Cir.1984). The interest in complete disclosure is no less diminished at the pretrial stage, at a preliminary hearing, or at a suppression hearing. The tools of the judicial process are no less present to ferret out the truth at these times. In addition, the criminal defendant enjoys the immediate right at all stages of the judicial process to submit his or her own evidence and to cross-examine the witnesses.

Id. Thus, the safeguards inherent in trial and pre-trial proceedings guard against false witness testimony and provide a remedy against those witnesses who nonetheless choose to testify falsely. Moreover, these safeguards and the policy concerns-ascertainment of the truth without fear of intimidation and self-censorship-have been the underpinnings of common law absolute witness immunity. See Briscoe, 460 at 332-33.

The Court notes that the Supreme Court's examination and discussion of the common law absolute witness immunity in Briscoe did not involve the situation presented here- statements made by private parties to government agencies before criminal charges are even considered or filed. Moreover, this Court is not aware of any cases, let alone controlling Third Circuit or Supreme Court precedent, extending absolute witness immunity from Section 1983 liability to private individuals who provide information to the police falsely accusing an individual of criminal conduct prior to any criminal charges being filed.

In the case at bar, the HARP Defendants are not “witnesses” who testified at trial or a pre-trial proceeding. The absolute witness immunity recognized in both Briscoe and Williams relied on the party's status as a witness at a trial or pre-trial proceeding. Moreover, none of the safeguards discussed in Williams were present here to ensure that the statements provided to government officials were truthful. While the Court recognizes the important public policy behind absolute witness immunity of encouraging witnesses to tell all they know without fear of reprisal, such policy is not served where, as here, individuals are not subject to the tools of the judicial process in which their truthfulness can be challenged and they are subject to the penalties of perjury. In addition, the Supreme Court's reasoning in Malley suggests that absolute immunity does not apply to Section 1983 malicious prosecution claims because at common law, a complaining witness was not immune from tort liability for malicious prosecution. In light of this, as well as the HARP Defendants' statements to government officials were not made as witnesses at a pre-trial proceeding or at trial, the Court finds that absolute witness immunity does not apply to the Section 1983 claims against them.¹¹

11 Moreover, nothing in the English common law examined by the Supreme Court in Briscoe conflicts with the finding here that the statements made to government officials prior to any charges being filed are subject to Section 1983 liability.

This finding does not require the Court to conclude that Pennsylvania law is in conflict with and is preempted by Section 1983 as the HARP Defendants suggest. This action was filed in federal court and jurisdiction is predicated on federal question jurisdiction under 28 U.S.C. §§ 1331 and 1343(3), as it involves claims under a federal statute, 42 U.S.C. § 1983. As such, federal law-the U.S. Constitution, federal statutes, and federal court decisions interpreting them-applies to Section 1983 claims. Moreover, the HARP Defendants' reliance on Johhson v. Fankell to support their conflict/preemption argument is misplaced. In Johnson, the defendant was attempting to employ Section 1983's recognition of the qualified immunity defense to preempt a state's consistent application of its neutral procedural rules, which would require the state to undertake restructuring the operation of its courts. 520 U.S. at 922-23. Thus, Johnson is simply inapposite to the case at bar.

Here the HARP Defendants are asking the Court to apply state common law to Plaintiff's federal claims. While state common law absolute immunity may be applied to Plaintiff's state law claims, the Court is not required to apply state common law to Plaintiff's federal Section 1983 claims. See Howlett v. Rose, 496 U.S. 356, 375-76 (1990)(holding that “[t]he elements of, and the defenses to, a federal cause of action are defined by federal law”) (citing Monessen Sw. R.Co. v. Morgan, 486 U.S. 330, 335 (1988); Chesapeake & Ohio R. Co. v. Kuhn, 284 U.S. 44, 46-47 (1931)); see also McFalls v. 38^th Judicial District, No. 4 M.D. 2021, 2021 WL 3700604, at *10 (Pa. Commw. Ct. Aug. 6, 2021) (citing Howlett, 496 U.S. at 375-83)(finding that “state level sovereign immunity does not protect governmental officials or entities from Section 1983 claims, which are made pursuant to federal law.”). The Supreme Court in Howlett explained:

[A]s to persons that Congress subjected to liability, individual States may not exempt such persons from federal liability by relying on their own common-law heritage. If we were to uphold the immunity claim in this case, every State would have the same opportunity to extend the mantle of sovereign immunity to “persons” who would otherwise be subject to § 1983 liability. States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People.

496 U.S. at 383. Thus, the HARP Defendants may only raise a federal law absolute immunity defense to Plaintiff's Section 1983 claims and as discussed above, neither the Third Circuit nor the Supreme Court has recognized such a defense under the facts presented here.

Accordingly, for the reasons set forth above, the Court concludes that Pennsylvania's absolute privilege does not apply to bar Plaintiff's Section 1983 and federal conspiracy claims. Therefore, the Court recommends that the HARP Defendants' motion to dismiss the Section 1983 and federal conspiracy claims be denied.

3. Motion to Strike

The HARP Defendants move, in the alternative, to strike certain allegations from Plaintiff's Amended Complaint that they contend are immaterial and impertinent to the claims set forth in the Amended Complaint.

First, the HARP Defendants contend that allegations related to the alleged false and defamatory statements made to persons within the Bureau of Animal Care and Control, and/or the loss of Plaintiff's job in paragraphs 39-42 and 64 and Counts I through IV of the Amended Complaint, have nothing to do with the effectuation of Plaintiff's arrest, detention, and prosecution, but rather, relate to his arrest, detention, and prosecution by Officer Luffey. As such, the HARP Defendants submit these allegations are immaterial and impertinent to Plaintiff's Amended Complaint and should be stricken. The Court disagrees.

The allegations referred to in paragraphs 39-42 and 64 and in Counts I through IV most certainly allege actions by Defendants Montmeny, Burke and/or Doe(s) in furtherance of their alleged conspiracy to have Plaintiff arrested, detained and prosecuted. Moreover, as discussed above, these statements are relevant to proving Plaintiff's federal conspiracy claim and to establishing that the HARP Defendants were state actors. See Part II, Section C.2.a. at pp. 22-24, supra. As such, the Court finds that these statements are relevant to the Section 1983 claims against the HARP Defendants.

Next the HARP Defendants contend that Plaintiff's allegations of damages related to the loss of his job and pension in paragraphs 82(e), 93(e), 100(e), and 106(e) of the Amended Complaint should be stricken because Plaintiff elected to dismiss his claims premised upon allegations that his employment was jeopardized as a result of statements made to his employer. Thus, the HARP Defendants maintain that Plaintiff's request for damages relating to the loss of his employment are immaterial and impertinent and should be stricken.

In response, Plaintiff submits that in his Amended Complaint at paragraphs 65-66,¹²82(e), 93(e), 100(e), 106(e) and 118(e),¹³he has clearly pled that as a direct and proximate result of the HARP Defendants' conduct, he suffered economic damages in the form of lost wages and pension to which he should be entitled to compensatory damages. The Court finds that Plaintiff's allegations of damages related to the loss of employment and pension are neither immaterial nor impertinent to the Section 1983 claims against the HARP Defendants.

12 In paragraph 65 of his Amended Complaint, Plaintiff avers that he “was placed on leave and eventually terminated from his position as animal care and control officer for the City of Pittsburgh,” ECF No. 22 at ¶ 65. In paragraph 66, Plaintiff alleges that “[a]s a direct and proximate result of the actions of the Defendants, and each of them, [he] was required to withdraw his pension.” Id. at ¶ 66.

13 In paragraphs 82(e), 93(e), 100(e), and 106(e), Plaintiff sets forth the injuries and damages he claims he suffered as a result of Defendants' actions in Counts I through IV of the Amended Complaint. Paragraph 118(e) also sets for Plaintiff's alleged injuries and damages but that is in relation to his state common law conspiracy claim which this Court has recommended be dismissed with prejudice.

The Amended Complaint clearly alleges that Plaintiff's unlawful arrest, false imprisonment and malicious prosecution were directly and proximately caused by the HARP Defendants who conspired with Defendant Luffey in retaliation for Plaintiff's reports against Defendant HARP. Plaintiff avers that as a direct and proximate result of the defamatory statements made by Defendants Montmeny, Burke, Doe(s), in conspiracy with Defendant Luffey, Plaintiff was criminally charged for crimes he did not commit. ECF 22 at ¶ 64. As a result, he alleges that he was terminated and was required to withdraw his pension. Id. at ¶¶ 6566. As such, Plaintiff submits that his loss of earnings and pension are relevant to determining damages for his Section 1983 claims. The Court agrees.

The cases cited by the HARP Defendants in footnote 11 of their moving brief (ECF No. 29 at 20) are not dispositive here. The Court notes that in Kokinda v. Breiner, 557 F.Supp.2d 581 (M.D.Pa. 2008), the plaintiff brought Section 1983 claims of malicious prosecution, excessive force, failure to train, deliberate indifference, and failure to develop, implement or carry out policies regarding constitutional use of force, arrest, imprisonment and prosecution, for which he allegedly suffered, among other things, “physical injury; pain and suffering; . . . embarrassment, humiliation, and loss of reputation; . . . continued emotional, psychological, and physical distress; impaired professional opportunities and loss of earnings and earning capacity. . .[.]” Id. at 587. The court in Kokinda was not faced with, nor did it decide the issue of whether loss of earnings capacity could be considered in determining damages for violations of Section 1983 in the absence of physical injury; rather, the court was deciding motions to dismiss the Section 1983 claims for failure to state a claim. In the other case cited by the HARP Defendants, McDonald-Witherspoon v. City of Philadelphia, 481 F.Supp.3d 424 (E.D.Pa. 2020), the facts are clearly distinguishable from the case at bar-a detainee on a probation violation with a history of mental illness was found deceased in his cell from an overdose. Id. at 437. The inmate's administratrix filed a complaint asserting several claims including claims for violations of the inmate's Fourteenth Amendment rights and state law claims for false arrest, false imprisonment, malicious prosecution, among other things. Id.at 438. In granting defendants' summary judgment motion on the administratrix's state law claims for false arrest, false imprisonment, and malicious prosecution, and on her Section 1983 claims for deliberate indifference to medical needs, municipal liability, state created danger, violation of the equal protection clause, the court was not asked to decide whether loss of earning capacity could be considered in determining damages in the absence of physical injuries. As such, both Kokinda and McDonald-Witherspoon are not dispositive of whether Plaintiff's allegations of lost earning capacity and pension in the absence of physical injury may be considered in determining damages in Section 1983 cases.

On the other hand, the Court finds some support for finding that allegations of lost wages and pension may be considered in determining damages for a false arrest claim under Section 1983 in Richter v. Pennsylvania State Police, Civ. A. No. 15-775, 2018 WL 6325183 (W.D.Pa. Dec. 4, 2018). In that case, the district court observed:

The Court of Appeals for the Third Circuit has consistently held that “[a] claim for false arrest, unlike a claim for malicious prosecution, covers damages only for the time of detention until the issuance of process or arraignment, and not more.” Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007) (quoting Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998)). The Court finds that this rule draws a distinction between damages proximately caused by a false arrest (pre-arraignment stage), and damages proximately caused by a malicious prosecution (post-arraignment stage). Cf., e.g., Egevary v. Young, 366 F.3d 238, 246-48 (3d Cir. 2004) (discussing application of common law proximate cause principles to

constitutional torts); Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000) (“It is axiomatic that ‘[a] § 1983 action, like its state tort analogs, employs the principle of proximate causation.'” (quoting Townes v. City of New York, 176 F.3d 138, 146 (2d Cir. 1999))); accord Johnson v. Provenzano, 646 Fed.Appx. 279, 282 (3d Cir. 2016). In other words, if an arrest without probable cause proximately causes harm that continues beyond arraignment (for example, a continuing loss of employment or ongoing emotional distress due to the arrest itself), an arraignment does not automatically terminate those continuing damages. However, to recover such damages, a plaintiff must prove that the damages were proximately caused by the false arrest rather than post-arraignment events.

Id. at *3 (emphasis added). This finding by the Richter court suggests that lost wages and other evidence of financial losses may be considered in determining damages in a false arrest claim under Section 1983. Importantly, the Court notes that the plaintiff in Richter did not allege any physical injuries as a direct and proximate result of defendants' actions and omissions in support of her Section 1983 claims for false arrest and malicious prosecution; rather she alleged that she suffered pain, emotional harm/distress, loss of employment and employment opportunities, and financial losses for which she requested compensatory damages, among other things. Civ. A. No. 2:15-cv-775, ECF No. 1 at ¶¶ 33, 41 (W.D.Pa.).

Accordingly, for the reasons set forth above, the Court finds that the allegations the HARP Defendants seek to strike are neither immaterial nor impertinent to Plaintiff's Section 1983 claims against them. Therefore, the Court recommends that the Motion to Strike (ECF No. 28) filed by the HARP Defendants be denied.

III. CONCLUSION

For the reasons stated above, it is respectfully recommended that the Motion to Dismiss the Complaint filed by the Defendants Montmeny, Burke and HARP (ECF No. 28) be granted in part and denied in part. The Court recommends that the Motion to Dismiss be granted as to Plaintiff's Pennsylvania common law claims of false imprisonment, conspiracy, and respondeat superior liability against Defendants Montmeny, Burke and HARP set forth respectively in Counts V, VI, and VII, and that those claims be dismissed with prejudice as to these Defendants.

The Court further recommends that the Motion to Dismiss be denied as to Plaintiff's Section 1983 claims and federal conspiracy claims against Defendants Montmeny, Burke and HARP set forth in Counts I, II, III, and IV.

It is further recommended that the HARP Defendants' Motion to Strike (also filed at ECF No. 28), be denied.