Boyle v. Evanchick

Decision Date19 March 2020
Docket NumberCIVIL ACTION No. 19-3270
PartiesASHLEY BOYLE, on her own behalf, and on behalf of JOHN DOE, her minor child, Plaintiffs, v. ROBERT EVANCHICK, ET AL., Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

McHUGH, J.

MEMORANDUM

This civil rights action arises out of an altercation between two students at a grade school. Only one of the students engaged in violent acts, but both were prosecuted, with the victim of the assault accused of the summary offense of disorderly conduct for uttering racial epithets that purportedly provoked the attack. The charge was dismissed at trial by the judge presiding over the case, and the mother of the child now brings a variety of claims.

Specifically, Plaintiff Ashley Boyle brings claims under 42 U.S.C. § 1983 for malicious prosecution; failure to abide by the requirements of Brady v. Maryland regarding the production of exculpatory evidence; suppression of and retaliation against free speech in violation of the First Amendment; and separate state law claims for malicious prosecution, intentional infliction of emotional distress, and negligence. Defendants respond by invoking a combination of absolute, qualified, and sovereign immunity defenses.

The injuries suffered by Ms. Boyle's son are deeply regrettable, and I harbor significant doubts regarding the wisdom of criminally charging the victim of a serious attack, especially when video evidence demonstrates he did not act aggressively at any point. Nevertheless, Plaintiffs' claims must fail. Their attempt to assert federal malicious prosecution claims under the Fourteenth Amendment, but they must be properly analyzed under the Fourth Amendment, and Doe cannot be said to have been "seized" as required by the controlling standard. Doe also cannot show the prejudice required to establish a Brady violation. Plaintiffs' First Amendment claims are defeated by the existence of probable cause, or in the alternative, qualified immunity. Finally, Plaintiffs' intentional infliction of emotional distress and negligence claims are governed by state law, and as pled they are barred by sovereign immunity. Accordingly, I am compelled to grant Defendants' Motion to Dismiss.1

I. Relevant Background

John Doe is a white 12-year old child who attends school in Chester County, PA. Am. Compl. ¶ 2, ECF 6; Def. Mot. to Dismiss, at 4, ECF 10-1. On December 7, 2018, Doe was lining up for lunch at school when he and a group of other students had a confrontation. Am. Compl. ¶ 18. There is video of the altercation which all parties have been able to review by now, but it does not contain audio. Id. Doe can be seen talking with the group, including his "Assailant" (who is black).2 The verbal confrontation escalated into a physical fight, with one student shoving Doe and then Assailant punching Doe multiple times in the face. Id. ¶ 19; Def. Mot. to Dismiss, at 3. Doe suffered serious injuries as a result, including a broken nose and a concussion. Am. Compl. ¶ 21.

The school's dean of students (Dean) investigated the incident and found that Doe and Assailant had exchanged abusive language with one another. Def. Ex. B., ECF 11.3Specifically, Assailant admitted that he called Doe a "gay asshole," while Doe admitted he had called Assailant a "lip fuller poster child" and a "prick." Id. There was a dispute as to whether Doe called Assailant a "n****r"; four students interviewed by the Dean claimed to have heard him utter the slur, and four other students claimed not to have heard it. Id.

After reviewing the investigative summary contained in the Dean's Report and the video, Pennsylvania State Police Trooper Ryan R. McKeon, in consultation with supervisor Cpl. Robert S. Kirby, charged Doe with a summary offense of disorderly conduct under 18 Pa. C.S. § 5503(a)(4). Am. Compl. ¶ 22. This review by the State Police did not occur until well after the event. Doe has not alleged that he was arrested or detained pursuant to the charge. In the summons issued to Doe, Trooper McKeon wrote that "the def[endant] did express profane language and insults that were offensive to the victim." Id. Doe pleaded not guilty to the charge, and retained the same counsel representing him in this action to defend him against the summary charge. Id. ¶¶ 22, 25. Counsel contacted Kirby to request the production of exculpatory materials pursuant to Brady and Pennsylvania Rule of Criminal Procedure 573, including the video of the altercation, but Kirby did not provide counsel with any such materials. Id. ¶¶ 26-28.

Doe's criminal trial was held on March 5, 2019. Id. ¶ 34. While Trooper McKeon was being cross-examined by counsel, the presiding judge sua sponte entered a ruling of "not guilty" for Doe. Id. ¶¶ 47-49. Plaintiffs now sue for malicious prosecution, alleging that a violation of 18 Pa. C.S. § 5503(a)(4) "requires actions, not words," and that State Police Defendants engagein "a custom, pattern, practice and/or policy of failing to train State Police troopers about the proper use of the disorderly conduct statute," as exemplified by Doe's prosecution for public profanity. Id. ¶¶ 61-62 (emphasis in original). Moreover, Plaintiffs contend that Defendants have disregarded two settlement agreements in which they agreed to discontinue the practice of charging defendants with violation of 18 Pa. C.S. § 5503 for the use of profane language. Id. ¶¶ 65-67. Defendants disagree with Plaintiffs' characterization of how 18 Pa. C.S. § 5503 can be enforced, arguing that words alone may at times be enough to give rise to a violation.

II. Standard of Review

In this Circuit, motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) are governed by the well-established standard set forth in Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

III. Discussion
A. Plaintiffs cannot show that Doe has been "seized" as required to plead malicious prosecution pursuant to 42 U.S.C. § 1983

1. The malicious prosecution claim must be analyzed under the Fourth Amendment

Under the Third Circuit's standard for successfully pursuing a Section 1983 action for malicious prosecution, a plaintiff must show: (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 a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). Recognizing the obstacle presented by the fifth required element of Doe's claim, deprivation of liberty, Plaintiffs seek to proceed under the Fourteenth Amendment Due Process Clause instead. They principally rely upon Justice Kennedy's concurring opinion inAlbright v. Oliver, 510 U.S. 266 (1994), in doing so. In Albright, the plaintiff was the subject of an arrest warrant. Upon learning of it, he surrendered and was released on bail. The charges were then dismissed. The accused then brought a Fourteenth Amendment claim asserting a liberty interest to be free from prosecution except for probable cause.4

The Court denied relief, without a majority opinion.5 In his concurrence, Justice Kennedy assumed "for the purposes of this case" that freedom from malicious prosecution is protected by the Due Process Clause, Albright, 510 U.S. at 286 (Kennedy, J., concurring), but further concluded that because Mr. Albright could have pursued a post-deprivation remedy for malicious prosecution under Illinois state law, he would be foreclosed from bringing a corresponding § 1983 action. Id. Plaintiffs attach great significance to this language, arguing that because Pennsylvania does not provide a post-deprivation remedy for the tort of malicious prosecution, Doe is therefore entitled to bring a claim under the Fourteenth Amendment without an arrest or seizure having taken place. As an initial matter, I am not persuaded that Justice Kennedy intended this language to carry the substantive import that Plaintiffs seek to attach to it. Rather, in my view, he was simply narrowing the scope of the issue before him.

To interpret this language as Plaintiffs propose would mean that a new constitutional cause of action is born whenever a state law remedy is lacking. Such a principle would make no sense. Furthermore, the Third Circuit had occasion to consider Albright, and has interpreted it to mean that plaintiffs pursuing malicious prosecution claims under § 1983 must demonstrate that they have been wrongfully subjected to a Fourth Amendment seizure. Specifically, it has heldthat "the constitutional violation is the deprivation of liberty accompanying the prosecution," and thus "a plaintiff asserting a malicious prosecution claim must show some deprivation of liberty consistent with the concept of 'seizure.'" Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998) (citations omitted) (emphasis added). Consequently, "prosecution without probable cause is not, in and of itself, a constitutional tort." Id. In support of this reading of Albright, the Third Circuit took note of Justice Stevens's robust dissent arguing that initiating a prosecution without probable cause should give rise to a Fourteenth Amendment due process violation. That dissent was even more supportive of Plaintiffs' argument than Justice Kennedy's analysis. Gallo, 161 F.3d at 222 n.5. In short, the Third Circuit was fully aware of both Justice Kennedy's concurrence and Justice Stevens's dissent in Albright when it decided Gallo and did not adopt the model Plaintiffs advance here. Thus, Gallo controls, and reaffirms the Fourth Amendment standard.6

2. Doe has not experienced Fourth Amendment "seizure"

Under the controlling Fourth Amendment standard, Plaintiffs cannot establish that a seizure occurred. A seizure is "a show of authority that restrains the liberty of a...

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