Losch v. Borough of Parkesburg, Pa.

• Citation: 736 F.2d 903
• Decision Date: 14 June 1984
• Docket Number: No. 83-1549,83-1549
• Parties: Frank A. LOSCH, Appellant, v. BOROUGH OF PARKESBURG, PENNSYLVANIA; Lester J. Thomas, individually and as Chief of Police of the Borough of Parkesburg, Pennsylvania, and Andrew H. Wilson, III, individually and as a Patrolman for the Borough of Parkesburg, Pennsylvania.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 903

736 F.2d 903

Frank A. LOSCH, Appellant, v. BOROUGH OF PARKESBURG, PENNSYLVANIA; Lester J. Thomas individually and as Chief of Police of the Borough of Parkesburg, Pennsylvania, and Andrew H. Wilson, III individually and as a Patrolman for the Borough of Parkesburg, Pennsylvania.

No. 83-1549.

United States Court of Appeals Third Circuit.

Argued Feb. 28, 1984.

Decided June 14, 1984.

Justin J. McCarthy (argued), Dennis D. Brogan, Wusinich & McCarthy, West Chester, Pa., for appellant.

John Churchman Smith (argued), Gibbons, Buckley, Smith, Palmer & Proud, P.C., Media, Pa., for appellees.

Before ADAMS and SLOVITER, Circuit Judges, and TEITELBAUM, District Judge ^*.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This is an appeal from a grant of summary judgment for the defendants in an action brought under 42 U.S.C. Sec. 1983. The appellant claims that defendants violated his First, Fourth and Fourteenth Amendment rights by initiating criminal prosecution against him maliciously and without probable cause. The district court found that there was no genuine issue of fact regarding the defendants' motivation and that the individual defendants were entitled to qualified immunity. We affirm as to the Borough and reverse as to the individual defendants.

I. Facts and Procedural History

The prosecution that forms the basis for this suit charged appellant Frank A. Losch with harassing and threatening a police officer by means of a note that Losch addressed to Officer Andrew H. Wilson, III, of the Parkesburg, Pennsylvania, police department. That note was taped to the front door of the Borough police station on July 19, 1980 at appellant's request by one of his sons. The note said:

Officer Wilson, I strongly advise you to stop picking on my wife and children and accepting information which is not true. I have intentions of taking this matter before the County District Attorney's Office and having you arrested for a number of offenses. Respectfully yours, Frank A. Losch.

The note was predicated on three earlier contacts between Wilson and members of the Losch family. In the first, in November 1979, Officer Wilson issued six citations to Losch's son Bruce. The citations, most of them for traffic violations, were dismissed when Wilson failed to appear in time for the hearing. Shortly afterward, Wilson, who had missed other hearings in the past year, was suspended by the Mayor for three days without pay. Several months later, Drew Losch, another of Frank Losch's sons, was charged with the burglary of two Parkesburg residences and the theft of motorcycles and a go-kart. Officer Wilson investigated the case and referred it to the County juvenile authorities. In the third incident, Wilson issued a citation for disorderly conduct against Losch's wife, Dorothy, after a neighbor complained that Mrs. Losch had used obscene language and a racial epithet. When Frank Losch wrote the note to Wilson, charges were still pending against his wife and his son Drew. Several weeks later, Losch paid his wife's fine; the charges against Drew were dropped when the youth who had implicated him, and who pleaded guilty to charges of juvenile delinquency, refused to testify against him.

Upon receiving Losch's note, Wilson consulted Pennsylvania District Justice Carl Henry, and thereafter drafted charges that Losch violated two Pennsylvania statutes by writing the note. These provide, in relevant part:

Sec. 5504. Harassment by communication or address

(a) Offense defined--A person commits a misdemeanor of the third degree, if, with intent to harass another, he:

(1) makes a telephone call without intent of legitimate communication or addresses to or about such other person any lewd, lascivious or indecent words or language or anonymously telephones another person repeatedly....

18 Pa.C.S.A. Sec. 5504(a)(1) (Purdon 1983).

Sec. 4702. Threats and other improper influence in official and political matters

(a) Offenses defined--A person commits an offense if he (1) threatens unlawful harm to any person with intent to influence his decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter....

18 Pa.C.S.A. Sec. 4702(a)(1) (Purdon 1983).

The Police Chief, Lester J. Thomas, conferred with Wilson and Henry, and then signed a complaint charging Losch under both statutes. At Losch's arraignment before District Justice Henry, bail was set at $1.00 and Losch was ordered to report his whereabouts to the bail agency once a week. At a subsequent hearing before another district justice, the Assistant District Attorney moved to withdraw the charges against Losch for insufficient evidence. Instead the district justice, on the motion of Losch's attorney, dismissed the charges.

Losch then filed this Sec. 1983 action against the Borough of Parkesburg, Police Chief Thomas and Officer Wilson claiming that they prosecuted him maliciously and without probable cause. The complaint alleged that Thomas and Wilson prosecuted Losch in retaliation for Wilson's suspension and in "an attempt to suppress and to abridge Plaintiff's right to make reasonable comment concerning the manner in which public officials discharged their public duties ...." The complaint also included a pendent state claim for malicious prosecution.

The district court held that the Borough could not be liable on a respondeat superior theory, observing that local governments may be sued under Sec. 1983 only for acts implementing an official policy or custom. Losch v. Borough of Parkesburg, 566 F.Supp. 282, 285 (E.D.Pa.1983). The district court also rejected Losch's claim that the Borough was negligent in hiring and supervision. Id. As to the individual defendants, the district court found no evidence to support a finding that they acted in bad faith. Id. at 288.

II. Claims Against Individual Defendants

In granting summary judgment for the individual defendants, the district court stated that "there are no material facts in dispute and no evidence on which a jury might reasonably find the officers acted maliciously or in bad faith." 566 F.Supp. at 288. When a Sec. 1983 action is based on defendants' misuse of the criminal process by the initiation of criminal charges against plaintiff without probable cause or for personal animosity, as alleged in this case, it is necessary to distinguish between the alleged lack of probable cause or malice underlying the criminal charges as an element of plaintiff's substantive Sec. 1983 claim, and the allegation of malice sufficient to preclude defendants from summary judgment on their qualified immunity defense. The issues are analytically distinct, see Barker v. Norman, 651 F.2d 1107, 1123-24 (5th Cir.1981); S. Nahmod, Civil Rights & Civil Liberties Litigation Sec. 3.02, at 64 (1979), although the parties in this case have not always observed the distinction. Since it is also unclear whether the district court found that there were no material fact issues on plaintiffs' substantive Sec. 1983 claim or on defendants' entitlement to the qualified immunity defense, we will consider each issue separately. We turn first to the question of plaintiff's Sec. 1983 claim itself.

Losch contends that the criminal complaint against him was not based upon probable cause but rather that the charges were brought to satisfy Wilson's and Thomas' desire to "get" him for writing the letter and causing them annoyance and embarrassment, in violation of his Fourth and Fourteenth Amendment rights to be free from arrest without probable cause. He further claims that defendants were penalizing him for the exercise of his First Amendment rights.

It is clear that the filing of charges without probable cause and for reasons of personal animosity is actionable under Sec. 1983. Inada v. Sullivan, 523 F.2d 485, 487-88 (7th Cir.1975); see also Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir.1978). Similarly, institution of criminal action to penalize the exercise of one's First Amendment rights is a deprivation cognizable under Sec. 1983. Wilson v. Thompson, 593 F.2d 1375, 1377 (5th Cir.1979).

Defendants, of course, respond that they had probable cause to institute the criminal charges. The question before us is whether the grant of summary judgment on this issue was appropriate. Resolving all doubts in Losch's favor, we must decide whether, on the probable cause issue, there was before the district court "no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); see, e.g., Ettinger v. Johnson, 556 F.2d 692, 696-97 (3d Cir.1977). Any credible evidence contrary to the moving party's version of events will defeat the summary judgment motion. We must evaluate for some minimal showing of credibility any evidence that the defendants did not have probable cause to charge Losch under the two Pennsylvania statutes.

Appellant contends that an examination of the statutory provisions and their interpretation in Pennsylvania could lead no reasonable police officer to conclude they were applicable to Losch. We cannot view this contention as without substance. The statutory offense of "Harassment by communication or address" applies to a person who, "with intent to harass another ... addresses to or about such other person any lewd, lascivious or indecent words or language or anonymously telephones another person repeatedly ...." 18 Pa.C.S.A. Sec. 5504(a)(1). The only language conceivably relevant to the note written by Losch is the prohibition against addressing "indecent words" to another--a prohibition that at least one expert witness said could not reasonably apply to Losch's message. Indeed, the Pennsylvania Superior Court, in construing this statute, has said, "We should be extremely reluctant to infer a criminal intent to harass solely from the filing of complaints with appropriate government agencies and the making of telephone calls during regular office hours lest we impermissibly chill a citizen's constitutional...