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PALMA v. ATLANTIC COUNTY
June 15, 1999
DENNIS A. PALMA, PLAINTIFF,
ATLANTIC COUNTY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Orlofsky, District Judge.
This civil rights suit alleging claims for the violation of Plaintiff's
First, Fourth, Eighth and Fourteenth Amendment rights requires the Court
to address several difficult issues of law which are unresolved in this
District. First, I must determine the appropriate legal standard to be
applied to a claim for post-conviction malicious prosecution in the wake
of the Third Circuit's decision in Torres v. McLaughlin, 163 F.3d 169 (3d
Cir. 1998). Second, in considering the allegedly perjured grand jury
testimony of a police officer testifying as a complaining witness, I must
reconcile the Third Circuit's holding in Williams v. Hepting, 844 F.2d 138
(3d Cir. 1988), extending absolute witness immunity to pretrial
hearings, with the United States Supreme Court's decision in Malley v.
Briggs, 475 U.S. 335 (1986), holding that police officers acting as
complaining witnesses are only entitled to qualified, and not absolute,
immunity. Third, in determining whether Defendants are entitled to
qualified immunity on Plaintiff's First Amendment claim for retaliatory
prosecution, I must apply the objective reasonableness standard of the
defense of qualified immunity to the wholly subjective element of
Defendants' retaliatory motive as required by the Third Circuit in Larsen
v. Senate of the Commonwealth of Pennsylvania, 154 F.3d 82 (3d Cir.
On August 3, 1998, Plaintiff, Dennis A. Palma ("Palma"), filed an
Amended Complaint alleging claims under 42 U.S.C. § 1983 for
violations of his First, Fourth, Eighth and Fourteenth Amendment rights,
as well as a litany of state common law causes of action. Palma's claims
arise out of his arrest, detention and prosecution for referring to
himself as the "Unabomber" while entering the Atlantic County
Courthouse, located in Atlantic City, New Jersey. Defendants have moved
to dismiss the Amended Complaint for failure to state a claim upon which
relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, asserting numerous defenses to Palma's federal claims,
including the existence of probable cause, respondeat superior
liability, failure to establish municipal liability, absolute immunity
and qualified immunity. The
Court has jurisdiction over this matter pursuant to 42 U.S.C. § 1331
For the reasons set forth below, first, I conclude that, to state a
claim for post-conviction malicious prosecution, a Plaintiff must
allege: (a) the initiation of a criminal proceeding; (b) a seizure within
the meaning of the Fourth Amendment; (c) lack of probable cause; and (d)
termination of the criminal proceeding in the plaintiff's favor. Second,
I conclude that the Third Circuit's extension of absolute witness
immunity applies to adversarial pretrial hearings only, and not to grand
jury proceedings. Thus, under Malley, a police officer testifying as a
complaining witness before a grand jury is entitled only to qualified,
and not absolute immunity from civil liability for his or her allegedly
perjured grand jury testimony. Third, given that the Third Circuit has
recognized that applying the objective reasonableness standard of the
qualified immunity defense to the subjective motivation element of a
claim for retaliation "cannot properly be resolved on the face of the
pleadings," Larsen, 154 F.3d at 94, I shall deny Defendants' motion
without prejudice and permit the parties to conduct discovery limited to
the issue of Defendants' "true motive[,]" Id., as well as the related
issue of whether Defendants could have reasonably, but mistakenly
believed that probable cause existed to arrest, detain and prosecute
Accordingly, I shall grant in part and deny in part Defendants' motion
to dismiss. Specifically, I shall dismiss Palma's Eighth Amendment claim
for cruel and unusual punishment because he has failed to allege a
cognizable violation of the Eighth Amendment. I shall, however, deny
Defendants' motion to dismiss Palma's Fourth Amendment claims because he
has sufficiently alleged the existence of grand jury irregularity in the
filing of the indictment in his criminal prosecution.
In addition, I shall deny Defendants' motion to dismiss the Amended
Complaint on the basis of respondeat superior liability and failure to
establish municipal liability because Palma has sufficiently alleged the
personal involvement and knowing acquiescence of the defendant supervisory
officials, and has alleged the existence of a "policy" of the County and
Sheriff's Department responsible for the deprivation of his
constitutional rights. Furthermore, I shall grant Defendants' motion to
dismiss the Amended Complaint against Defendant, Bentley, to the extent
that Palma seeks to hold her liable for her allegedly perjured trial
testimony because she is absolutely immune from civil liability. With
regard to her allegedly perjured grand jury testimony, however, I shall
deny Defendants' motion because I conclude that police officers
testifying as complaining witnesses before a grand jury are only entitled
to qualified, and not absolute immunity.
Finally, I shall deny without prejudice Defendants' motion to dismiss
the Amended Complaint against the defendant Sheriff Officers on the basis
of qualified immunity, and permit Defendants to renew their motion after
a period of discovery limited to the issues of the defendant Sheriff
Officers' true motive in arresting, detaining and prosecuting Palma, and
whether these defendants could have reasonably believed that probable
cause existed for their actions.
On August 3, 1998, Palma filed a civil rights complaint pursuant to 42
U.S.C. § 1983*fn2 against Defendants, Atlantic County; the Atlantic
County Sheriff's Department ("Sheriff's Department"); James McGettigan,
the Atlantic County Sheriff ("McGettigan"); Sheriff's Officer Jane
Bentley ("Bentley"), Sheriff's Officer Roy C. Trotta ("Trotta"),
Sheriff's Sergeant Jean Santora ("Santora"), Sheriff's Lieutenant Raymond
C. Coleman ("Coleman," collectively "Defendants"), and John Does 1-10,
officers and supervisors of the Atlantic County Sheriff's Department.
See Amended Complaint (filed Aug. 3, 1998). In the Amended Complaint,
Palma alleges that Defendants "deprived [him] of rights secured . . . by
the Constitution of the United States, including . . . his First
Amendment right to freedom of expression, his Fourth Amendment right to
be free from unlawful search and seizure of his person and property, his
Fifth and Fourteenth Amendment rights to due process of law, . . . [and]
his Eighth Amendment right to be free from cruel [and] unusual
punishment. . . ." See Amended Compl., ¶ 34. In addition, Palma
alleges the following state law causes of action against Defendants:
"perjury, false arrest and imprisonment, assault and battery, malicious
prosecution, abuse of process, prima facia [sic] tort, conspiracy tort,
negligence, intentional infliction of emotional distress, negligent
infliction of emotional distress, gross negligence, and outrageous
conduct under the laws of the State of New Jersey." See id., ¶ 39.
Palma also seeks attorneys' fees under 42 U.S.C. § 1988.*fn3 See
id., ¶ 34.
The events giving rise to this case took place on April 26, 1996, at
the Atlantic County Courthouse. See Amended Compl., ¶ 13. On that
date, Palma entered the Atlantic County Courthouse "to prosecute pro se,
a Special Civil Part Complaint." Id. "As part of the proofs in his
Special Civil Part case, [Palma] brought to the courthouse a water
filtration system which he had placed in a cardboard box." Id.
To enter the courthouse, Palma had to proceed through a security check
point. See id., ¶ 14. "As [Palma] entered the initial checkpoint in
the foyer of the courthouse, [Sheriff's Officer] Bentley asked [Palma]
what he had in [the cardboard] box." Id. Palma "voluntarily handed the
box to . . . Bentley . . . and said to her in a joking manner, `What do I
look like, the Unabomber. [sic]'" Id., ¶ 15 (additional quotations
omitted). Bentley "inspected the contents of the . . . [cardboard] box,
told [Palma] he should not be talking like that around the courthouse,
handed the box back to [him], [and] gave [him] directions to the
courtroom . . . where his Special Civil Part action was scheduled to
begin. . . ." Id., ¶ 16.
Palma entered the courtroom and remained there "awaiting . . . his
trial for approximately 45 minutes when [Sheriff's Officer] Trotta
entered the courtroom and told [Palma] he wanted to speak to him
outside." See Amended Compl., ¶ 17. Outside the courtroom, Trotta and
Sheriff's Officer Santora "seized [Palma] and
escorted him to the Sheriff's Office." Id., ¶ 18.
At the Sheriff's office,  Bentley arrested [Palma]. . . ." Id.,
¶ 19. Palma alleges that Defendants, Bentley, Trotta, Santora, and
Coleman, "searched [Palma], fingerprinted him, photographed him, detained
him, and seized the [cardboard box] he had brought to the courthouse to
present in his Special Civil Part case." Id.
Subsequently, Bentley "signed [criminal] complaints against [Palma]
charging him with two indictable offenses, a third degree Terroristic
Threat in violation of [N.J. Stat. Ann. §] 2C:12-3a[,] and one count
of Creating a False Public Alarm, a third degree offense, in violation of
[N.J. Stat. Ann. §] 2C:33-3."*fn4 See Amended Compl., ¶ 20.
"After indictment but before trial, the Atlantic County Prosecutor's
Office downgraded the crimes to Petty Disorderly Persons Offenses[,]
charging [Palma] with Harassment, in violation of [N.J. Stat. Ann. §]
2C:33-4(a) and (c), [and] Disorderly Conduct, in violation of [N.J.
Stat. Ann. §] 2C:33-2A(1)."*fn5 Id., ¶ 21.
On April 8, 1997, Palma was tried on the downgraded offenses before the
Honorable Robert J. Neustadter, J.S.C. See Amended Compl., ¶ 22.
"After testimony of the witnesses and all other evidence was submitted to
the court, Assistant [County] Prosecutor Dana Litke requested that the
court find the plaintiff guilty of a Petty Disorderly [Conduct] Offense
for which he was not charged[, namely, N.J. Stat. Ann. §]
2C:33-2(a)(2)." Id., ¶ 23; see note 5 supra. Judge Neustadter
dismissed the original charges and "followed Litke's recommendation and
found [Palma] guilty[,]" Id., ¶ 24, of "[c]reat[ing] a hazardous or
physically dangerous condition by any act which serves no legitimate
purpose. . . ." See N.J. Stat. Ann. § 2C:33-2(a)(2). Consequently,
Palma was "sentenced to pay a fine of $200, a Violent Crimes Compensation
Board penalty of $50, [a] Safe Neighborhood fee of $75, and was told to
perform 10 hours of community service." See id., ¶ 25.
On May 19, 1997, Palma appealed to the New Jersey Superior Court,
Appellate Division. See Amended Compl., ¶ 26. Palma alleges that:
On . . . February 27, 1998, the Appellate
Division reversed his conviction finding
that there was a total lack of proof to
sustain the conviction and that in the
alternative [it] was error to find [Palma]
guilty of an offense for which he had
never been charged. The Appellate Division
held that the charge and conviction were
See id., ¶ 27 (internal quotations omitted).
In the Amended Complaint, Palma further alleges that:
The detention, arrest, search,
fingerprinting, photographing, seizure
of his personal belongings, swearing
out of a complaint, indicting [Palma],
and otherwise charging [him] with
offenses[,] . . . and forcing [him] to
undergo a trial and an appeal, were all
done without probable cause, legal
justification and/or were unlawful,
and were violative of plaintiff's
Constitutional . . . rights and
privileges. . . . [The] unlawful and
unwarranted treatment to which [Palma]
was subjected was consistent with the
institutionalized practice of the
Atlantic County Sheriff's Department,
which was known to and ratified
by . . . Atlantic County,
the . . . Sheriff's Department,
and . . . McGettigan[,] . . . having
at no time taken any effective action
to prevent personnel from the Sheriff's
Office from continuing to engage in [the
above described] conduct. . . . Atlantic
County, the . . . Sheriff's Department,
and . . . McGettigan and/or . . . authorized,
tolerated as institutionalized practices,
and ratified the misconduct [of the
defendant Sheriff Officers] . . . by:
[failing to discipline the defendant
Sheriff Officers; failing to take
adequate precautions in hiring the
defendant Sheriff Officers; failing to
establish a functioning and meaningful
departmental system for dealing with
complaints of abuse of conduct]. . . .
See Amended Compl., ¶¶ 28-31.
On September 9, 1998, Defendants filed a motion to dismiss the Amended
Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See Notice of Motion (filed Sept. 9, 1998). Defendants contend
that Palma's Amended Complaint fails to state a claim because: (1) Palma
has failed to allege the personal involvement or acquiescence of
McGettigan and Coleman; (2) Palma "has failed to point out a specific
policy which is violative of his constitutional rights[;]" (3) the return
of an indictment against Palma establishes that Defendants acted with
probable cause; (4) insofar as Palma seeks relief based on Bentley's
testimony before the grand jury and the trial court, Bentley is entitled
to absolute immunity; and (5) the defendant Sheriff Officers are entitled
to qualified immunity. See Defendants' Brief in Support of Motion to
Dismiss (filed Sept. 9, 1998) at 4-9 ("Def. Brief"). Palma opposes the
motion. See Plaintiff's Brief in Opposition to Motion to Dismiss (filed
Oct. 6, 1998) ("Pl. Brief").
II. LEGAL STANDARD GOVERNING RULE 12(b)(6) MOTIONS TO DISMISS FOR
FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
"In considering a motion to dismiss under Rule 12(b)(6), the court may
dismiss a complaint if it appears certain that the plaintiff cannot prove
any set of facts in support of [his] claims which would entitle [him] to
relief." Mruz v. Caring, Inc., 39 F. Supp.2d 495, at 499 (D.N.J. 1999)
(Orlofsky, J.) (citing Ransom v. Marazzo, 848 F.2d 398, 401 (3d Cir.
1988)). "While all well-pled allegations are accepted as true and
reasonable inferences are drawn in the plaintiff's favor, the Court may
dismiss a complaint where, under any set of facts which could be shown to
be consistent with a complaint, the plaintiff is not entitled to relief."
Id. (citing Gomez v. Toledo, 446 U.S. 635, 636 100 S.Ct. 1920, (1980);
Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v.
Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990)); see also Conley
v. Gibson, 355 U.S. 41, 45-46
(1957). In addition, "Rule 12(b)(6) authorizes a court to dismiss a
claim on the basis of a dispositive issue of law." Neitzke v.
Williams, 490 U.S. 319, 326-27 (1989) (noting
that this procedure "streamlines litigation by dispensing with
needless discovery and factfinding").
Rule 12(b) of the Federal Rules of Civil Procedure provides that, upon
the filing of a motion for failure to state a claim upon which relief can
be granted, if "matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(b). The
parties must be given adequate notice that the motion to dismiss will be
considered under Rule 56. See Rose v. Bartle, 871 F.2d 331, 342 (3d Cir.
1989); see also Fed.R.Civ.P. 12(b) ("[A]ll parties shall be given
reasonable opportunity to present all material made pertinent to such a
motion by Rule 56.").
Although both parties have submitted exhibits in support of and in
opposition to Defendants' motion to dismiss, I shall not consider these
exhibits in resolving Defendants' motion to dismiss because the parties
have not been notified that the motion will be considered under Rule 56,
and the parties have not been afforded a reasonable opportunity to
present all pertinent material. See Fed. R. Civ. P, 12(b); Rose, 871 F.2d
at 342; see also Section III.C.4.a-b.
A. Palma's Federal Claims
Count one of the Amended Complaint alleges six federal causes of
action, including: (1) a cause of action for retaliatory prosecution for
exercise of the First Amendment right of freedom of expression; (2)
unlawful arrest in violation of the Fourth Amendment; (3) false
imprisonment in violation of the Fourth and Fourteenth Amendments; (4)
pre-conviction malicious prosecution in violation of the Fourth
Amendment; (5) a claim for post-conviction malicious prosecution in
violation of the Fourteenth Amendment;*fn6 and (6) a cause of action for
cruel and unusual punishment in violation of the Eighth Amendment. See
Amended Compl., Count One. Defendants do not specifically address Palma's
claims. See Def. Brief. Rather, Defendants assert a number of defenses
which they contend preclude Palma from stating any federal claim upon
which relief can be granted. See id. Before I can determine whether
Defendants have asserted meritorious defenses, insulating them from
liability, I must first consider whether Palma has sufficiently pled his
§ 1983 causes of action for the deprivation of his First, Fourth,
Eighth and Fourteenth Amendment rights.
1. Retaliatory Prosecution
"[I]nstitution of [a] criminal action to penalize [or in retaliation
for] the exercise of one's First Amendment rights is a deprivation
cognizable under § 1983." Losch v. Borough of Parkesburg, 736 F.2d 903,
907-08 (3d Cir. 1984) (citing Wilson v. Thompson, 593 F.2d 1375, 1377
(5th Cir. 1979)); see also Johnson v. City of Chester, 10 F. Supp.2d 482,
489 (E.D.Pa. 1998) (collecting cases). "Governmental `action designed to
retaliate against and chill political expression strikes at the heart of
the First Amendment.'" Mendicino Environmental Center v. Mendicino
County, 14 F.3d 457, 464 (9th Cir. 1994) (quoting Gibson v. United
States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. denied, 479 U.S. 1054
(1987); see also Larsen v. Senate of the Commonwealth
of Pennsylvania, 154 F.3d 82, 93-94 (3d Cir. 1998). "A plaintiff `may not
recover merely on the basis of a speculative `chill' due to generalized
and legitimate law enforcement initiatives[; h]owever, where a plaintiff
alleges discrete acts of police . . . intimidation directed solely at
silencing' [protected speech], a civil rights claim will lie." Mendicino
Envtl. Ctr., 14 F.3d at 464 (internal citations and alterations
To state a claim for retaliatory prosecution, a plaintiff "must allege
that (i) he has an interest protected by the First Amendment; (ii) the
defendant's actions were motivated by or substantially caused by the
plaintiff's exercise of that right; and (iii) the defendant's action
effectively chilled the exercise of the plaintiff's First Amendment
rights." Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (citations
omitted); cf. City of Chester, 10 F. Supp.2d at 489 (citing Moore v.
Valder, 65 F.3d 189, 195-96 (distinguishing between retaliatory and
malicious prosecution)); cf. Larsen, 154 F.3d at 94 (citing Feldman v.
Philadelphia Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994), for the
proposition that, to state a claim, a plaintiff must allege that the First
Amendment activity was a "substantial motivating factor in the alleged
First, Palma alleges that, as he handed Bentley the cardboard box, he
"said to [her] . . . in a joking manner, `What do I look like, the
Unabomber. [sic]'" See Amended Compl., ¶ 15. Second, Palma alleges
that Defendants initiated a criminal prosecution against him without
probable cause because of his "Unabomber" comment and for the purpose of
preventing him from making similar such "jokes" in the future. See id.,
¶ 16 (alleging that Bentley "told [Palma] he should not be talking
like that around the courthouse"), 18-31.
Finally, in Losch, the Third Circuit observed that criminal prosecution
because of speech by definition has a "chilling" effect. Losch, 736 F.2d
at 912 (stating "[t]he Supreme Court has clearly held that prosecution of
a citizen for `nonprovocatively voicing his objection' to police conduct
impermissibly punishes constitutionally protected speech") (quoting
Norwell v. City of Cincinnati, 414 U.S. 14, 16 (1973)). Thus, in this
case, it is apparent that the arrest and prosecution of Palma "chilled"
his protected speech.
Therefore, while Palma's "joke" regarding the security measures
employed by the Atlantic County Courthouse may have been in poor taste,
given that it came close on the heels of the arrest of the actual
"Unabomber" in April, 1996, and not long after the bombing of the federal
courthouse in Oklahoma City in April, 1995, his comment, as alleged,
cannot reasonably be construed as "likely to produce a clear and present
danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest." City of Houston v. Hill,
482 U.S. 451, 461 (1987) (quoting Terminiello v. Chicago, 337 U.S. 1, 4
(1949)); cf. United States v. Kosma, 951 F.2d 549, 553 (3d Cir. 1991)
(discussing the difference between a true threat which the Government may
proscribe and a statement protected by the First Amendment); see also
R.A.V. v. City of St. Paul, 505 U.S. 377, 383-84 (1992) (discussing the
scope of protected and unprotected expression, and the narrowness of the
categories of unprotected expression). Clearly, Defendant, Bentley, did
not take seriously Palma's comment that he was the "Unabomber." If she
had, Bentley certainly would not have "handed the box back to [Palma],
[giving him] directions to courtroom 1C. . . ." See Amended Compl.,
¶ 16. Accordingly, taking all of the facts alleged in the Amended
Complaint to be true, as I am required to do in resolving Defendants'
motion to dismiss, Ransom, 848 F.2d at 401, I conclude that Palma has
sufficiently asserted a violation
of his First Amendment right of freedom of expression.
2. Cruel and Unusual Punishment
In the Amended Complaint, Palma alleges that Defendants' actions
deprived him of "his Eighth Amendment right to be free from cruel or
unusual punishment[.]" Amended Compl., ¶ 34. Palma, however, does not
allege what the cruel and unusual punishment was. Presumably, Palma
contends that any punishment imposed by a trial court after conviction is
cruel and unusual, if the underlying conviction is later invalidated on
appeal. Such a contention demonstrates a complete misunderstanding of the
Supreme Court's Eighth Amendment jurisprudence.
In Whitley v. Albers, 475 U.S. 312 (1986), the United States Supreme
Court discussed the protections afforded by the Eighth Amendment as
The language of the Eighth Amendment,
"[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel
and unusual punishments inflicted,"
manifests "an intention to limit the
power of those entrusted with the
criminal-law function of government."
Ingraham v. Wright,
430 U.S. 651, 664 (1977). The Cruel and Unusual
Punishments Clause "was designed to
protect those convicted of crimes,"
id., and consequently the
Clause applies "only after the State
has complied with the constitutional
guarantees traditionally associated
with criminal prosecutions." Id.
at 671, n. 40; see also Revere
v. Massachusetts General Hospital,
463 U.S. 239, 244(1983); Bell v. Wolfish,
441 U.S. 520, 535, n. 16 (1979). . . .
Not every governmental action affecting
the interests or well-being of a
prisoner is subject to Eighth Amendment
scrutiny, however. "After incarceration,
only the `"unnecessary and wanton
infliction of pain"' . . . constitutes
cruel and unusual punishment forbidden
by the Eighth Amendment." Ingraham v.
Wright, 430 U.S. at 670 (quoting Estelle
v. Gamble, 429 U.S. 97, 103 (1976)
(citations omitted). To be cruel and
unusual punishment, conduct that does
not purport to be punishment at all must
involve more than ordinary lack of due
care for the prisoner's interests or safety.
Whitley, 475 U.S. at 318-19.
Thus, to the extent that Palma seeks to allege a § 1983 claim
arising out of Defendants' actions prior to his conviction, Palma fails
to state a cognizable claim under the Eighth Amendment. Id.; see also
Rodriguez v. City of Passaic, 730 F. Supp. 1314, 1319 (D.N.J. 1990)
(Barry, J.) (quoting City of Revere, 463 U.S. at 244, for the proposition
that "the State does not acquire the power to punish with which the
Eighth Amendment is concerned until after it has secured a formal
adjudication of guilt . . ."); accord Ingraham, 430 U.S. at 671-72.
In addition, to the extent that Palma seeks to assert an Eighth
Amendment claim arising out of his sentence on the conviction for a
disorderly persons offense, he fails to state a claim. After his
conviction, Palma "was sentenced to pay a fine of $200, a Violent Crimes
Compensation Board penalty of $50, Safe Neighborhood fee of $75, and was
told to perform 10 hours of community service." See Amended Compl.,
¶ 25. This light, non-custodial sentence cannot reasonably be
construed as the "unnecessary and wanton infliction of pain
constitut[ing] cruel and unusual punishment forbidden by the Eighth
Amendment." Whitley, 475 U.S. at 318-19 (internal quotations,
alterations, and citations omitted). The Eighth Amendment does not
provide a cause of action for every criminal defendant whose conviction
and sentence has been invalidated on appeal. Rather, the
Eighth Amendment serves to protect prisoners, entrusted to the custody of
the State, from abuse by their jailers. See Whitley, 475 U.S. at 318-19.
Therefore, because the facts as alleged in the Amended Complaint do not
rise to the level of a cognizable Eighth Amendment violation, I shall
grant Defendants' motions to dismiss this cause of action.
3. Palma's Fourth Amendment Claims
Palma seeks to allege three causes of action under the Fourth
Amendment: (1) unlawful arrest; (2) false imprisonment;*fn7 and (3)
pre-conviction malicious prosecution. See Amended Complaint, ¶ 34.
Each of these claims require Palma to establish that Defendants acted
without probable cause. See Luthe v. City of Cape May, 1999 WL 326724, at
*6, *8 (citing Sharrar v. Felsing, 128 F.3d 810, 817-18 (3d Cir. 1997);
Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995); Lee v.
Mihalich, 847 F.2d 66, 69-70 (3d Cir. 1989)). In support of their motion
to dismiss, Defendants contend that Palma's admission in the Amended
Complaint, that a grand jury indicted him on the offenses of making
terroristic threats and creating a false public alarm, conclusively
establishes that probable cause existed to arrest, detain and prosecute
Palma, thus preventing him from stating a claim upon which relief can be
granted. See Def. Brief at 6-7; see als Amended Compl., ¶ 21.
To state a § 1983 claim for unlawful arrest, a plaintiff must plead
that he was arrested by a State actor without probable cause. Sharrar,
128 F.3d at 817-18. In addition, "where the police lack probable cause to
make an arrest, the arrestee [also] has a claim under § 1983 for
false imprisonment based on a detention pursuant to that arrest."
Groman, 47 F.3d at 636 (citing Thomas v. Kipperman, 846 F.2d 1009, 1011
(5th Cir. 1988)). Conversely, by definition "an arrest based on probable
cause [can]not become the source of a claim for false imprisonment [or
unlawful arrest]."*fn8 Id. (citing Baker v. McCollan, 442 U.S. 137, 142
(1979)); see also Sharrar, 128 F.3d at 817-18.
As with his claims for unlawful arrest and false imprisonment, to state
a claim for malicious prosecution, Palma must allege that Defendants
initiated the criminal prosecution without probable cause. See Luthe,
1999 WL 326724, at *11. Specifically, to sufficiently plead "a § 1983
claim for malicious prosecution under the Fourth Amendment, . . . [Palma]
must [allege that]: (1) [D]efendants initiated a criminal proceeding
against the plaintiff; (2) which resulted in a seizure; (3) the criminal
prosecution ended in [Palma's] favor; (3) the criminal prosecution was
initiated without probable cause; and (4) [D]efendants acted maliciously
or for a purpose other than bringing the criminal defendant to justice."
Luthe, 1999 WL 326724, at *11 (citing Gallo v. City of Philadelphia,
161 F.3d 217, 222 (3d Cir. 1998); Lee, 847 F.2d at 69-70) (emphasis
In § 1983 actions, "a grand jury indictment or presentment
constitutes prima facie evidence of probable cause to prosecute. . . ."
Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989). At the pleading stage,
"this prima facie evidence may be rebutted by [allegations] that the
presentment was procured by fraud, perjury or other corrupt means." Id.
(stating that the allegations ...