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PALMA v. ATLANTIC COUNTY

June 15, 1999

DENNIS A. PALMA, PLAINTIFF,
v.
ATLANTIC COUNTY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Orlofsky, District Judge.

      OPINION

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. 1998).

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 and 1343.*fn1

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 Palma.

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.

I. BACKGROUND

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
  without foundation.

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.

III. DISCUSSION

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 omitted).

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 retaliatory action").

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 follows:

  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 added).

"Probable cause is defined in terms of facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense." Sharrar, 128 F.3d at 817-18 (citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975)) (additional citations, internal quotations and alterations omitted); see also Luthe, 1999 WL 326724, at * 6. "This standard is meant to safeguard citizens from rash and unreasonable interferences with privacy and to provide leeway for enforcing the law in the community's protection." Sharrar, 128 F.3d at 817-18 (citations omitted); see also Luthe, 49 F. Supp.2d at 388.

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 ...


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