Deforte v. Borough of Worthington (364 F. Supp. 3d 458, 2019)

Mark R. Hornak, Chief United States District Judge Plaintiff William DeForte was fired from his position as Chief of Police of Worthington Borough after failing to provide security for the town's annual Halloween Parade. The Pennsylvania State Police, acting on information provided by Borough officials, then investigated a series of suspicious firearms transfers, stolen police radios, and stolen cash from a prostitution sting operation. This investigation ultimately led the Armstrong County District Attorney's Office to charge Plaintiff with multiple theft-related crimes. The charges were eventually dropped, and Plaintiff sued several Borough officials and the Pennsylvania State Police Corporal responsible for the investigation under federal and state law. Under Plaintiff's theory, the Defendants knowingly fabricated inculpatory evidence and ignored exculpatory evidence in an effort to destroy Plaintiff's career as a police officer. Defendants have moved for summary judgment on all of Plaintiff's claims. For the reasons that follow, Defendants' motions will be granted.

I. BACKGROUND

A. Facts

The following material facts are undisputed unless otherwise noted.

i. Worthington Borough and the Parties

Worthington Borough has a population of between 500 and 600 people and occupies an area of less than one square mile. (Defs.' Joint Statement of Undisputed and Material Facts ("Defs.' SUMF"), ECF No. 108, ¶ 5; Plaintiff's Response to Defendant's Joint SUMF ("Pl.'s Response"), ECF No. 147, ¶ 5.) Plaintiff William DeForte was the Chief of Police of the Worthington Borough Police Department ("Worthington PD" or "Department") from March, 2010, to October, 2012. (Defs.' SUMF, ¶¶ 1, 7.) Defendant Kevin Feeney was the Mayor of Worthington Borough from 2005 to 2016. (Defs.' SUMF, ¶ 2.) Defendant Gerald Rodgers was the Chief of the Worthington PD from November, 2012, to October, 2016. (Defs.' SUMF, ¶ 3.) Defendant Corporal Joseph Zandarski is a Pennsylvania State Police ("PSP") Trooper. (Defs.' SUMF, ¶ 4.)

DeForte and Rodgers did not always get along, and but DeForte was responsible for promoting Rodgers to Sergeant. (Pl.'s Statement of Undisputed and Material Facts ("Pl.'s SUMF"), ECF No. 133, ¶ 10; Defs.' Joint Response to Pl.'s SUMF ("Defs.' Response") ECF No. 135, ¶ 10.)

ii. Firearms Purchases

As Chief of Police, DeForte reported to the Borough Council and Defendant (then-Mayor) Feeney. (Defs.' SUMF, ¶ 8.) DeForte could purchase guns and other equipment for the Department through the Borough. (Defs.' SUMF, ¶ 11.) According to the Borough Code, Feeney was responsible for overseeing the Department, but did not have the authority to make purchases for the Department. (Defs.' SUMF, ¶ 9.) The Borough Council would appropriate funds if it approved a recommended purchase. (Defs.' SUMF, ¶ 10.) The Borough would maintain ownership of any purchased firearms. (Defs.' SUMF, ¶ 12.)

DeForte used grant funds to purchase a lower assembly for an Armalite M15 (an AR-15 style rifle) for the Borough. (Defs.' SUMF, ¶ 13.) Worthington Borough owned the lower assembly. (Defs.' SUMF, ¶ 14.) The Borough purchased the upper assembly for the M15 on April 19, 2011. (Defs.' SUMF, ¶ 15.)

On May 31, 2012, DeForte drafted a document purporting to transfer ownership of the assembled Armalite M15 to Rodgers upon his separation from the Department, provided that Rodgers worked for the Department for twelve months. (Defs.' SUMF, ¶ 19; Defs.' Ex. F, (May 12, 2012 Memo.") ) DeForte presented this document to Feeney, who signed multiple copies of it. (Defs.' SUMF, ¶¶ 20 & 22.) At some point, Rodgers requested a receipt of purchase and DeForte gave him the document. (Defs.' SUMF, ¶ 21.)

iii. Prostitution Sting

In late August or early September, 2012, DeForte initiated a prostitution sting operation in the Borough, targeting individuals attempting to solicit undercover officers. (Defs.' SUMF, ¶ 23.) Officers Nicole Traister and Evan Townsend helped DeForte execute the sting. (Defs.' SUMF, ¶ 25.) Traister placed the money obtained from each sting operation in separate evidence envelopes, which DeForte in turn placed in the Department's evidence locker. (Defs.' SUMF, ¶ 26.) Apparently on DeForte's orders, Traister did not identify the type of bills placed in the envelopes. (Defs.' SUMF, ¶ 27.) As Chief of Police, DeForte had the key to the evidence locker. (Defs.' SUMF, ¶ 28.) It is disputed whether Feeney, in his capacity as Mayor, had a second key to the evidence locker. (Defs.' SUMF, ¶ 28; Pl.'s Response ¶ 28.)

iv. Pine Township Police Department

During his tenure at the Worthington PD, DeForte was also involved in attempting to get a police department for Pine Township up and running. (Defs.' SUMF, ¶ 29.) On October 10, 2012, DeForte advised the Worthington Borough Council that Pine Township was interested in buying a 1998 Crown Victoria from the Borough, as a police car. (Defs.' SUMF, ¶¶ 30-32.) The Worthington Borough Council held discussion, noted that the Crown Victoria would need its radio taken out before selling it, and then voted to authorize the sale of "the 1998 police car to Pine Township as is for $ 1,000.00 and a hand held portable radio." (Defs.' SUMF, ¶¶ 31-32.) On October 15, 2012, DeForte then emailed the Pine Township Secretary, stating "[c]an you get a check to Worthington Borough for $ 1000.00? I also obtained two radios, a brand new light bar and front crash bar for free." (Defs.' SUMF, ¶ 33.)

On November 2, 2012, Pine Township's Township Supervisor, Clyde Moore found two Kenwood-brand radios with chargers that did not belong to Pine Township in the area designated for the police department. (Defs.' SUMF, ¶ 34.) He turned the radios over to the Pennsylvania State Police, who placed them into evidence. (Defs.' SUMF, ¶¶ 35-36.) Feeney identified the two radios as belonging to Worthington Borough. (Defs.' SUMF, ¶ 38.)

Ten days later, on November 12, 2012, Pine Township's Meeting Minutes reflected that its fledgling police department had been disbanded, that "some of the officer[s] brought items from Worthington Borough to Pine Township and were not authorized to do so," and that "[t]he items were given back to Worthington Borough and Clyde Moore met with the Pennsylvania State Police regarding the stolen items." (Defs.' SUMF, ¶ 37.)

v. October 26, 2012

On October 26, 2012, the Borough held its annual Halloween parade. (Defs.' SUMF, ¶ 39.) Although police presence was expected, Feeney began to receive calls from Borough residents wanting to know where the police officers were not at the parade. (Defs.' SUMF, ¶ 41.) DeForte had attempted to organize a sit-out of the officers because he believed Feeney had improperly taken the Department's computer system. (Defs.' SUMF, ¶ 42.)

Feeney arrived at the Department at approximately 7:30 p.m., but DeForte would not address his concerns about the lack of police presence at the parade. (Defs.' SUMF, ¶ 43-44.) Feeney then suspended DeForte for neglect of duty, until the Borough Council meeting scheduled for November 5, 2012. (Defs.' SUMF, ¶ 45.) DeForte left, taking a number of items, including gun cases, a TV, a Blu-Ray player, a surround-sound system, his JNET log and logbook, and other items. (Defs.' SUMF, ¶ 46; Defs.' Ex. A, ECF No. 115-2, DeForte Dep., at 58; Pl.'s Response ¶ 46.) DeForte was terminated as Chief of Police at the November 5, 2012, Council Meeting. (Defs.' SUMF, ¶ 47.)

vi. Evan Townsend

DeForte spoke to Borough Officer Evan Townsend after he was suspended and told Townsend what happened. (Defs.' SUMF, ¶ 48.) Townsend, thinking he would also be fired, went to the Department at approximately 2:00 a.m. on October 28, 2012, to return his rifle and Taser and to pick up personal items belonging to him and DeForte. (Defs.' SUMF, ¶ 49.) Townsend opened the gun safe to return his rifle (another Armalite M15 rifle, property of Worthington Borough) and Taser. (Defs.' SUMF, ¶ 51.) DeForte had told him to put the rifle back in the safe. (Defs.' SUMF, ¶ 53.) The gun safe was accessible to anyone in the Department, as well as Borough Secretary David Conoran. (Defs.' SUMF, ¶ 54.)

Townsend removed a plastic "mailbox" containing court documents for all Borough police officers. (Defs.' SUMF, ¶ 56.) Townsend took photographs of the gun safe's interior. (Defs.' SUMF, ¶ 57.) He also photographed the evidence locker and other miscellaneous items taken from the department. (Defs.' SUMF, ¶ 58.) Townsend's photograph of the gun safe, reproduced below, shows an unidentified folder in the lower righthand corner. (Defs.' SUMF, ¶ 60; Exhibit M, ECF No. 108-14.)

vii. Suspicions of a Break-in at the Police Department

Rodgers arrived at the Department in the morning of Sunday, October 28, 2012, to prepare for court on Monday morning. (Defs.' SUMF, ¶ 61.) He noticed the mailbox was missing, as well as a bank of radios. (Defs.' SUMF, ¶ 62-63.) He called Feeney to inform him of the missing items. (Defs.' SUMF, ¶ 64.) Feeney arrived and observed that filing cabinet drawers were out and personal lockers were open. (Defs.' SUMF, ¶ 65-66.) The gun safe and the evidence locker were both locked. (Defs.' SUMF, ¶ 67-68.) Feeney and Rosen did not take any photographs at the Department on October 28, 2012. (Defs.' SUMF, ¶ 83.) On October 29, 2012, DeForte brought a Borough laptop and power cord to the PSP barracks. (Defs.' SUMF, ¶ 84.)

On the morning of October 31, 2012, more suspicious changes were discovered. (Defs.' SUMF, ¶ 71.) The window in the Borough meeting room appeared to have been tampered with and there was a foot path in the grass leading to the window. (Defs.' SUMF, ¶ 71.) Inside the building, additional evidence property inventory sheets from 2012 with DeForte's name on them had been added to the property log book, a body armor carrier had been returned, and additional personal files belonging to DeForte and Townsend had been removed. (Defs.' SUMF, ¶ 71.)

viii. Pennsylvania State Police and Armstrong County District Attorney Involvement

On October 28, 2012, Defendant Corporal Zandarski took a call from Worthington Borough reporting suspicious activity at the Department. (Defs.' SUMF, ¶ 72.) Zandarski, a stranger to the Borough, went to the Department and met with Feeney, Rosen, and Rodgers. (Defs.' SUMF, ¶ 73.) They informed him that property was missing from the Department. (Defs.' SUMF, ¶ 74.) Zandarski advised the Borough officials to consult with the District Attorney to conduct an inventory, and told them that the State Police would not involve themselves with that process. (Defs.' SUMF, ¶ 76.)

Feeney then left a voicemail for DeForte, telling him to return the missing property. (Defs.' SUMF, ¶ 77.) Rodgers requested that DeForte meet Feeney and Rodgers at the Pennsylvania State Police to return missing property and the evidence locker key. (Defs.' SUMF, ¶ 78.) Plaintiff met Rodgers at PSP Kittanning and provided court hearing notices, a Borough speed timing device, and the key. (Defs.' SUMF, ¶ 79.) Feeney and Rodgers then placed a second lock and evidence tape on the evidence locker. (Defs.' SUMF, ¶ 80.) The keys to the first and second locks were maintained by two different people. (Defs.' SUMF, ¶ 81.) The Borough began to inventory the Department's equipment, which they completed on Tuesday, October 30, 2012, in the evening. (Defs.' SUMF, ¶ 82.) Zandarski briefed his supervisor, Corporal Murphy, on the matter on October 29, 2012. (Defs.' SUMF, ¶ 85.)

The Armstrong County District Attorney's Office asked Detective Roberta Davis to take an inventory of the Worthington PD evidence locker. (Defs.' SUMF, ¶ 86.) On November 28, 2012, Detective Davis met Rosen and Rodgers at the Department to conduct the inventory. (Defs.' SUMF, ¶ 87.) As noted above, the locker had been locked with two locks and wrapped in evidence tape. (Defs.' SUMF, ¶ 88.)

Detective Davis created a log of the contents and had them photographed. (Defs.' SUMF, ¶ 89.) This inventory included a review of, and photography of, the contents of the evidence envelopes from the prostitution stings. (Defs.' SUMF, ¶ 90, 92.) The inventory revealed that $ 540 was missing from the prostitution sting evidence envelopes. (Defs.' SUMF, ¶ 91.) At Detective Davis's direction, Rosen also photographed all items contained in the evidence locker and the gun safe. (Defs.' SUMF, ¶ 93.) This was the only time t he evidence locker was opened during the time period at issue.

(Defs.' SUMF, ¶ 95.) The photograph Rosen took of the gun safe is reproduced below. (Defs.' Ex. CC, ECF No. 108-30, at 2.)

After Corporal Zandarski opened the PSP investigation on October 28, 2012, Corporal Joseph Murphy (Zandarski's supervisor) handled the investigation beginning on November 1, 2012. (Defs.' SUMF, ¶ 96.) After Murphy retired in April, 2013, Zandarski again took over the investigation. (Defs.' SUMF, ¶ 97.)

During the course of the investigation, Murphy learned that DeForte arranged for multiple assault rifle and other weapons purchases through the Borough with payment made privately either by him or other part-time Borough police officers. (Defs.' SUMF, ¶ 98.) DeForte also claimed to have donated expensive firearms to the Borough. (Defs.' SUMF, ¶ 99.) DeForte had told Feeney in 2011 that he wanted to start a Borough SWAT Team and wanted to purchase rifles, including Sig Sauer rifles, for the officers to complete SWAT training in Pittsburgh. (Defs.' SUMF, ¶ 100.) Feeney told Murphy he agreed to the purchase of the rifles in 2011 because it would not cost the Borough any money. (Defs.' SUMF, ¶ 102.)

Corporal Murphy spoke to representatives from Sig Sauer's Law Enforcement Sales Department, who related that Sig Sauer sold two 5.56 short barrel rifles to the Borough in late 2011. (Defs.' SUMF, ¶ 103.) DeForte had sent Sig Sauer a letter confirming the rifles were for official use and not for resale. (Defs.' SUMF, ¶ 103.)

Payment was made by two money orders in 2012, and DeForte paid the balance on the rifles after the PSP investigation began. (Defs.' SUMF, ¶ 103.) Sig Sauer sold the Borough three more 5.56 short barrel rifles in May, 2012. (Defs.' SUMF, ¶ 103.) Sig Sauer advised that the Borough purchased these rifles on a "trade agreement" for two used Sig Sauer 551A1 rifles, which DeForte had purchased personally and donated to the Borough. (Defs.' SUMF, ¶ 103.) DeForte had begun efforts to transfer all three of the new 2012 rifles to Chris Burns, owner of C & G Arms, but the transfer was terminated after the PSP began its investigation. (Defs.' SUMF, ¶ 103.)

One of the 2011 rifles was found in the Borough gun safe and the other, initially thought to be missing, was found at C & G Arms. (Defs.' SUMF, ¶ 103.) Corporal Murphy interviewed numerous people, including representatives from Sig Sauer, former Worthington PD Officers, and Chris Burns, in an attempt to confirm and follow the Borough firearms purchases arranged by DeForte, as well as his efforts to donate or trade rifles. (Defs.' SUMF, ¶ 104.) Murphy and Zandarski had never seen a situation where a municipality permitted officers to purchase assault weapons through the Borough or the official Police Department account, or where a municipality purchased firearms and then gifted them to officers after a certain length of service. (Defs.' SUMF, ¶ 106.) Nor had they encountered a situation where an officer donated firearms worth thousands of dollars to a police department. (Defs.' SUMF, ¶ 107.)

During the investigation, the PSP discovered that DeForte would prepare memos for Feeney to sign that purported to approve transfers of firearms to the individual officer, who would own the weapon at some point. (Defs.' SUMF, ¶ 108.) Feeney indicated that he trusted DeForte and would sign documents presented to him without knowing what he was signing. (Defs.' SUMF, ¶ 109.) Zandarski described the May 31, 2012 memo (which purported to transfer ownership of an Armalite M15 rifle from the Borough to Rodgers) as "absurd" and testified that he had "never heard of such a thing." (Defs.' SUMF, ¶ 110.)

Zandarski also took steps to investigate a possible forgery charge in connection with Feeney's signature on the Borough documents prepared by DeForte. (Defs.' SUMF, ¶ 113.) On July 1, 2013, Zandarski sent multiple documents with Feeney's signature to the PSP Document Examination Lab in Harrisburg for analysis. (Defs.' SUMF, ¶ 114.) On November 20, 2013, the Lab concluded that the Feeney signatures were genuine. (Defs.' SUMF, ¶ 116.) Feeney contended that whether he or not he signed them, he did not approve of the memos. (Defs.' SUMF, ¶ 117.)

The PSP also investigated the two (2) portable radios found at Pine Township. (Defs.' SUMF, ¶ 119-22.) Clyde Moore from Pine Township had turned over two Kenwood Radios that did not belong to Pine Township, and Feeney identified them as belonging to Worthington Borough. (Defs.' SUMF, ¶ 120.) Pine Township documents obtained by Murphy included the October 15, 2012, email from DeForte telling the Pine Township secretary that he had obtained "two radios." (Defs.' SUMF, ¶ 122.)

The PSP also investigated DeForte's transfer of an Armalite M15 to Rodgers. In 2011, DeForte sold Rodgers an MSAR - STG 5.56 rifle for $ 1500. (Defs.' SUMF, ¶ 123.) Rodgers paid DeForte $ 500 by check and the rest in cash. (Defs.' SUMF, ¶ 124.) Rodgers thought the STG 5.56 would not fire properly and asked DeForte for a different gun. (Defs.' SUMF, ¶ 125.) DeForte took the STG back from Rodgers and re-sold it to Shane Bracken, a Constable of Kittanning Township. (Defs.' SUMF, ¶ 126.) DeForte then gave Rodgers his own rifle, an Armalite M15 which had a lower assembly with serial No. US 350432 and upper assembly and scope. (Defs.' SUMF, ¶ 127.) Rodgers believed this was DeForte's personal rifle because he always had the rifle with him. (Defs.' SUMF, ¶ 128.) However, the PSP investigation revealed that Worthington Borough had purchased the Armalite lower assembly in 2010 with a federal grant check. In 2011, the Borough also purchased an upper receiver (which does not have a serial number) for an Armalite M15 rifle. (Defs.' SUMF, ¶ 130.)

As Rodgers and the Borough officials began to inventory weapons and Borough property on October 28, 2012, Rodgers realized that the Borough's missing Armalite rifle was the same rifle DeForte had sold him. (Defs.' SUMF, ¶ 132.) He turned it over to the PSP a few days later. (Defs.' SUMF, ¶ 133.) DeForte had also attempted to sell this rifle to Traister. (Defs.' SUMF, ¶ 135.) The only missing weapon that could be traced to a direct purchase by the Borough, using Borough or federal grant funds, was the Armalite rifle with lower assembly serial No. US 350432. (Defs.' SUMF, ¶ 134.)

Townsend testified that he had no knowledge as to who may have removed money from the evidence envelopes in the evidence locker. (Defs.' SUMF, ¶ 136.) He never witnessed anyone plant or falsify evidence at the Department. (Defs.' SUMF, ¶ 137.) When interviewed by Corporal Murphy, DeForte said the last time he was in the locker was when he returned money to a third party on an unrelated case, which would have been documented in the log. (Defs.' SUMF, ¶ 139.) DeForte admitted that the prostitution sting cases had pled out, and the money was to be returned to the accused, but he had not returned any of it. (Defs.' SUMF, ¶ 141.) The PSP discovered that the prostitution sting cases had been disposed of before the District Magistrate. (Defs.' SUMF, ¶ 147.) When Rodgers contacted some of the defendants, they confirmed the money had not been returned to them. (Defs.' SUMF, ¶ 147.)

After taking over the investigation in mid-2013, Zandarski also interviewed Officer Traister, who said that while processing the money evidence from the prostitution sting, DeForte told her to write an undetermined amount on the evidence envelope, not a breakdown of the money received (as she had been doing). (Defs.' SUMF, ¶ 143.) Traister felt uncomfortable about this idea, and entered a total without giving a breakdown of denominations. (Defs.' SUMF, ¶ 144.)

Worthington Borough officials advised the PSP that DeForte was the only custodian of the evidence locker and the only person who had a key to it. (Defs.' SUMF, ¶ 148.) The PSP was also told that any money, guns, drugs, or other property seized in any incident would be exclusively kept in the evidence locker. (Defs.' SUMF, ¶ 149.)

Based on the evidence and investigation, Murphy believed there was sufficient support for charges against DeForte, including theft of Borough property. (Defs.' SUMF, ¶ 150.) Murphy met with the District Attorney ("DA") on March 15, 2013, and presented his investigation, and the DA said he would consider if there was enough evidence for charges and update the offices. (Defs.' SUMF, ¶ 151.)

Murphy recalled that during his interview with Townsend, Townsend mentioned taking photographs when he went to the police station in the wee hours of October 28, 2012. Murphy could not remember whether Townsend actually sent him copies of the photographs, but said that if he did, he did not print or keep them because they were not significant. (Defs.' SUMF, ¶ 155.) At any rate, Murphy's concern when interviewing Townsend was ensuring PSP could identify and locate all the pertinent weapons. (Defs.' SUMF, ¶ 156.) Murphy went to the Department on November 5, 2012, and was able to confirm that the rifle Townsend described was in the gun safe. (Defs.' SUMF, ¶ 157.) No one, including Townsend or DeForte, had suggested to Murphy that there was money or evidence envelopes in the gun safe (as opposed to the evidence locker). (Defs.' SUMF, ¶ 160.) Looking at Townsend's gun safe photograph (reproduced above) in 2018, Murphy stated that he only noticed a relatively thin manila folder which does not appear to contain evidence envelopes or money. (Defs.' SUMF, ¶ 161.)

On November 4, 2013, a Detective Belliveau from the University of Massachusetts contacted Corporal Zandarski and reported that he had arrested DeForte at the University for felony weapons violations and living in an unauthorized location on campus. (Defs.' SUMF, ¶ 162.) Belliveau reported that DeForte was interviewed and said that he was in law school and was also a police officer in Pennsylvania. (Defs.' SUMF, ¶ 163.) Zandarski advised Belliveau that the PSP was investigating DeForte regarding a forgery complaint by Worthington Borough. (Defs.' SUMF, ¶ 166.) Zandarski also learned of criminal charges that Allegheny County was pursuing against DeForte. (Defs.' SUMF, ¶ 168.)

On December 4, 2013, Zandarski, who had since transferred to the PSP Butler Barracks, met with Lieutenant Dubovi, in charge of the Kittanning Crime Unit, and the Armstrong County DA to discuss DeForte's case. (Defs.' SUMF, ¶ 170.) In particular, Zandarski told the DA that he had verbal assurance that the portable radios found at Pine Township belonged to Worthington Borough and that Borough officials were looking for proof of purchase. (Defs.' SUMF, ¶ 178.) Zandarski also discussed DeForte's May 13, 2012, memo dealing with the Armalite rifle sold to Rodgers. (Defs.' SUMF, ¶ 179.) The DA agreed that the memo was suspicious and did not make sense. (Defs.' SUMF, ¶ 180.)

Upon review of all aspects of the investigation, the DA told them which charges he approved and instructed Zandarski to file those charges. (Defs.' SUMF, ¶ 172.) Several things that Zandarski, Dubovi, and the DA discussed were not included in the criminal complaint, which was issued on January 16, 2014. (Defs.' SUMF, ¶¶ 173-74.) Feeney and Rodgers were not part of the meeting in deciding whether to bring charges against DeForte, and did not play a role in reviewing or approving the charges. (Defs.' SUMF, ¶ 181.)

The criminal complaint against DeForte asserted five (5) criminal counts: (1) Theft by Unlawful Taking (AR-15); (2) Theft by Deception (AR-15); (3) Receiving Stolen Property (AR-15); (4) Theft by Unlawful Taking (Money and Radios); and (5) Receiving Stolen Property (Money and Radios). (Defs.' SUMF, ¶ 175.) These charges concerned the alleged theft of the Armalite rifle, the two (2) portable radios found at Pine Township, and the missing prostitution sting money. (Defs.' SUMF, ¶ 177.) The Affidavit of Probable Cause was executed by Zandarski and approved by District Attorney Scott Andreassi. (Defs.' SUMF, ¶ 176.)

In formulating the charges, Zandarski relied upon Detective Davis's inventory, which she had provided to Corporal Murphy. (Defs.' SUMF, ¶ 182.) Because Murphy had not entered the photographs taken by Townsend into evidence, Zandarski did not see the photographs. (Defs.' SUMF, ¶ 183.) Zandarski recalled that Murphy mentioned that Townsend had photos of guns in the Department's gun safe, but that Murphy thought the photos were insignificant. (Defs.' SUMF, ¶ 184.)

Zandarski also followed up on accusations that DeForte had made against others during his earlier interview with Murphy.

(Defs.' SUMF, ¶ 185.) Zandarski spoke with several individuals, including the Worthington Fire Department's President, about DeForte's claim that Feeney stole radios from the Fire Department. (Defs.' SUMF, ¶ 186.) The Fire Department President, Dewey Stewart, described the claim as absurd, and said that he knew where the radios were and allowed Feeney to borrow them. (Defs.' SUMF, ¶ 187.)

On February 26, 2014, a Preliminary Hearing was held in DeForte's criminal case, and all charges were bound over for court. (Defs.' SUMF, ¶ 189.) Rodgers, Zandarski, and Detective Davis all testified at the Hearing. (Defs.' SUMF, ¶ 193.) An omnibus hearing scheduled for July 17, 2014, was continued until August 19, 2014. (Defs.' SUMF, ¶ 190.) In January of 2015, Trooper Geibel from the PSP Kittanning Barracks contacted DeForte's counsel to have DeForte come in for fingerprinting, as he had never been processed on the pending charges. (Defs.' SUMF, ¶ 191.) DeForte refused, and was never processed. (Defs.' SUMF, ¶ 192.)

In August, 2015, all criminal charges against DeForte were nolle prossed . (Defs.' SUMF, ¶ 194.)

ix. Corporal Zandarski's Supplemental Employment with Rodgers's Logging Business

Corporal Zandarski had an educational background in forestry, and began performing independent contract work as a Forester for Rodgers's logging business in August or September of 2014. (Defs.' SUMF, ¶ 195.) Zandarski applied with PSP to approve this supplemental employment in June of 2014. (Defs.' SUMF, ¶ 196.) When Zandarski began working for Rodgers's business, the investigation of DeForte had been over for six (6) to seven (7) months. (Defs.' SUMF, ¶ 197.)

B. Procedural History

Plaintiff initiated this civil action at Docket Number 2:16-cv-0067 on January 14, 2016, bringing claims under 42 U.S.C. §§ 1983, 1985, 1986, 1988, and the Fourth and Fourteenth Amendments to the Constitution, as well as state law tort claims for malicious prosecution, abuse of process, and intentional infliction of emotional distress against Worthington Borough, Feeney, and Rodgers. (Complaint ("Compl."), ECF No. 1.) In separate litigation in this Court at Docket Number 2:16-cv-113, Plaintiff brought the same set of claims against Corporal Zandarski. (See Complaint, ECF No. 1, at Docket 2:16-cv-113.) The Court consolidated these cases on August 22, 2017. (Order of Consolidation, ECF No. 45.)

In the case against Zandarski, the Court granted in part and denied in part Zandarski's Motion to Dismiss, dismissing all of Plaintiff's federal claims against Zandarski in his official capacity, all of his individual-capacity claims against Zandarski brought under 42 U.S.C. §§ 1985 and 1986, his malicious prosecution claim, and his abuse of process claim. (Order, ECF No. 13, Docket 2:16-cv-113.) The Court denied the Motion as to Plaintiff's Fourteenth Amendment fabrication-of-evidence claim and his state tort claims for malicious prosecution and intentional infliction of emotional distress. (Opinion, ECF No. 12, at 19-21, 25-26.)

In the case against the Borough, Rodgers, and Feeney, the Court granted in part and denied in part their motions to dismiss, dismissing all of Plaintiff's claims against Worthington Borough, dismissing Plaintiff's official-capacity claims against Feeney and Rodgers, dismissing Plaintiff's individual-capacity claims against Feeney and Rodgers brought under 42 U.S.C. §§ 1985 and 1986, dismissing his abuse-of-process claims against Feeney and Rodgers, and dismissing the state-law claims against Feeney. (Order, ECF No. 31.) The Court denied the Motion as to Plaintiff's Fourteenth Amendment fabrication-of-evidence claim against Feeney and Rodgers and his state tort claims for malicious prosecution and intentional infliction of emotional distress against Rodgers.

Defendants filed Motions for Summary Judgment (ECF Nos. 116, 117, 118) and briefs in support therein. Plaintiff filed Briefs in Opposition (ECF Nos. 127, 131, 132). Defendants filed Reply Briefs (ECF Nos. 134, 136, 138) as authorized by the Court's summary judgment scheduling order. Plaintiff filed sur-replies without leave of Court, at ECF Nos. 141, 142, and 143, in violation of the Court's Standing Order on Civil Motions Practice. Defendants filed a Joint Motion to Strike the sur-reply briefs, at ECF No. 149. That Motion will be granted, and the Court has not relied on any of the sur-reply briefing. On November 26, 2018, the Court held Oral Argument on the Defendants' Motions for Summary Judgment. These motions are ripe for disposition.

II. STANDARD ON SUMMARY JUDGMENT

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The parties must support their position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A).

Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial ," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed. R. Civ. P. 56(a) & (e) ). To meet its burden, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita , 475 U.S. at 586, 106 S.Ct. 1348. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester , 891 F.2d 458, 460 (3d Cir. 1989). Moreover, a party's labelling or characterizing a fact as "disputed" does not make it so-the record evidence the opposing party points to must support the dispute of fact, whether through reasonable inference or otherwise. If the non-moving party's evidence merely is colorable or lacks sufficient probative force, summary judgment must be granted. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In other words, summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party. See id. at 250, 106 S.Ct. 2505. "Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' "

Matsushita , 475 U.S. at 587, 106 S.Ct. 1348 ; Huston v. Procter & Gamble Paper Prods. Corp. , 568 F.3d 100, 104 (3d Cir. 2009).

In reviewing the record evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). "The line between reasonable inferences and impermissible speculation is often 'thin,' Fragale & Sons Beverage Co. v. Dill , 760 F.2d 469, 474 (3d Cir. 1985), but nevertheless is critical because 'an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat summary judgment.' " Halsey v. Pfeiffer , 750 F.3d 273, 287 (3d Cir. 2014) (quoting Robertson v. Allied Signal, Inc. , 914 F.2d 360, 382 n. 12 (3d Cir. 1990) ). Any inference must follow directly from admissible evidence. See Anderson , 477 U.S. at 255, 106 S.Ct. 2505.

It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See id. ; Marino v. Indus. Crating Co. , 358 F.3d 241, 247 (3d Cir. 2004). Although summary judgment may be granted based on affidavits, conflicts of credibility should not be resolved on a motion for summary judgment unless the opponent's evidence is "too incredible to be believed by reasonable minds." Losch v. Borough of Parkesburg. , 736 F.2d 903, 909 (3d Cir. 1984) (quoting 6 Moore's Fed. Prac. ¶ 56.14(4) ). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson , 477 U.S. at 247-48, 106 S.Ct. 2505. "Where the defendant is the moving party, the initial burden is on the defendant to show that the plaintiff has failed to establish one or more essential elements to his case." See Podobnik v. U.S. Postal Serv. , 409 F.3d 584, 589 (3d Cir. 2005) (citing Celotex Corp. , 477 U.S. at 323-24, 106 S.Ct. 2548 ).

III. DISCUSSION

Defendants aver that they are entitled to summary judgment in their favor because they are entitled to judgment as a matter of law, and because no material issues of fact remain as to the remaining claims in Plaintiff's Complaints in the two consolidated cases (16-cv-67 and 16-cv-113): Count I, violation of the Fourteenth Amendment, against all Defendants in their individual capacities; Count II, malicious prosecution, against Rodgers and Zandarski; and Count IV, intentional infliction of emotional distress, against Rodgers and Zandarski. Plaintiff argues that summary judgment should not be granted because a number of material factual disputes remain. For the reasons that follow, the Court will grant Defendants' Motions for Summary Judgment in their entirety.

A. Fabrication of Evidence

Plaintiff has alleged in Count I that Feeney and Rodgers staged a bogus theft of cash, guns, and radios in order to frame Plaintiff for the thefts and cause baseless state criminal charges to be filed against him, and that Zandarski manipulated the evidence and filed false criminal charges to cover up for Feeney and Rodgers's alleged crimes. Defendants have raised various arguments as to why summary judgment should be granted in their favor on this Count, chiefly that the claim fails on the merits, and that they are entitled to Qualified Immunity. The Court concludes that Defendants are entitled to Qualified Immunity because even though Plaintiff's Constitutional fabrication-of-evidence claim was available as of 2012, Plaintiff cannot establish that he was deprived of a protected life, liberty, or property interest. Plaintiff's failure to establish that he was deprived of life, liberty, or property also dooms his Fourteenth Amendment claim on the merits.

i. Qualified Immunity

The affirmative defense of qualified immunity "shield[s] officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). To overcome that immunity, a plaintiff must show (1) the violation of a constitutional right and (2) that the right was clearly established at the time of the alleged misconduct. Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). A court may address these two prongs in either order, depending on a given case's circumstances. Pearson , 555 U.S. at 236, 129 S.Ct. 808. A government official's conduct violates clearly established law when, at the time of the challenged conduct, every reasonable official would understand that her actions violated the right alleged. Ashcroft v. al-Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). To be clearly established, a right's contours must be "sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it" and that "existing precedent ... placed the statutory or constitutional question confronted by the official beyond debate." Plumhoff v. Rickard , 572 U.S. 765, 778-79, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) (quoting al-Kidd , 563 U.S. at 741, 131 S.Ct. 2074 ). Moreover, "clearly established law should not be defined at a high level of generality" but must instead "be particularized to the facts of the case." White v. Pauly , --- U.S. ----, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per curiam) (citation omitted).

But "qualified immunity applies regardless of whether the government official's conduct results from a mistake of law, mistake of fact, or mistake based on mixed questions of law and fact." Pearson , 555 U.S. at 231, 129 S.Ct. 808 (quoting Groh v. Ramirez , 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (internal quotation marks omitted) ). The doctrine is designed to "give[ ] government officials breathing room to make reasonable but mistaken judgments by protect[ing] all but the plainly incompetent or those who knowingly violate the law." City & Cty. of San Francisco v. Sheehan , --- U.S. ----, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015) (quoting al-Kidd , 131 S.Ct. at 2074 ). As explained below, Defendants are entitled to Qualified Immunity and to summary judgment on the merits, because even though Plaintiff's right not to be charged based on fabricated evidence was clearly established as of 2012, he cannot show that he was deprived of a constitutionally protected life, liberty, or property interest.

i. Whether a Claim for Fabrication of Evidence was Clearly Established in 2012

"To be clearly established, the very action in question need not have previously been held unlawful." Dougherty v. Sch. Dist. of Phila. , 772 F.3d 979, 993 (3d Cir. 2014). Rather, the "contours of the right" must be sufficiently clear that the unlawfulness of the action would be apparent in light of pre-existing law. Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The Supreme Court has provided the guiding premise that "a legal principle must have a sufficiently clear foundation in then-existing precedent." District of Columbia v. Wesby , --- U.S. ----, 138 S.Ct. 577, 589, 199 L.Ed.2d 453 (2018). The rule must be "settled law," which means it is dictated by "controlling authority" or "a robust consensus of cases of persuasive authority." Id. at 589-90 (quoting al-Kidd , 563 U.S. at 741-42, 131 S.Ct. 2074 (internal quotation marks omitted) ). "It is not enough that the rule is suggested by then-existing precedent." Id. at 590. "The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply." Id.

Defendants contend that the right to be free from a due process violation based on fabrication of evidence was not clearly established in the fall of 2012, when the events giving rise to Plaintiff's Complaint took place. That is because the Third Circuit did not recognize a Fourteenth Amendment fabrication-of-evidence claim until April of 2014, in Halsey v. Pfeiffer , 750 F.3d 273 (2014). Plaintiff, in response, points to four Supreme Court cases pre-dating 2012, that he avers clearly established the right: Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; Burns v. Reed , 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) ; Buckley v. Fitzsimmons , 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) ; and United States v. Lanier , 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). The Court does not entirely agree with Plaintiff or Defendants' arguments. Instead, the Court reads Halsey as stating that the right to be free from prosecution based on fabricated evidence existed before 2014.

To begin, none of Plaintiff's cited cases clearly establishes a claim for fabrication of evidence. Burns held that a prosecuting attorney is absolutely immune from liability for § 1983 damages for participating in a probable cause hearing, but not for giving the police legal advice. 500 U.S. at 481, 111 S.Ct. 1934. Buckley held that a prosecutor's alleged fabrication of evidence during the preliminary investigation of an unsolved crime is shielded by qualified immunity. 509 U.S. at 276, 113 S.Ct. 2606. And Lanier involved an analysis of the standard for determining whether particular conduct (sexual assault of women by a state judge) falls within the ambit of criminal liability under 18 U.S.C. § 242. It does not say anything about a Fourteenth Amendment fabrication-of-evidence claim.

Brady comes closest to the mark. In Brady , the Supreme Court issued its landmark holding setting forth that the prosecution's failure to disclose favorable material evidence violates due process. 373 U.S. at 87, 83 S.Ct. 1194. In fact, as discussed below, the Third Circuit in Halsey cited Brady for the proposition that a fabrication-of-evidence claim was clearly established "long before" 1985.

As Defendants note, it is indisputable that Halsey was decided in 2014 and Black in 2016. However, in Halsey , the Third Circuit determined that the fabrication-of-evidence claim was clearly established at least as of 1985, when the violation in that case occurred. 750 F.3d at 295. This recognition presents something of a space-time continuum issue for the Court. That is, if the Third Circuit recognized in 2014 that a claim predicated on fabricated evidence was clearly established "long before" the plaintiff's prosecution in 1985, when was the right actually clearly established? The Court reads Halsey to conclude that the right was clearly established before 2012, when the events giving rise to Plaintiff's Complaint took place. This determination accords with the Third Circuit's conclusion that "[r]easonable officers should have known [after the Supreme Court decided Brady in 1963] that if they could not withhold exculpatory evidence from a defendant, they certainly could not fabricate inculpatory evidence against a suspect or defendant." Halsey , 750 F.3d at 296.

The Court therefore concludes that a standalone claim for fabrication of evidence, arising under the Fourteenth Amendment's Due Process Clause, was available to Plaintiff in 2012.

ii. Whether Defendants violated Plaintiff's Fourteenth Amendment rights

Defendants next contend that even if the right was clearly established in 2012, they did not violate Plaintiff's Fourteenth Amendment rights and therefore they are entitled to judgment in their favor. Plaintiff argues that Defendants violated his rights by fabricating evidence in order to drum up criminal charges and ruin his life. The Court concludes that Plaintiff cannot establish that Defendants violated his rights.

The Third Circuit has recognized a standalone claim for fabrication of evidence, arising under the procedural due process component of the Fourteenth Amendment. See Black v. Montgomery Cty. , 835 F.3d 358, 369 (3d Cir. 2016) ; Halsey v. Pfeiffer , 750 F.3d 273, 294 (3d Cir. 2014). Such a claim stands alone because it need not be tied to a malicious prosecution claim. Halsey , 750 F.3d at 292.

To establish a fabrication-of-evidence claim, a plaintiff must show there is a reasonable likelihood that, absent that fabricated evidence, the defendant would not have been criminally charged." Black , 835 F.3d at 372. To meet the "reasonable likelihood" standard, the plaintiff must establish a "meaningful connection" between the due process injury and the use of fabricated evidence. Id. The plaintiff must also establish "that the fabricated evidence 'was so significant that it could have affected the outcome of the criminal case.' " Black , 835 F.3d at 372 (quoting Halsey , 750 F.3d at 295 ). Further, there is a "notable bar" for whether evidence was fabricated. Id. at 372. "[T]estimony that is incorrect or simply disputed should not be treated as fabricated merely because it turns out to have been wrong." Halsey , 750 F.3d at 295. Instead, there must be persuasive evidence that the fabricated evidence's proponents knew the evidence was incorrect or offered it in bad faith. Id.

The Third Circuit in Black "reiterate[d] that 'we expect that it will be an unusual case in which a police officer cannot obtain a summary judgment in a civil action charging him with having fabricated evidence used in an earlier criminal case.' " Black , 835 F.3d at 372 (quoting Halsey , 750 F.3d at 295 ). For instance, Halsey presented such unusual facts that the Court said it "hardly [could] conceive of a worse miscarriage of justice." 750 F.3d at 278. The plaintiff served twenty years of a sentence of two life terms in prison for the torture and murder of his partner's two young children after investigators inserted details the plaintiff could not possibly have known into a "confession" that he signed after a relentless and coercive interrogation. Id. at 278-82. All the while, the real killer, known to the police to have a record of sexual assaults and who lived next door to the children, "avoided arrest despite nervously asking the investigating detectives whether he would be 'locked up.' " Id. at 278.

Although Halsey 's holding contemplated a civil litigant who had been convicted at a criminal trial in which the prosecution used fabricated evidence, Black noted that the protection recognized in Halsey did not turn on whether the plaintiff had been convicted at trial. Black , 835 F.3d at 371. In Black , the Court held that the plaintiff's acquittal did not preclude her fabrication-of-evidence claim, reasoning that holding otherwise "would insulate the ineffective fabricator of evidence while holding accountable only the skillful fabricator. Id.

Here, Defendants argue that Plaintiff cannot establish a fabrication-of-evidence claim because he does not assert a deprivation of liberty as required to state a procedural due process claim, and because no fabrication of evidence occurred. Plaintiff advances several theories of injurious deprivation of liberty and property interests, and also provides a theory of events in which Defendants fabricated evidence resulting in his criminal charges.

1. Deprivation of a protected interest

Plaintiff claims he was deprived of liberty and property. Defendants aver that Plaintiff cannot establish a fabrication-of-evidence claim because he does not assert a deprivation of liberty as required to state a procedural due process claim. The Court agrees that no reasonable jury could conclude that Plaintiff was deprived of a protected life, liberty, or property interest as required to state a fabrication-of-evidence claim.

The Third Circuit has not spoken directly to what injury is required to state a fabrication-of-evidence claim, perhaps because it did not need to in Halsey and Black . In those cases, the Court did not need to address whether the fabrication of evidence, in and of itself, absent an allegation of deprivation of liberty, would give rise to a cognizable injury. That is because in both Black and Halsey , the plaintiffs were manifestly deprived of their liberty. The plaintiff in Halsey served twenty years in prison, and the plaintiff in Black endured the various restraints on her liberty involved in the criminal process, including traveling from California to Pennsylvania for all pre-trial hearings, posting unsecured bail of $ 50,000, and living under "the cloud of very serious charges," Black , 835 F.3d at 367-68. Nothing like any of that happened to Plaintiff here.

In the broader procedural due process context, a claim for "[s]ubmission to a fatally biased decisionmaking process," Plains All Am. Pipeline L.P. v. Cook , 866 F.3d 534, 545 (3d Cir. 2017) necessarily entails as an element a deprivation of liberty or property because "[a]t the core of procedural due process jurisprudence is the right to advance notice of significant deprivations of liberty or property and to a meaningful opportunity to be heard." Abbott v. Latshaw , 164 F.3d 141, 146 (3d Cir. 1998) (emphasis added). Put differently, the deprivation by state action of a protected interest in life liberty, or property, without due process of law, is unconstitutional. See Burns v. Pa. Dep't of Corr. , 544 F.3d 279, 283-84 (3d Cir. 2008).

In the fabrication-of-evidence context, the Third Circuit has yet to decide whether a plaintiff alleging such a claim must also allege that she was deprived of her life, liberty, or property in some way. However, several other Courts of Appeals have. The Second Circuit in Zahrey v. Coffey (cited favorably in Black ) noted that "[l]itigants sometimes speak of a 'right to due process,' .... [b]ut the Constitution does not guarantee 'due process' in the abstract; it guarantees that '[n]o person shall ... be deprived of life, liberty, or property, without due process of law.' " 221 F.3d 342, 348 n.4 (2d Cir. 2000) (fourth and fifth alterations in original) (quoting U.S. Const. amend. V ). And the Seventh Circuit noted that to prevail on a fabrication-of-evidence claim, "the plaintiff must have suffered a deprivation of liberty." Cairel v. Alderden , 821 F.3d 823, 831 (7th Cir. 2016) ; cf. Weiland v. Palm Beach Sheriff's Off. , 792 F.3d 1313, 1328 (11th Cir. 2015) (identifying "unjust incarceration" as "a deprivation of liberty redressable under the Due Process Clause of the Fourteenth Amendment" in the malicious prosecution context). Most recently, the Ninth Circuit held that "[t]o prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that (1) the defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the plaintiff's deprivation of liberty." Spencer v. Peters , 857 F.3d 789, 798 (9th Cir. 2017).

Additionally, another court in the Western District of Pennsylvania has recognized that to state a procedural due process claim for fabrication of evidence, a plaintiff must allege deprivation of liberty. Pazicni v. Miller , No. 17-cv-117, 2017 WL 2418688, at *7 (W.D. Pa. June 5, 2017). And in fabrication-of-evidence's mirror image context, suppression of exculpatory evidence, the Supreme Court has stated that "suppression of evidence amounts to a constitutional violation only if it deprived the defendant of a fair trial." United States v. Bagley , 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

The Court concludes, based on the consensus of other Courts of Appeals to have considered the issue, Judge Fischer's reasoning in Pazicni , and a commonsense understanding of the nature of the injuries that may result from fabrication of evidence, that in order to state a fabrication-of-evidence claim arising under the procedural component of the Due Process Clause of the Fourteenth Amendment, a plaintiff must allege that he was deprived of life, liberty, or property in some way as a result of the fabricated evidence. Unlike in the administrative procedural due process context, in which submitting one's claims to a biased tribunal is itself injurious, the court does "not see how the existence of a false police report, sitting in a drawer in a police station, by itself deprives a person of a right secured by the Constitution and laws," Landrigan v. City of Warwick , 628 F.2d 736, 744 (1st Cir. 1980) ; see also Buckley v. Fitzsimmons , 509 U.S. 259, 281, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (Scalia, J., concurring) ("I am aware of[ ] no authority for the proposition that the mere preparation of false evidence, as opposed to its use in a fashion that deprives someone of a fair trial or otherwise harms him, violates the Constitution.").

The Court next turns to whether Plaintiff has advanced record evidence which would permit a jury to find a deprivation of constitutionally protected life, liberty, or property. Here, Plaintiff was never "processed" into the criminal justice system-because he refused to go to the PSP to be processed and the District Attorney did not pursue the matter-for his criminal charges before they were nolle prossed . Between January 16, 2014, when the charges were issued, and the nolle prosequi by Armstrong County on August 7, 2015, Plaintiff was never detained by police, placed into custody, or otherwise restricted in any way as a result of these charges. By contrast to the deprivations at issue in Halsey and Black , Plaintiff has not pleaded a deprivation of liberty interest, or produced evidence of such deprivation.

In the absence of an allegation that he was deprived of his liberty, Plaintiff advances two arguments: (1) that his property was seized as a result of the allegedly fabricated evidence, and (2) that his employment as a police officer was "seized" as a result of the charges, despite the fact that they were later dropped. Defendants contend that an inability to work as a police officer and loss of property do not constitute a cognizable deprivation of liberty, and even if they did, Plaintiff has not presented evidence that he was subject to either type of deprivation. Following Oral Argument, the Court asked the parties to brief whether record evidence supported an allegation of deprivation. (Pl.'s Statement, ECF No. 160; Defs.' Joint Response to Pl.'s Statement, ECF No. 161.)

First, assuming that Plaintiff had a protected property interest in continuing his employment as a public police officer, Gilbert v. Homar , 520 U.S. 924, 928-29, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) ; see Police Tenure Act, 53 Pa. Cons. Stat. § 812, Plaintiff has presented no evidence that he lost his employment as a police officer because of the Armstrong County charges. Plaintiff has shown that the North Buffalo Township Police Department suspended him on January 18, 2014, "as a result of [his] criminal charges by the Pennsylvania State Police [for] theft ... and current criminal charges in the State of Massachusetts of weapons violations." (Pl.'s App'x A, ECF No. 160-1 (emphasis added).) The PSP filed felony charges against Plaintiff on January 16, 2014. (Pl.'s Ex. 16.d, ECF No. 124-66, at 3.) The Massachusetts charges were brought on October 24, 2013. (Pl.'s Ex. 21.b, ECF No. 124-92, at 2.) The Massachusetts felony charges for carrying a firearm without a license were dismissed on January 17, 2014, and the other Massachusetts misdemeanor charges for improper storage of firearms were dismissed on January 16, 2015. (Id. ) This suspension does not constitute a loss of employment sufficient to deprive Plaintiff of his property or liberty. He has advanced no record evidence that he actually lost a day of work that he would have otherwise had but for this rather amorphous "suspension." Nor, for that matter, can Plaintiff establish that but for the Armstrong County charges he would not have been suspended, because the suspension letter also expressly relied on the Massachusetts criminal charges.

Additionally, in a January, 5, 2016, memorandum regarding Plaintiff's suspension, the Chairperson of the Board of Supervisors of North Buffalo Township communicated to Plaintiff that the suspension was removed from his record, that the Township did not intend to refer to the suspension for any purpose in the future, and confirmed that Plaintiff actually kept working as a North Buffalo Police Officer: "I know that you have worked as a police officer of North Buffalo Township since this suspension has occurred so accept this letter to give closure to this matter." (Pl.'s App'x A, ECF No. 160-1, at 5-6 (emphasis added).)

Next, Plaintiff argues that he was deprived of his liberty because his Municipal Police Officers' Education and Training Commission ("MPOETC") certification was "seized," so he could no longer work as a police officer. On January 23, 2014, the North Buffalo Township Police Department sent a fax to the Commonwealth's MPOETC, indicating that Plaintiff had criminal arrests for theft and unsecured weapons, and that the arresting departments were the Pennsylvania State Police and the University of Massachusetts Police. (Pl.'s App'x A, ECF No. 160-1, at 3-4.)

Plaintiff has also admitted, however, that the MPOETC never wrote to him or advised him that his certification was revoked. (Pl.'s Ex. 13.1, ECF No. 124-27, at 29.) Rather, he stated (without evidentiary foundation) that his understanding was that the "MPOETC doesn't have to revoke [my certification]. The law itself revokes it. The moment you file charges I can't work. That's a seizure." (Id. ) He went on to confirm that the "MPOETC never called me up and took the card, but the law requires that I cannot work..... In my mind that is a seizure." (Id. )

But in separate litigation in the Western District of Pennsylvania, in which Plaintiff was represented by the same counsel as the instant case, Plaintiff submitted a certification from the MPOETC effective from May 23, 2013 until June 30, 2015. See Third Amended Complaint, Bracken, DeForte and Jennings v. Cty. of Allegheny et al. , No. 2:16-cv-00171-CRE, ECF No. 64-2. An affidavit submitted in that litigation by a Deputy Agency Open Records Officer of the Pennsylvania State Police Department Headquarters stated that Plaintiff was certified by the MPOETC and was employed by the North Buffalo Police Department from April 9, 2012, until at least the date the affidavit was issued, March 8, 2017. Bracken v. Cty. of Allegheny , No. 2:16-cv-00171-CRE, ECF No. 75-7. Thus, the record indisputably demonstrates that no matter what Plaintiff may have assumed, there is no basis to conclude that the charges in this case ever actually impaired his MPOETC certification.

It is plain that Plaintiff was never fired as a result of any of the Pennsylvania or Massachusetts charges, and that he was employed by North Buffalo until his voluntary resignation on October 27, 2017, (see Defs.' Ex. A, ECF No. 161-1, at 2.) It is also apparent that even if Plaintiff subjectively felt that his certification was "seized" as a result of the charges, the MPOETC never informed him as such or revoked his certification, and the documents he has referenced demonstrate that it remained in force. Indeed, Plaintiff was continuously employed during the period his charges were pending. That his certification, in theory, may have been in jeopardy may have caused Plaintiff, who by all accounts takes his status as a law enforcement officer quite seriously, some degree of stress. But even if he subjectively believed that his certification was "seized," and he therefore could not work, he never acted on that subjective impression by resigning, nor has he advanced evidence that there was a loss of certification that kept him from working. And North Buffalo's fax to the MPOETC could not by itself deprive him of the ability "to engage in any of the common occupations of life" or "generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men," Meyer v. Nebraska , 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).

Second, Plaintiff avers a deprivation of a property interest in personal items that he claims Feeney, Rodgers, and Zandarski took from him while seeking to have Plaintiff criminally charged. (Plaintiff's Statement, ECF No. 160, at 2.) As a preliminary matter, the Court notes that Plaintiff has not submitted any record evidence that he requested the return of any property after the charges were dropped.

Plaintiff claims Feeney seize