Jon Campisi Aug. 28, 2013, 12:25pm


A federal judge in central Pennsylvania is allowing a sexual assault

complaint against a state trooper to proceed, despite the fact that the jurist granted immunity to the law enforcement officer on certain claims.

In a partial victory for the plaintiffs, Faith Kintzel and her husband, Brian, U.S. District Judge James M. Munley, of the Middle District of Pennsylvania, ruled that the federal lawsuit against Pennsylvania State Trooper Stephen Kleeman could move forward.

Faith Kintzel is suing Kleeman over allegations that the defendant had forced sexual intercourse with the woman three years ago.

According to the complaint, Kleeman had charged Faith Kintzel with summary harassment back in April 2010.

The woman eventually agreed to a deal in which the criminal charges would be dismissed if Kintzel complied with certain conditions for 60 days, the record shows.

Following the hearing, the trooper asked Kintzel if she wanted to have coffee with him sometime, to which the woman responded that she did not.

Kleeman then asked the plaintiff to accompany him to a cemetery where they could talk in private the complaint states. It was at that time that Kleeman allegedly had intercourse with Kintzel against the woman’s will.

Kintzel and her husband ended up suing Kleeman for false arrest and imprisonment, excessive use of force, due process violations, sexual assault and battery, and loss of consortium.

The lawsuit was filed in federal court in Harrisburg because it contained alleged federal civil rights violations.

In an Aug. 19 memorandum, Munley agreed to dismiss the defendant from the case to the extent that he is being sued in his official capacity due to governmental immunity, but the judge kept Kleeman in the litigation in his individual capacity.

Kleeman had argued that he could not be held liable because he is protected by Eleventh Amendment immunity, which bars damages claims against both state agencies that do not waive sovereign immunity and state agencies’ employees sued in their official capacities.

The judge, however, disagreed with the defendant’s argument that he should be covered by sovereign immunity against certain state law claims in the suit.

Munley ended up denying Kleeman’s motion to dismiss counts of excessive force, sexual assault and battery, and false imprisonment.

On the latter, the judge wrote that he was dismissing the claim to the extent that it asserts a federal civil rights claim; he let the count stand to the extent that it asserts a state tort claim.

Munley also denied the trooper’s motion to dismiss the excessive use of force claim and he also denied a bid to toss the substantive due process claim.

The judge did, however, agree to grant dismissal of the loss of consortium claim that had been filed on behalf of Kintzel’s husband, ruling that under Pennsylvania law a spouse is not entitled to cover on loss of consortium unless they were married at the time of the alleged injury.

In this case, Kintzel married her husband after the events alleged in the complaint occurred.

As for his agreeing to let stand the false imprisonment count, Munley noted that the complaint fails to specify which theory the plaintiff plans to proceed on – under federal civil rights statutes or state tort law.

Kleeman had argued that the claim should be dismissed regardless since the plaintiff had a safe means of escaping or leaving during the alleged incident.

The judge, however, agreed with the plaintiff’s argument that she was essentially ordered to remain in the patrol car while Kleeman allegedly had his way with the woman.

The defendant’s argument that the woman had a safe means by which to escape is an argument regarding the facts, Munley wrote, and it is “too early in the proceedings to make factual determinations as to what actually occurred.”

Munley stated that while he was allowing the false imprisonment claim to remain in a state law capacity, he was dismissing the count as to any federal civil rights claim.

Specifically, the judge wrote that the claim would be dismissed because he already decided to dismiss the federal false arrest claim, and one could not proceed without the other.

Munley dismissed the false arrest claim because, he wrote, the trooper was not investigating a crime at the time of the alleged sexual assault, and a claim for false arrest “simply does not fit into the facts plaintiff has alleged.”

As for the claim of sexual assault and battery, Kleeman had argued that the lawsuit doesn’t indicate that the plaintiff ever verbally informed the trooper that she didn’t want to have sex.

Munley refused to dismiss the claim, though, writing that he must accept as true all factual allegations in the complaint at this state of the litigation.

“The case is not at the proper procedural posture to argue the facts of the case,” the judge wrote.

Munley wrote that the substantive due process claim could also move forward at this stage, disagreeing with the defendant that the woman couldn’t establish such a claim based upon a sexual assault.

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