PITTSBURGH – Subsequent to dismissal by a federal judge, a Western Pennsylvania man has appealed his case against Walmart, alleging he was wrongfully charged with theft and malicious prosecution, to the U.S. Court of Appeals for the Third Circuit.
Thomas Allen Givens of Elco initially filed suit in the Washington County Court of Common Pleas on June 9 versus Wal-Mart Stores, Inc., of Bentonville, Ark.
(The case was later removed to the U.S. District Court for the Western District of Pennsylvania on July 11.)
According to Givens’s complaint, he was charged by the West Brownsville Police Department for an alleged retail theft at a Walmart Supercenter, on Kendall Drive in Brownsville. Givens alleged that the store’s loss prevention agent, Chad Shonts, accused him of putting several tools into blue cloth bags, during his visit to the Walmart store on May 13, 2021.
Givens further alleged that Shonts published his name and identified him as a criminal offender to the West Brownsville Police Department – meanwhile, Givens added he was working on that day and was not even present at the Walmart store. The plaintiff also claimed he did not see the police report until after June 17, 2021, and never received a copy of the surveillance video despite filing a subpoena to obtain it.
According to Givens’s suit, though the case against him was dismissed. Givens claimed he suffered defamation and points to Walmart’s alleged negligence for falsely reporting his name to police, which caused him to lose several job opportunities.
In response to Walmart’s first motion to dismiss, the plaintiff filed an amended complaint, and replaced the original version’s four counts with only one count sounding in malicious prosecution under Pennsylvania common law.
On Aug. 25, Walmart filed a motion to dismiss the case, for failure to state a claim upon which relief could be granted.
“Presently, even accepting plaintiff’s factual allegations as true, and leaving aside his bare allegations or legal conclusions, this Court is faced with a situation in which the police were investigating a retail theft at Walmart Store No. 4501, and in the course of their investigation, one of the individuals detained for the theft confessed to the crime, and identified plaintiff as one of two other individuals participating in the retail theft,” the motion to dismiss stated.
“The police then made the independent decision to charge plaintiff, not Walmart. Given these circumstances, even if you assume for the purposes of this motion that Walmart’s employee also provided false information to police with an improper motive (which is certainly disputed), the police had an independent factual basis for probable cause and to initiate charges against plaintiff.”
Further, the motion stated that the plaintiff’s allegations that Chad Shonts’ identification of him was fabricated “lacks the necessary further support in the pleadings.”
“In order to show a lack of probable cause based alleged fabricated evidence, plaintiff must show ‘persuasive evidence supporting a conclusion that the proponents of the evidence are aware that evidence is incorrect or that the evidence is offered in bad faith.’ A pleading must contain allegations describing such persuasive evidence in order to survive a motion to dismiss. No such persuasive evidence is present in plaintiff’s amended complaint,” the motion said.
“For these reasons, the Court should find probable cause existed here as matter of law. With probable cause established, plaintiff cannot sustain a cause of action for malicious prosecution, has failed to state a claim for which relief can be granted, and such claim should be dismissed with prejudice.”
Additionally, the motion stated that Givens “does not provide the Court with any information or pleadings supporting that the report to police was false or made with malice, and the Court should recognize these pleadings as nothing more than conclusory and threadbare allegations reciting the elements of the claim.”
In an opposing brief towards the dismissal motion filed on Sept. 8, the plaintiff steadfastly maintained his innocence.
“Walmart’s employee, Shonts called the police to report a crime. In response, Officer Morelli appeared on scene and talks to a suspect named Arram Nelson and to Walmart staff who both identify Givens as an alleged thief. However, Walmart pressed for the prosecution of Givens by the statements and actions of its agents, employees and servants. Walmart staff identify Givens not only through personal observation, but on a video recording and do so based upon prior incidents. There is no indication in the affidavit of probable cause that Officer Morelli knew Givens’s identity independent from what the third parties told him,” the brief stated.
“As the victim, Walmart clearly desired to prosecute those committing retail theft and following that desire Officer Morelli relied upon the identification of Given’s by Walmart personnel as stated in his affidavit of probable cause. The inclusion of Givens’s identification by Walmart loss prevention personnel not only based upon personal observation on the day in question, but by replay of video surveillance informed by their experience of ‘prior incidents’ with Givens supported the fact that identification of Givens by Walmart agents, employees and servants was necessary to establish probable cause.”
Given argued that in supplying false identification of him, Walmart took away Officer Morelli’s discretion to file charges and for these reasons, Walmart, as the victim of theft, is “the private prosecutor that made a false statement as alleged in the amended complaint because there was no factual basis to identify Given as a perpetrator of this crime when he was not in the Supercenter on the date in question.”
“Accordingly, probable cause was lacking as circumstances did not support the belief that Givens was guilty of retail theft,” the brief said.
U.S. District Court for the Western District of Pennsylvania Judge Christy Criswell Wiegand granted Walmart’s motion to dismiss with prejudice, in an order issued on Sept. 23.
“Under Pennsylvania law, probable cause exists when there is a reasonable ground of suspicion, supported by the circumstances, that would cause an ordinary prudent person to believe that the individual is guilty of the offense. Probable cause is an objective inquiry that focuses on the facts and circumstances surrounding the arrest. The existence of probable cause is ‘an absolute defense’ to a malicious prosecution claim,” Wiegand stated.
“Walmart argues that probable cause existed for Givens’s arrest for retail theft because a third party – with no connection to Walmart – identified Givens as the shoplifter. This third party, Nelson, was approached by Morelli at the scene of the crime. Nelson confessed to Morelli that he had acted with Givens and Wolfe in carrying out the retail theft. These facts are fatal to Givens’s amended complaint. Here, Morelli accepted Nelson’s identification of Givens in good faith. Having just confessed to and provided details about the crime, Nelson was clearly a party who seemed knowledgeable about the situation. Nelson’s identification of Givens, even absent the additional information from Walmart, was sufficient to establish probable cause under Pennsylvania law.”
As Wiegand found both that “probable cause existed for Mr. Givens’s arrest and it provides a complete defense to Mr. Givens’s claim, amendment would be futile”, the judge dismissed the plaintiff’s complaint with prejudice.
UPDATE
On Oct. 21, counsel for the plaintiff notified the Court of their intention to appeal Wiegand’s decision to the U.S. Court of Appeals for the Third Circuit.
“Notice is hereby given that Thomas Allen Givens, the plaintiff in the above-named case, hereby appeals to the United States Court of Appeals for the Third Circuit from the Order of Sept. 23, 2022 granting the defendant’s motion to dismiss the amended complaint and that dismissed the plaintiff’s amended complaint with prejudice and without leave to file an amended complaint,” the notice stated.
For one count of malicious prosecution, the plaintiff is seeking damages in excess of $50,000, plus interest, costs, fees and any other relief that the court deems just and proper.
The plaintiff is represented by John E. Egers Jr. of Julian Law Firm, in Washington, Pa.
The defendant is represented by G. Richard Murphy and Rebecca Sember Izsak of Thomas Thomas & Hafer, in Pittsburgh.
U.S. Court of Appeals for the Third Circuit case 22-2989
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-01006
Washington County Court of Common Pleas case C-63-CV-2022-3939
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com