PITTSBURGH – A Pennsylvania State Police officer argues that a Western Pennsylvania man who alleged his civil rights were violated when he was arrested for allegedly molesting and raping his stepdaughter, charges which he claimed were untrue and recanted by the girl, has failed to plead a count for reckless investigation.
Tim Burton of Washington County first filed suit in the U.S. District Court for the Western District of Pennsylvania on Sept. 13 versus Pennsylvania State Police Officer Marc Ziegler of Beaver.
“As of May 2017, Tim Burton, then age 43 was a successful businessman. He was married and had a stepdaughter. He was also a respected coach. Burton had 20 years of experience in the major construction industry, specifically related to power generation facilities, and had a great job. He had no prior record, other than a summary offense,” the suit said.
“On May 7, 2017, his stepdaughter made allegations against him to the defendant, a trooper then stationed at the Belle Vernon barracks. Specifically, the stepdaughter made allegations of a sexual nature against the plaintiff. The very next day, however, the stepdaughter went to the Belle Vernon barracks recanted her allegations to the defendant, Trooper Ziegler. Further, the stepdaughter’s own mother stated to defendant Ziegler that she did not believe her own daughter as to the allegations.”
However, the suit charged that Ziegler omitted the stepdaughter’s rescinding of her story from his investigative report and two days later, on May 10, 2017, allegedly without conducting any further investigation, filed felony charges against Burton of first-degree forcible rape and 13 other offenses, which were nearly all sex-related charges. Those charges carried the potential of life imprisonment.
“Moreover, Mr. Burton, innocent of all charges, was accused of the worst thing imaginable: Molesting and raping his stepdaughter, all of which was totally untrue, and which an actual investigation would have revealed. At a preliminary hearing, because the Magistrate Judge is required to accept the government’s version as true and is not permitted to make credibility determinations, the charges were held for Court,” the suit stated.
“The charges were published and disseminated in the media. Further, defendant Ziegler had an agreement with plaintiff’s counsel to not arrest the plaintiff; the plaintiff agreed to appear and face the charges, because he was/is innocent. Defendant Ziegler reneged on this agreement with Mr. Burton’s counsel and had Mr. Burton arrested, just to humiliate him. After a jury trial, however, a jury, on Sept. 11, 2019, found the plaintiff not guilty of most of the offenses; the jury was hung on all other charges. The plaintiff was not convicted of a single count.”
Criminal proceedings were terminated in the plaintiff’s favor on Feb. 7, 2020, when a Washington County judge dismissed all remaining charges with prejudice, upon motion of the District Attorney.
The suit claimed that Ziegler did not conduct a title search on the plaintiff’s boat, an alleged site of the alleged crimes, never asked any questions of the accuser’s mother, never once went to the plaintiff’s home, did not investigate charges of child pornography possession levied against the accuser’s father and did not verify if the stepdaughter was a reliable source of information.
UPDATE
Ziegler’s counsel filed a partial motion to dismiss for failure to state a claim on Feb. 7, arguing that Burton did not properly plead a claim for reckless investigation.
“At Count II, plaintiff asserts that defendant Ziegler did not investigate the allegations against him sufficiently prior to charging him. Plaintiff hinges this assertion upon the allegation that his step-daughter reportedly recanted her allegations. This is not a proper claim as such a claim is not cognizable in the Third Circuit,” the dismissal motion stated.
“To the extent a cause of action for ‘reckless investigation’ exists, it requires that a plaintiff ‘must show that a police officer acted intentionally or recklessly, in a manner that shocks the conscience, in failing to investigate.’ A negligent failure to investigate does not create liability.”
According to defense counsel, the right at issue – to be free from a “reckless” investigation – is “not clearly established.”
“There is no legal basis upon which plaintiff bases his reckless investigation claim and numerous courts in this Circuit…have dismissed similar claims arising under the Fourteenth Amendment. Nor is there any basis for such a claim pursuant to the Due Process clause of the Fifth Amendment as the defendant is a state actor [and not a federal actor]. As such, the defendant is entitled to dismissal of Count II for reckless investigation and this claim should be dismissed with prejudice because amendment would be futile,” per the dismissal motion.
For counts of malicious prosecution and reckless investigation in violation of the Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution, the plaintiff is seeking all compensatory damages to which he is entitled, punitive damages, as well as all investigative costs, litigation costs, interest and court costs, attorney’s fees for all work in this action, as well as those incurred to defend him the underlying criminal case, case costs incurred in the underlying criminal case and for any other relief which this Honorable Court deems appropriate, whether legal or equitable, in addition to a jury trial.
The plaintiff is represented by Noah Geary of Noah Geary Law Offices, in Pittsburgh.
The defendants are represented by Deputy Attorney General Phillip E. Raymond and Senior Deputy Attorney General Scott A. Bradley of the Pennsylvania Attorney General’s Office, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-01215
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com