PITTSBURGH – A federal judge has thrown out a count for reckless investigation, in a lawsuit brought by a Western Pennsylvania man who alleged that his civil rights were violated when he was arrested for allegedly molesting and raping his stepdaughter, charges which he claimed are untrue and were recanted by the girl.
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.
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.
UPDATE
U.S. Magistrate Judge Lisa Pupo Lenihan concurred with the defense in an April 25 memorandum opinion, ordering that the reckless investigation count be conditionally dismissed, upon the plaintiff filing an amended complaint by May 18.
“District Courts in this circuit have addressed a claim for reckless investigation under the Fourteenth Amendment. These District Court cases appear to predate the Third Circuit’s opinion in Harvard v. Cesnalis, where the Court of Appeals specifically stated that a claim for reckless investigation could only arise under the Fourth Amendment. Therefore, plaintiff’s attempt to proceed pursuant to the Fourteenth Amendment appears to be unfounded in light of the Third Circuit’s brief analysis in Harvard. The factual allegations of the complaint, taken as true, suggest that defendant was, at a minimum, reckless in bringing the 14 charges against plaintiff without any corroboration/investigation whatsoever, especially when exculpatory evidence was readily available in public records,” Pupo Lenihan stated.
“The Court must permit a curative amendment in a civil rights action under Section 1983 before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested, unless doing so would be ‘inequitable or futile.’ Plaintiff has requested leave to amend. Allowing plaintiff the opportunity to amend his complaint would be neither inequitable nor futile. Here, taking all of plaintiff’s allegations as true, defendant’s motion to dismiss should be granted without prejudice so that plaintiff may amend his complaint.”
For a count of malicious prosecution in violation of the Fourth Amendment 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