PITTSBURGH – A federal judge has approved one officer’s attempt to be dismissed from litigation brought by a Pitcairn business owner who claimed she was targeted for racial discrimination, harassment, code violations and false prosecution by local authorities after publicly criticizing the police’s perceived use of violence on Black citizens on social media.
Allyson Calloway first filed suit in the U.S. District Court for the Western District of Pennsylvania on Feb. 3 versus the Borough of Pitcairn, its Mayor Margaret Stevick, its Police Chief Scott Farally, its Code Enforcement Officer Nick Turner, Pitcairn Police Officer Brendan Linebarger and Allegheny County Police Officer William Good.
“Calloway is a Black resident and business owner in Pitcairn, Pennsylvania. On or about Nov. 17, 2020, Calloway publicly via Facebook criticized the Pitcairn police for violence against Black people, and had received media attention and social media fame for those criticisms,” the suit said.
“Upon information and belief, including, but not limited to, the fact that defendants Stevick, Turner and Farally as well as people personally and/or professionally connected to the defendants have commented on Calloway’s Facebook posts which are critical of law enforcement, Defendants were aware of her public criticisms. After Calloway’s Nov. 17, 2020 criticisms, the Pitcairn Police engaged in a retaliatory campaign of harassment of Calloway.”
Calloway alleged this harassment took several forms, including:
• Turner, who upon information and belief was acting at the behest of Stevick and/or Farally, on numerous occasions harassed Calloway and interfered with her businesses by trying to force her to remove her sign from her business, while not targeting the substantially similar signs of businesses owned by white people;
• Turner, who upon information and belief was acting at the behest of Stevick, attempted to have Calloway’s landlord evict her;
• Turner, who upon information and belief was acting at the behest of Stevick and/or Farally, attempted to convince the Monroeville Fire Inspector to wrongfully fail Calloway’s inspection;
• On Jan. 19, 2021, Pitcairn Police and Good knowingly caused Calloway to be falsely charged without probable cause and knowledge of actual innocence with felony hindering prosecution and misdemeanor tampering with evidence. Calloway was found not guilty at trial;
• Shortly before Calloway’s trial on Aug. 21, 2021, and upon Stevick’s instruction, Turner, demanded to be allowed to search Calloway’s store premises, falsely claiming that he was investigating a crime;
• Upon information and belief, one of defendants and/or someone at one of defendants’ direction have repeatedly called Children and Youth Services on Calloway, making a variety of false claims that Calloway is committing child abuse;
• In or around Summer 2021, Stevick approached Calloway and falsely told Calloway that that a business owner was complaining about chalk on the sidewalk. Stevick did not know that Calloway was the owner of said business. Upon learning same, Spevick stated, “Today it’s chalk, tomorrow it’s graffiti.”
• In or around September 2021, Farally illegally and without a warrant or probable cause or permission searched Calloway’s business;
• Shortly before her trial, Calloway was again knowingly falsely charged without probable cause and knowledge of actual innocence by Pitcairn Police, specifically, Linebarger, with misdemeanor institutional vandalism and other summary offenses;
• Various Pitcairn police officers parking their cars in front of one of Calloway’s two businesses, and in particular, blocking entry into one of her businesses. On one of those occasions, when Calloway asked the officers to not block the entrance to her store, she was told by one of the officers that “his directive was to sit here.”
“Upon information and belief, including but not limited to the fact that Stevick stated, ‘There are too many African-Americans here’, some or all of the actions of defendants complained of in this lawsuit are because Calloway is Black, in addition to that Calloway engaged in protected activity under the First and Sixth Amendments,” the suit stated.
After the plaintiff’s filing of an amended complaint on March 8, counsel for Good filed a motion to dismiss for failure to state a claim on March 11.
According to Good, Calloway failed to properly plead counts of false arrest and malicious prosecution against him, and he is further entitled to qualified immunity.
“To state a claim for false arrest when the defendant acted pursuant to a warrant, the plaintiff must make factual allegations sufficient to set (1) that the police officer ‘knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant;’ and (2) that ‘such statements or omissions are material, or necessary, to the finding of probable cause,” the dismissal motion stated, in part.
“Plaintiff does not make any factual allegations to support either element of this test. Merely asserting that plaintiff was charged with crimes defendants knew she did not commit is not sufficient. Moreover, plaintiff never alleges that she was detained or arrested in relation to the criminal case referred to in Count II. As defendant is not alleged to have arrested plaintiff, plaintiff has failed to aver a false arrest.”
Good’s counsel also argued that Calloway’s claim does not show that he acted maliciously or for a purpose other than bringing her to justice, and that he should be entitled to qualified immunity.
“The claim against defendant Good should be dismissed because he is entitled to qualified immunity. Individual governmental officials named in Section 1983 actions in their individual capacity enjoy qualified immunity from liability as long as ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” per the dismissal motion.
Counsel for Calloway filed a brief opposing the dismissal motion on March 30, arguing that her false arrest and malicious prosecution claims should not be dismissed, and that Good is not entitled to qualified immunity.
“Calloway has alleged her actual innocence in this case. She also alleged that she was found “not guilty” at trial. Finally, she alleged that Good knew of her actual innocence prior to causing her to be charged. Id. Taking those facts in the light most favorable to Calloway, the non-moving party, would allow for the logically reasonable conclusion that Good knew Calloway was innocent and arrested her anyway; a fact that compels a conclusion that Good did not have probable cause to arrest her in the first instance,” according to the brief.
“Calloway alleged that Good ‘caused’ Calloway to be falsely charged without probable cause. Such allegation is sufficient at this stage to state a claim for malicious prosecution against Good. Particularly, the fact that Good ‘knowingly caused Calloway to be falsely charged without probable cause’ when taken in the light most favorable to Calloway, would allow for the logically reasonable conclusion that Good ‘failed to disclose exculpatory evidence to prosecutors…interferes with the prosecutor’s ability to exercise independent judgment.”
Calloway continued that Good is not entitled to qualified immunity.
“Given the facts of the amended complaint, Good is necessarily arguing to this Court that it is no ‘clearly established’ that a law enforcement officer cannot knowingly arrest innocent people. Calloway posits that it is not necessary to go through the Saucier process, due to the blatantly obvious nature of the violation,” the brief stated.
“Certainly, if Good did not know that knowingly arresting an innocent person was unconstitutional, then he would not be entitled to qualified immunity anyway; no reasonable officer would believe that knowing someone is innocent, and falsely charging them anyway is permitted under the Constitution.”
UPDATE
In a June 6 memorandum opinion, U.S. District Court for the Western District of Pennsylvania Nora Barry Fischer approved Good’s motion to be dismissed from the case.
“Calloway needed to ‘point to facts suggesting that [Good] lacked probable cause to believe [she] had committed the offense for which [she] was arrested. Instead, after removing the conclusory allegation that Good lacked probable cause to arrest Calloway or initiate criminal proceedings against her, the Court notes that Calloway makes no factual averment of any kind regarding the probable cause element of her claims,” Fischer stated.
“Lacking supporting factual averments, Calloway does not set out a plausible false arrest or malicious prosecution claim against Good. It is also well established that a defendant cannot be liable under Section 1983 absent personal involvement in the alleged constitutional violations such that this bare bones pleading is insufficient to state a plausible claim against Good. Accordingly, the Court will grant Good’s motion to dismiss him from this action.”
Fischer added that despite two amended complaints brought in this case, Calloway had not involved Good in any of the numerous factual allegations levied against the defendants.
“She provided quotes of what certain defendants said to support her claims, and she gave details about the actions certain defendants took to harm her. Indeed, the Borough defendants did not seek to dismiss the claims against them and instead filed an answer,” Fischer said.
“These other factual details demonstrate that Calloway has the ability to set forth facts against those that she believes violated her rights, and yet she has not done so against Good, despite twice amending her complaint. Again, ‘judicial experience and common sense,’ indicate that any further amendment would be futile because Calloway would not set forth factual allegations against Good that would plausibly show entitlement to relief. Thus, the Court will dismiss the complaint against Good with prejudice.”
For counts of civil rights violations under 42 U.S.C. Sections 1981 and 1983, these being retaliation under the First Amendment and Sixth Amendment to the U.S. Constitution, false arrest and malicious prosecution, Monell liability and race discrimination, the plaintiff is seeking damages, jointly and severally where appropriate, to include both economic and non-economic compensatory damages, emotional damages, humiliation, embarrassment, pain and suffering, loss of enjoyment of life, as well as punitive damages, attorney’s fees, and costs of suit.
The plaintiff is represented by Martell Harris of The Trial Law Firm, in Pittsburgh.
The defendants are represented by Jordan P. Shuber and Michael Shakley of Dillon McCandless King Coulter & Graham in Butler, plus Shelley K. Rohrer and Dennis R. Biondo Jr. of the Allegheny County Law Department, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-00197
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com