                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 12-2417
                                      _____________

                                   TIMOTHY D. LEAR,

                                                      Appellant

                                             v.

                         GEORGE ZANIC; BRIAN LEWIS;
                       LAURIE FORSHEY; BRIAN HAUBRICK;
                               TIMOTHY MERCER

                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                   (No. 1-11-cv-01408)
                     District Judge: Honorable William W. Caldwell

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    March 19, 2013

                                      ____________

             Before: FUENTES, CHAGARES, and BARRY, Circuit Judges.

                                   (Filed: April 5, 2013)

                                      ____________

                                        OPINION
                                       ___________

CHAGARES, Circuit Judge.

       In July of 2011, appellant Timothy Lear filed a complaint under 42 U.S.C. § 1983

against a county district attorney, several police officers, and his former girlfriend. The
District Court dismissed the complaint and denied Lear‟s motion to reconsider. For the

reasons explained below, we will affirm.

                                              I.

        We write solely for the parties and will therefore recount only those facts that are

essential to our disposition. Lear‟s complaint contains the following allegations: Lear, a

Pennsylvania State Police (“PSP”) officer, was “involved in a personal intimate

relationship” with defendant Laurie Forshey. Compl. ¶ 22. Without Lear‟s knowledge,

Forshey began a sexual relationship with Huntingdon County district attorney George

Zanic.1 When Lear learned of the relationship, he approached Zanic to complain and ask

questions. In retaliation for this confrontation, Zanic instructed Forshey to report falsely

to law enforcement that Lear had committed a litany of crimes including burglary,

assault, and harassment. Lear was tried for those crimes but acquitted of all charges by a

jury. However, Lear was placed on “restricted duty” by the PSP based on the criminal

charges and because of his defense against the charges in court. The complaint also

alleges that PSP Captain Timothy Mercer and PSP officers Brian Lewis and Brian

Haubrick (collectively the “PSP defendants”) took part in Zanic‟s scheme by encouraging

Forshey to file her claims, by assisting her in doing so, and by placing Lear on restricted

duty.

        Based on these allegations, the complaint maintains that Lear‟s First, Fourth, and

Fourteenth Amendment rights were violated, and seeks recovery under 42 U.S.C. § 1983.

The District Court granted the defendants‟ motion to dismiss, granting leave to amend on

1
    The complaint incorrectly spells the district attorney‟s surname “Zanick.”
                                              2
the first two counts, but denying leave to amend on the third and fourth counts. Rather

than amending the complaint, Lear filed a motion to reconsider, which was denied. He

now appeals the dismissal.

                                               II.2

                                               A.

       The first count of Lear‟s complaint alleges that all five defendants violated his

Fourth Amendment rights by maliciously prosecuting him for the crimes that Forshey

reported. The District Court dismissed this count because Lear failed to allege that he

“suffered a deprivation of liberty consistent with the concept of seizure as a consequence

of a legal proceeding,” as is required by our case law for malicious prosecution claims

brought under 42 U.S.C. §1983. DiBella v. Borough of Beachwood, 407 F.3d 599, 601

(3d Cir. 2005).

       In reviewing the District Court‟s decision, we must decide whether Lear‟s

complaint alleges that he suffered a Fourth Amendment seizure constituting a deprivation

of liberty. While “[p]retrial custody and some onerous types of pretrial, non-custodial

restrictions constitute a Fourth Amendment seizure,” simply being forced to appear at a

trial or pretrial hearings is not sufficient to constitute a deprivation of liberty for a

malicious prosecution claim. Id. at 603 (explaining that “[t]he type of constitutional

injury the Fourth Amendment is intended to redress is the deprivation of liberty

2
 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and 28 U.S.C. § 1291
grants us appellate jurisdiction. We exercise plenary review over a district court‟s order
granting a motion to dismiss. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d
Cir. 1997).

                                                3
accompanying prosecution, not prosecution itself”). However, in an earlier case, we

concluded that a seizure had occurred when the defendant had to post a $10,000 bond,

was restricted from travelling outside Pennsylvania and New Jersey, and was required to

contact pretrial services on a weekly basis. Gallo v. City of Philadelphia, 161 F.3d 217,

222 (3d Cir. 1998) (noting that, based on facts listed, it was a “close question” whether

seizure had occurred).

       On appeal, Lear makes no argument related to any detention or travel restrictions

placed on him before his criminal trial. Instead, he argues that being placed on

“restricted duty” by the PSP “in effect makes a PSP member a prisoner of sorts.” Lear

Br. 13. The complaint states that when a PSP officer is on restricted duty, he may not

wear a uniform outside the barracks, must turn in his weapon, and is not allowed to earn

overtime. Clearly, none of these employment-related restrictions amounts to a

deprivation of personal liberty as contemplated by our case law, which focuses on actual

detention, posting of bonds, and restriction from travel. Thus, we will affirm the

dismissal of the malicious prosecution claim.

                                            B.

       Lear also claims that Zanic and the PSP defendants retaliated against him in

violation of his First Amendment right to petition for redress of grievances. As noted by

the District Court, the complaint contains two distinct retaliation arguments.

       First, Lear alleges that Zanic and two of the PSP defendants retaliated against him

for confronting Zanic about his relationship with Forshey. Zanic allegedly orchestrated

the criminal action, and the two PSP defendants allegedly assisted Forshey with

                                             4
preparing fabrications for Lear‟s trial. The District Court dismissed this claim because it

concluded that Lear‟s discussion with Zanic was not a petition, and therefore there was

no basis to recover under the Petition Clause.

       “[T]he Petition Clause protects the right of individuals to appeal to courts and

other forums established by the government for resolution of legal disputes.” Borough of

Duryea v. Guarnieri, 131 S. Ct. 2488, 2494 (2011). Lear‟s discussion with Zanic about

Forshey was not an appeal to a court or other forum; it was an appeal from one citizen to

another about a private dispute. Lear admits this in his brief, but argues that the fact that

there was no petition “doesn‟t detract from [Lear‟s] „expression‟ activities.” Lear Br. 17.

Regardless of whether Lear‟s speech was expressive, we agree with the District Court

that his conversation with Zanic was not a petition.

       The complaint also claims that by carrying on a police investigation of Lear while

his trial was occurring, Mercer was retaliating against Lear “because Lear defended

himself in court.” Compl. ¶ 53. The District Court concluded that while the Petition

Clause protected Lear‟s use of the courts, his claim could not succeed because his

complaint did not state that the topics raised at trial were a matter of public concern.

       A public employee may bring a retaliation claim under the Petition Clause only if

his petition was a matter of public concern. Guarnieri, 131 S. Ct. at 2493. As the District

Court explained, Lear‟s complaint does not allege that he raised matters of public concern

while defending himself in court. The District Court also pointed out that Lear

subsequently argued that his defense to the criminal charges included allegations of

government corruption. Yet instead of amending his complaint to include reference to

                                              5
his discussion of public corruption, Lear filed a motion for reconsideration and then

appealed to this Court. Because Lear‟s complaint still fails to allege that his defense to

the criminal charges involved matters of public concern, we must affirm.3

                                             C.

       The third count of the complaint alleges that the PSP defendants “appl[ied]

unequally investigative powers, rules, and regulations of the PSP in order to retaliate

against the plaintiff Lear for defending himself in court and for complaining to and about

George Zanick.” Compl. ¶ 56. The District Court dismissed this claim as well,

explaining that public employees can successfully bring standard equal protection claims,

but not equal protection claims alleging that the plaintiff is the only member of the class

facing disparate treatment.

       In Engquist v. Oregon Department of Agriculture, the Supreme Court held that

“ratifying a class-of-one theory of equal protection in the context of public employment

would impermissibly constitutionalize the employee grievance.” 553 U.S. 591, 609

(2008) (quotation marks omitted). Again, Lear argues that his claim is unrelated to his

status as a public employee. Yet this position ignores the complaint‟s clear allegations

that “the purpose of [the PSP defendants‟] unlawful effort was to employ . . . regulations

of the PSP in order to retaliate” against Lear, Compl. ¶ 56, that “PSP uses this [sic]

investigatory and disciplinary procedures in an arbitrary and capricious fashion,” id. ¶ 57,


3
 Lear now argues that the District Court applied the wrong law because he would not
have to meet Guarnieri‟s public concern requirement if he were not a public employee.
However, Lear‟s argument with regard to Mercer hinges on the disciplinary action taken
by the PSP, his public employer. Thus, he cannot avoid application of Guarnieri.
                                             6
and that “the same investigatory and disciplinary processes are unlawfully withheld from

others similarly situated.” Id. ¶ 58. Thus, count three clearly alleges that the three

defendants affiliated with PSP, his public employer, misapplied PSP regulations in order

to take adverse employment action against him. Because the District Court correctly

applied Supreme Court precedent, we will affirm its dismissal of the equal protection

claim.

                                               D.

         The fourth and final count of Lear‟s complaint asserts that Zanic violated Lear‟s

substantive due process rights and his right to privacy by interfering in his relationship

with Forshey.4 The District Court dismissed the claim because Lear did not allege that

Zanic interfered with his right to date Forshey, because Lear did not allege conscience-

shocking behavior, and because the action was barred by the statute of limitations.

         Our law is clear that in order to state a claim for substantive due process, “a

plaintiff must prove the particular interest at issue is protected by the substantive due

process clause and the government‟s deprivation of that protected interest shocks the

conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008). While there appears

to be some dispute over whether a plaintiff‟s right to an intimate relationship is protected,

Lear‟s claim fails because his complaint did not allege that Zanic‟s action as a

government official interfered with Lear‟s right to date Forshey. Instead, Lear argues

that Zanic “targeted the relationship to achieve a sexual conquest using his official


4
  Though the complaint mentions a right to privacy violation, Lear makes no argument in
support of this claim on appeal.
                                                7
position as a credential with Forshey.” Compl. ¶ 60. Zanic‟s alleged use of his position

“as a credential” to win Forshey‟s affection does not amount to a government

infringement on any right Lear may have to maintain a relationship with Forshey.

       To the extent that Lear argues that he should have been allowed to amend his

complaint on this claim,5 we conclude that the District Court‟s decision was not an abuse

of discretion. See Lorenz v. CSX Corp., 1 F.3d 1406, 1413 (3d Cir. 1993) (reviewing

district court‟s denial of leave to amend for abuse of discretion). Though it is

conceivable that Lear could have amended his complaint to allege that Zanic‟s role in the

prosecution amounted to state interference with Lear‟s relationship, Lear‟s brief to the

District Court explicitly disclaimed any assertion that Zanic‟s involvement was taken in

his official capacity.6 Appendix 20b.

       Because count four fails to allege that Zanic violated Lear‟s substantive due

process rights, we will affirm the District Court‟s dismissal.

                                             III.

       For these reasons, we will affirm the judgment of the District Court.



5
  It is unclear whether Lear challenges the District Court‟s decision to deny leave to
amend. Principally, he argues that his complaint was sufficient and that no amendment
was necessary. Yet the final page of his brief contains the following sentence:
“Admittedly, appellants argue here that the complaint was clearly sufficient and met
minimal pleading standards on their faces even though the court granted leave to amend
under futile conditions was permitted.” Lear Br. 21.
6
  Had Lear amended his complaint to allege that Zanic‟s role in the prosecution should be
considered on count four, Zanic may have been shielded by prosecutorial immunity. See
Yarris v. County of Delaware, 465 F.3d 129, 135 (3d Cir. 2006) (noting that prosecutorial
immunity applies to actions associated with the judicial phase of the criminal process).

                                              8
