                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-19-2006

Maloney v. Reading
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1876




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Recommended Citation
"Maloney v. Reading" (2006). 2006 Decisions. Paper 313.
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                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   NO. 06-1876
                                 ________________

                               MICHAEL MALONEY

                                          v.

                CITY OF READING; WALLY SCOTT; DEBORAH
               LACHINA; BRIAN CRAZE; CONSTABLE DENNIS
               MULLIGAN; CONSTABLE HECTOR LUIS CARILLO

                     ____________________________________

                   On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                            (D.C. Civ. No. 04-cv-05318)
                     District Judge: Honorable Juan R. Sanchez
                          __________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                October 10, 2006

                   Before: Fisher, Aldisert and Weis, Circuit Judges


                              (Filed: October 19, 2006)

                                 _________________

                                     OPINION
                                 _________________

PER CURIAM

      Appellant Michael M. Maloney was arrested on March 24, 2004 by defendant

Constables Dennis Mulligan and Hector Luis Carillo, brought before defendant
Magisterial District Judge Wally Scott, and charged with the summary offense of failing

to secure a $30.00 housing permit in violation of a City of Reading ordinance. Judge

Scott set Maloney’s bail at $4,522.75. Maloney was shackled and taken to Berks County

Prison, and was not able to post bail until the following day.

       Maloney filed suit in United States District Court for the Eastern District of

Pennsylvania. Invoking 42 U.S.C. § 1983 and various common law causes of action, he

claimed that his Fourth, Sixth, and Fourteenth Amendment rights were violated by the

arrest and wrongful prosecution, and the misappropriation of his bail money by Judge

Scott. Maloney also sued defendants Brian Craze, a City of Reading Codes Enforcement

Officer, and Deborah Lachina, another District Justice, alleging that they fabricated

evidence that he was the owner of 415 Miltmore Street, Reading, Pennsylvania, a

fabrication that led to his arrest for housing code violations. Maloney also claimed that,

on August 10, 2004, the Honorable Forrest G. Schaeffer of the Berks County Court of

Common Pleas dismissed all charges against him and ordered that the bail money be

returned.

       District Justices Scott and Lachina moved to dismiss the complaint. Defendants

Craze and the City of Reading answered the complaint, admitting that Craze had signed

citations charging Maloney with failure to secure the property on Miltmore Street, cut

weeds, and remove trash, but asserting that he was authorized to do so, and further

asserting that Maloney was the owner of record pursuant to a quitclaim deed duly

recorded on December 19, 2002. Craze further asserted that Maloney actually pleaded

                                             2
guilty to one housing code violation before Judge Schaeffer in exchange for dismissal of

four other housing code citations.1 Defendants Mulligan and Carillo also answered the

complaint and asserted that Maloney’s arrest was made pursuant to a valid warrant issued

by District Justice Scott.

       In an order entered on March 8, 2005, the District Court dismissed the complaint

as to the District Justices on the basis that they, as judges, were entitled to absolute

immunity. Following that, discovery ensued and Maloney’s deposition was taken. Craze

and the City of Reading then moved for summary judgment, asserting, among other

things, that Maloney had pending housing code citations before four different Magisterial

District Justices as of March 19, 2003. Mulligan and Carillo also moved for summary

judgment, contending that they were entitled to qualified immunity because they arrested

Maloney pursuant to a valid warrant.

       The District Court held a hearing on the summary judgment motion, at which

Constable Mulligan testified. Maloney was permitted to cross-examine Mulligan

concerning the warrant authorized by District Justice Scott that resulted in his arrest.

       In an order entered on February 8, 2006, the District Court granted summary

judgment to the remaining defendants on Maloney’s section 1983 claims. The court held

that the Constables were entitled to qualified immunity, Harlow v. Fitzgerald, 427 U.S.


   1
     In fact, the defendants submitted a copy of the relevant Verdict and Sentence In A
Summary Appeal, issued by Judge Schaeffer, which established that Maloney pleaded
guilty to § 108.2 violation concerning failure to secure the premises. See Docket Entry
No. 11, Exhibit “A.”
                                               3
800, 818 (1982), because they arrested Maloney pursuant to at least one facially valid

warrant issued by a magisterial district judge, and their reliance on the warrant was

reasonable. They had no reason to believe it was not lawfully and validly issued.

Furthermore, Maloney’s contention that he was not the owner of record of the properties

in question was unsupported by any evidence.2 The court also held that there was no

evidence from which a reasonable jury could find that Craze had fabricated evidence

concerning Maloney’s ownership of the property on 415 Miltmore Street, and that

summary judgment was appropriate for the City of Reading under Monell v. Dep't of

Social Services of City of New York, 436 U.S. 658 (1978), because Maloney had come

forward with no evidence of an unlawful policy or custom by the City allowing for arrests

to be made on insufficient cause.

       The District Court exercised its supplemental jurisdiction over Maloney’s common

law claims, see, e.g., United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-26

(1966), and awarded summary judgment to the defendants here as well. The court

reasoned that the City of Reading was entitled to governmental immunity under the state

Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. §§ 8541-64, because the

acts alleged did not fall into any of the statutory exceptions to immunity, 42 Pa. Cons.

Stat. Ann. § 8542(b). Furthermore, as an employee acting within the scope of his duties,


   2
      The court explained: “He does state in his opposing brief he procured certified
copies of deeds for the properties in question to establish he did not own the properties.
Pl.”s Br. 2. This Court, though, cannot simply take Maloney at his word that such
documents exist. See District Court Memorandum, at 5.
                                             4
Craze also was immunized from suit, and, even if he was not, Maloney had failed to

adduce evidence of wrongful conduct. The District Court also found insufficient

evidence of wrongful conduct on the part of the Constables, that is, as to Maloney’s claim

of false arrest, he failed to show that probable cause was lacking. As to his claim of

assault and battery, there was no evidence of an excessive use of force. As to the claim of

malicious prosecution, Maloney had conceded that the Constables played no role

whatever in initiating the summary proceedings against him, see Rose v. Bartle, 871 F.2d

331, 349 (3d Cir. 1989). Maloney appeals.

       We will affirm. As a threshold matter, an issue that is not discussed in the brief is

waived. See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 202-03 (3d Cir. 2004).

With respect to summary judgment, Federal Rule of Civil Procedure 56(e), concerning

the requirements for opposing a motion for summary judgment, provides that Maloney, as

an adverse party, “may not rest upon the mere allegations or denials of [his] pleading, but

[his] response, by affidavits or as otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial.” We conclude that summary

judgment was proper for the reasons given by the District Court, because there was an

insufficient evidentiary basis on which a reasonable jury could find in Maloney’s favor on

either his constitutional or common law claims. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249-50 (1986).

       With respect to Maloney’s contention on appeal that the acts of District Justice

Scott were not judicial and thus not immunized, we note, as did the District Court, that

                                              5
judges are immunized from a suit for damages for acts done in the performance of their

judicial duties. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). Maloney argues,

however, that, insofar as Judge Scott initiated the proceedings against him, an act that is

prosecutorial in nature, he is not entitled to the immunity enjoyed by judges in the

performance of judicial acts, nor is his act of misappropriating the bail money

immunized.3

       These arguments fail, however, because Maloney came forward with no evidence

that his bail money was misappropriated by anyone, let alone Judge Scott, or that the

summary proceedings for the housing code violations were initiated by anyone other than

a code enforcement officer. Maloney’s second contention on appeal is that the arrest

warrant was not issued by a neutral magistrate. This actually is a contention that the

warrant was based on fabricated evidence. It fails for the same reason, that is, lack of

evidentiary support, and, in any event, is belied by the guilty plea before Judge Schaeffer.

       Maloney was given ample opportunity for discovery, had the ability to conduct it,

as is clear from our review of the entire record, and was even given a hearing at the

summary judgment stage. His failure to move beyond bald and unsupported allegations

was a proper basis for dismissal of his action prior to a trial. Cf. Fed. R. Civ. Pro. 59(e).

       We will affirm the orders dismissing the complaint as to the judicial defendants

and granting summary judgment to all other defendants. The judicial appellees’ motion


   3
    Maloney does not dispute that the issuance of a warrant for an arrest is a judicial act.
His assertion that the warrant was issued after his arrest finds no support in the record.
                                              6
to be excused from filing a brief is denied as stated, but the Court will treat the motion as

the judicial appellees’ brief insofar as it argues for affirmance.




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