Free Answering Brief in Opposition - District Court of Delaware - Delaware

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Not Reported in F.Supp.2d 2004 WL 906259 (E.D.Pa.) (Cite as: 2004 WL 906259 (E.D.Pa.))

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Motions, Pleadings and Filings Only the Westlaw citation is currently available.

United States District Court, E.D. Pennsylvania. Gregory CUMMINGS, et al. v. CITY OF PHILADELPHIA, et al. No. Civ.A. 03-0034. April 26, 2004. Tshaka LaFayette, LaFayette & Associates PC, Philadelphia, PA, for Plaintiffs. Lynne A. Sitarski, City of Philadelphia Law Department, Deputy City Solicitor, Philadelphia, PA, for Defendants. MEMORANDUM AND ORDER HUTTON, J. *1 Currently before the Court are Defendants City of Philadelphia and Detective Theodore Ryan's Motion for Summary Judgment (Docket Nos. 10 & 11), Plaintiffs' Response thereto (Docket Nos. 12 & 13), Defendants' Reply to Plaintiffs' Response (Docket No. 17), Plaintiffs' Motion for Leave to File a Second Amended Complaint (Docket No. 16), Defendants' Response thereto (Docket No. 18), and Plaintiffs' Reply to Defendants' Response. I. PROCEDURAL AND FACTUAL BACKGROUND [FN1] FN1. To the extent the facts are in dispute, they are presented in the light most favorable to the Plaintiff. See Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993). This case arises out of the allegedly wrongful arrests of Plaintiffs Gregory Cummings ("Cummings") and his mother, Shirley Baker ("Baker") (collectively "Plaintiffs"). On January 2, 2001, Cummings was

arrested by Philadelphia police officers on warrant # 254785. On May 15, 2001, Baker was arrested on warrant # 254786. The arrest warrants were signed by a bail commissioner of the Philadelphia County Court of Common Pleas pursuant to Criminal Complaints from the Office of the District Attorney that were based on affidavits of probable cause filled out by Defendant Detective Theodore Ryan. In the Amended Complaint, Plaintiffs challenge the validity of these warrants arguing, inter alia, that Detective Ryan did not have probable cause to obtain them and that Defendant City of Philadelphia ("City") failed to adequately train its investigating officers. Warrants # 254785 and # 254786 are based on the story of Tiffany Robinson, the daughter of Cummings' ex-girlfriend, Defendant Katherine Sessions. Cummings and Sessions had been in an ongoing custody battle over Cummings' son Jabree, who was then in Sessions' custody. On November 27, 2000, Robinson, who was 15 years old at the time, reported to police that Baker pulled alongside her in a car and yelled, "Listen you little bitch, tell your mother to give me my grandson back, or I'll kill her." Robinson also reported that before the car drove off, Baker fired three gun shots at her. Robinson was uninjured. Cummings was allegedly in the passenger seat during the incident. After the incident, Robinson was taken to a police station where she met with Detective Ryan and recited the above story. Robinson also told him that she had no doubt that she saw her "stepbrother" Jabree's grandmother Baker and his father Cummings in the car. See Investigation Interview Record, Nov. 27, 2000, Docket No. 11, Ex. C. The next day, November 28, 2000, Detective Ryan visited the scene of the alleged shooting. While there, he did not find any bullet casings to evidence the alleged shooting. See Ryan Dep. at 47, Docket No. 13, Ex. B. He interviewed Karo Sharpe, a school crossing guard on duty at the time of the shooting, who reported that she did not hear or see anything out of the ordinary. See Investigation Report of Det. Ryan, Docket No. 11, Ex. G. Detective Ryan filed two Affidavits of Probable Cause in support of arrest warrants for Plaintiffs Gregory Cummings and Shirley Cummings, a.k.a. Shirley Baker. In the Affidavits, Detective Ryan recounted Tiffany Robinson's story and stated that

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Case 1:04-cv-00858-SLR
Not Reported in F.Supp.2d 2004 WL 906259 (E.D.Pa.) (Cite as: 2004 WL 906259 (E.D.Pa.))

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there was a custody battle between Sessions and Cummings and that there was a Protection from Abuse Order on Cummings. Detective Ryan also stated that he had an approved arrest warrant for Cummings for an incident on November 13, 2000 when Cummings allegedly threatened Sessions. The details of the incident were not included in the affidavit. [FN2] Ryan also did not include the report of the crossing guard or the fact that he had visited the scene of the alleged shooting and did not find bullet casings. See Affidavits of Probable Cause for Arrest Warrants, Docket No. 11, Exs. H & I. FN2. Katherine Sessions alleges that on November 13, 2000, Cummings threw a brick into a window of her house with a threatening note on it. Detective Ryan investigated the brick throwing incident on November 15, 2000, when he also learned of the custody dispute and the Protection from Abuse Order. See Ryan Dep. at 21, Docket No. 13, Ex. B. *2 Detective Ryan submitted the Affidavits to the Office of the District Attorney for approval. Both Affidavits were approved and Detective Ryan then applied for the arrest warrants with a Philadelphia bail commissioner. The bail commissioner determined there was probable cause to arrest Plaintiffs and issued Arrest Warrants # 254785 and # 254786. On January 2, 2001, Cummings was arrested on Warrant # 254785. [FN3] Cummings explains that he was at a courthouse on January 2 for a custody hearing at which he expected to regain custody of his son Jabree. Before the hearing took place, however, Sessions identified Cummings to the police, telling them there was a warrant out for Cummings' arrest. See Cummings Dep. at 40, Docket No. 13, Ex. B-1. Cummings was arrested and subsequently incarcerated for 17 months, until May 17, 2002, when a jury found him not guilty of all charges against him arising out of the allegations of Sessions and her daughter Tiffany Robinson. FN3. Cummings was also arrested on Warrant # 254514, issued for the alleged November 13, 2000 brick throwing incident. The specifics of this warrant are discussed below in conjunction with Plaintiffs' Motion to Amend. Shirley Baker was arrested on May 15, 2001, on Warrant # 254786. [FN4] She was held for nine days

before her release. She, too, was found not guilty of the alleged November 27, 2000 shooting. FN4. Baker alleges her arrest took place on May 15, 2001. The Arrest Report, however, indicates she was arrested on May 31, 2001. See Arrest Report, Docket No. 11, Ex. M. The Amended Complaint states claims under 42 U.S.C. § 1983 against Detective Ryan, alleging Plaintiffs' Fourth Amendment rights were violated when Ryan made false statements and misleading omissions in the Affidavits of Probable Cause for warrants # 254785 and # 254786. Plaintiffs also bring § 1983 malicious prosecution claims against Detective Ryan. Lastly, Plaintiffs bring § 1983 claims against the City for failure to adequately train its investigating officers. [FN5] FN5. The Amended Complaint also states claims for abuse of process and intentional infliction of emotional distress against Katherine Sessions. Sessions has not moved for summary judgment and has not filed a motion in opposition to Plaintiffs' motion to amend. II. LEAVE TO AMEND In the first motion before the Court, Plaintiffs seek leave to amend the first Amended Complaint to allege a constitutional violation arising out of arrest warrant # 254514. This third warrant was issued for the alleged brick throwing incident of November 13, 2000. A. Legal Standard Federal Rule of Civil Procedure 15(a) allows a plaintiff to seek leave of court to amend a complaint even after the defendant has filed an answer: A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. Fed.R.Civ.P. 15(a). The United States Supreme Court has noted that leave should be freely granted because a plaintiff ought to be afforded an opportunity to test his claim on the merits. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Leave can be denied, however, where allowing the amendment would cause undue prejudice to the defendant or where the amendment is futile. See id.; Burlington Coat Factory Sec. Litig.,

© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:04-cv-00858-SLR
Not Reported in F.Supp.2d 2004 WL 906259 (E.D.Pa.) (Cite as: 2004 WL 906259 (E.D.Pa.))

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114 F.3d 1410, 1434 (3d Cir.1997); Hairston-Lash v. R.J.E. Telecom, Inc., No. 00-2070, 2000 U.S. Dist. LEXIS 15697 (E.D.Pa. Oct. 26, 2000). Prejudice and futility are the bases of Defendants' arguments in opposition to the instant motion. B. Discussion *3 This case involves the validity of the two arrest warrants used to arrest Plaintiffs on January 2, 2001 and May 15, 2001. Those warrants were based on the story of Tiffany Robinson. Plaintiffs seek leave to include allegations regarding the validity of another warrant pursuant to which Cummings was arrested on January 2, 2001. This third warrant, # 254514, is mentioned only once in the Amended Complaint and the Defendants did not have notice that Plaintiffs would challenge the validity of the warrant until the motion to amend was filed. The proposed amendment would allege that warrant # 254514 was based on the story of Katherine Sessions, who reported to police that "she discovered someone had thrown a rock through her window and that there was a threatening note. She told police investigating the incident that she recognized the handwriting on the note to be that of Cummings." See Pl.'s Proposed Second Amended Complaint, para. 11, Docket No. 16, Ex. A. The proposed amendments would also allege that Detective Ryan failed to conduct an investigation of Sessions' story and made an application for an arrest warrant against Cummings in which he recklessly made misleading statements and material omissions. Id. at para. 12, 17. Plaintiffs assert they are entitled to leave to amend because the proposed amendment merely adds facts to the pleading that came to Plaintiffs' counsel's attention during discovery. Defendants oppose the motion arguing that the amendment does not just add facts, but a new legal claim. Specifically, Defendants claim (1) that they will be unduly prejudiced if leave is granted at this late juncture and (2) that the amendment asserts a time-barred claim and is, thus, futile. The Court of Appeals for the Third Circuit has noted that prejudice to the non-moving party is the touchstone for the denial of an amendment. See Lorenz v. CSX Corp., 1 F.3d 1406, 1413 (3d Cir.1993); Hairston-Lash, 2000 U.S. Dist. LEXIS 15697, at *5. Prejudice is more than mere delay or passage of time; it involves showing that the nonmoving party "was unfairly disadvantaged or deprived of the opportunity to present facts or

evidence which it would have offered had the [moving party's] amendments been timely." Heyl & Patterson Int'l, Inc. v. F.D. Rich Housing of the Virgin Is., Inc., 663 F.2d 419, 426 (3d Cir.1981); see also United States v. Duffus, 174 F.3d 333, 337 (3d Cir.1999); Lorenz, 1 F.3d at 1413-14. Prejudice means "undue difficulty in prosecuting [or defending] a law suit as a result of a change in tactics or theories on the part of the other party." Deakyne v. Comm'rs of Lewes, 416 F.2d 290, 300 (3d Cir.1969). Courts in this Circuit have traditionally allowed amendments where the amendment clarified the plaintiff's legal theory or provided specific facts concerning the claims already asserted. See Johnston v. City of Phila., 158 F.R.D. 352, 354 (E.D.Pa.1994); see also Downey v. Coalition Against Rape & Abuse, 143 F.Supp.2d 423, 436-37 (D.N.J.2001) (allowing amendment because it did not present new causes of action and would require very little new briefing by non-moving party); Cuffy v. Getty Ref. & Mktg., 648 F.Supp. 802 (D.Del.1986). *4 Courts have found undue prejudice to the nonmoving party and denied leave to amend where the amendment would have asserted new claims, where new discovery would have been necessary, where the motion for leave was filed months after the factual basis of the amendment was discovered by the moving party, and where the motion for leave was brought after summary judgment motions were filed. See Berger v. Edgewater Steel Co., 911 F.2d 911, 924 (3d Cir.1990) (discussing all factors listed in upholding trial court's denial of leave); Johnston, 158 F.R.D. at 354 (denying leave to amend to add a gender discrimination claim to the previously claimed racial discrimination); Ellwood City v. Pa. Power Co., 570 F.Supp. 553, 556 (W.D.Pa.1983) (denying leave to amend because it would require new discovery and discovery period had already expired). In this case, Defendants Ryan and the City will be unduly prejudiced if leave to amend is granted. First, Plaintiffs filed the motion for leave to amend after the close of discovery, after summary judgment motions were filed, after pre-trial memoranda were filed, and after the case was put in the trial pool. Second, Plaintiffs discovered information about the third warrant no later than September 29, 2003, prior to the discovery deadline and over two months prior to filing the instant motion. Third, as noted above, since the inception of this litigation against Detective Ryan and the City, the case has concerned the conduct of Detective Ryan with regards to arrest warrants #

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Case 1:04-cv-00858-SLR
Not Reported in F.Supp.2d 2004 WL 906259 (E.D.Pa.) (Cite as: 2004 WL 906259 (E.D.Pa.))

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254785 and # 254786. Granting leave to amend at this juncture would introduce a new claim based on warrant # 254514. Fourth, additional discovery would be needed for the third warrant so that Detective Ryan and the City could adequately defend themselves. The fact that Defendants were aware of the third warrant, as Plaintiffs point out in their brief, is of no consequence. Although Defendants knew the warrant existed, they did not know that Plaintiffs were challenging its validity and, in fact, were expecting that Plaintiffs would not challenge its validity. See Ryan Dep. at 26, Docket No. 13, Ex. B. In sum, the totality of circumstances indicates that Detective Ryan and the City would suffer undue prejudice in defending this case if the Court were to grant Plaintiffs' motion. Accordingly, the motion for leave to amend Counts I, II, III, VI, VII, and VIII of the Amended Complaint against the instant Defendants is denied. [FN6] FN6. The Court need not reach the Defendants' futility argument. III. SUMMARY JUDGMENT The next motion before the Court is Defendants' motion for summary judgment. The City and Detective Ryan move for summary judgment on all counts against them. A. Legal Standard Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of showing the basis for its motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to go beyond the mere pleadings and present evidence through affidavits, depositions, or admissions on file showing a genuine issue of material fact for trial. See id. at 324. The substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then there is a genuine issue of fact. See id. *5 When deciding a motion for summary judgment,

all reasonable inferences are drawn in the light most favorable to the non-moving party. See Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993). Moreover, a court may not consider the credibility or weight of the evidence in deciding a motion for summary judgment, even if the quantity of the moving party's evidence far outweighs that of its opponent. See id. Nonetheless, a party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. See Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir.1992). B. Counts I & VI: Section 1983 Fourth Amendment Claims against Detective Ryan Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States. [FN7] To prevail under section 1983, a plaintiff must establish (1) that the defendants were "state actors," and (2) that they deprived the plaintiffs of a right protected by the Constitution. Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir.1995). Because Detective Ryan has raised a qualified immunity defense, Plaintiffs have a further burden. See Wilson v. Russo, 212 F.3d 781, 786 (3d Cir.2000). Plaintiffs must first show that Detective Ryan's alleged conduct violated a federal statute or constitutional right. If step one is met, Plaintiffs must show that the right violated was clearly established at the time of the defendant's conduct. Summary judgment is appropriate if no reasonable juror could conclude that Plaintiffs' clearly established right was violated. See id. (citing Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir.1995)). FN7. Section 1983 states: Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress. 42 U.S.C. § 1983 (2004); see also Conn v. Gabbert, 526 U.S. 286, 289, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999); Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir.2000).

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Case 1:04-cv-00858-SLR
Not Reported in F.Supp.2d 2004 WL 906259 (E.D.Pa.) (Cite as: 2004 WL 906259 (E.D.Pa.))

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In Counts I and VI Cummings and Baker claim, respectively, that they were arrested without probable cause in violation of their Fourth Amendment right to be free from unreasonable seizure. Plaintiffs acknowledge the warrants, but argue that the warrants were not supported by probable cause because they were obtained through Detective Ryan's false affidavits. The standard for challenging the validity of the underlying affidavit of an arrest warrant was established by the United States Supreme Court in Franks v. Delaware. 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir.1997). A plaintiff may succeed in a § 1983 action for false arrest made pursuant to a warrant if the plaintiff shows, by a preponderance of the evidence: (1) that the police officer "knowingly and deliberately, or with 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." Wilson, 212 F.3d at 786-87 (quoting Sherwood, 113 F.3d at 399). 1. Reckless Disregard for the Truth *6 In step one of the Franks analysis, the Court must determine whether a reasonable jury could conclude that Detective Ryan made statements or omissions that he either knew or should have known were false except for his reckless disregard for the truth. Wilson, 212 F.3d at 787 (citing United States v. Leon, 468 U .S. 897, 923 (1984)). The Third Circuit has noted that a reckless disregard for the truth means different things when dealing with omissions and assertions. See id. Omissions are made with reckless disregard "if an officer withholds a fact in his ken that '[a]ny reasonable person would have known that this was the kind of thing the judge would wish to know." ' Id. (quoting United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.1993)). "Unlike omissions, assertions can be made with reckless disregard for the truth even if they involve minor details--recklessness is measured not by the relevance of the information, but by the demonstration of willingness to affirmatively distort the truth." Id. at 788. "An assertion is made with reckless disregard when 'viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported." ' Id. (quoting United States v. Clapp, 46 F.3d 795, 801 n. 6 (8th Cir.1995)).

Cummings and Baker claim that Detective Ryan made omissions and false assertions in the affidavits of probable cause for arrest warrants # 254785 and # 254786. [FN8] The affidavits are identical in substance. They explain Tiffany Robinson's story about the shooting, the existence of a protection from abuse order on Cummings, and the custody dispute between Cummings and Sessions over Sessions' stepson Jabree. Detective Ryan states that Robinson positively identified Cummings from a police photograph and that there was an approved affidavit from Cummings' arrest for the incident on November 13, 2000. FN8. Cummings also raises an issue concerning the Criminal Complaint filed against him by the Commonwealth of Pennsylvania. Docket No. 13, Ex. C-2. The District Attorney's Office prepares and issues the Criminal Complaint, not Detective Ryan. Thus, Detective Ryan's potential liability lies only in the Affidavit of Probable Cause, the document he prepared. Plaintiffs claim that Detective Ryan misstated the following assertions with reckless disregard for the truth: (1) Tiffany Robinson is not the stepsister of Cummings' son Jabree, and (2) Jabree is not Katherine Sessions' stepson because Sessions and Cummings were never married. As set forth above, the appropriate inquiry is whether Detective Ryan made the assertions with a high degree of awareness of their probable falsity. See Wilson, 212 F.3d at 788. Detective Ryan did have some background knowledge of the familial relationships of Cummings, Sessions, Robinson, and Jabree. He did not know, however, the precise relationships among the parties involved. The Court finds that Detective Ryan did not have a high degree of awareness of these facts sufficient to conclude that he acted with reckless disregard for the truth with respect to his assertions of the family relationships in the affidavit. [FN9] FN9. Moreover, even if Plaintiffs could prove reckless disregard, the allegedly false assertions are not material under Franks because probable cause to arrest still exists when the challenged assertions are removed from the affidavit. Plaintiffs next claim that Detective Ryan omitted from the affidavit the following information: (1) Karo Sharpe, the school crossing guard on duty at the time of the shooting, reported to Detective Ryan that she

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Case 1:04-cv-00858-SLR
Not Reported in F.Supp.2d 2004 WL 906259 (E.D.Pa.) (Cite as: 2004 WL 906259 (E.D.Pa.))

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did not hear or see anything out of the ordinary on the morning of the alleged shooting; (2) Detective Ryan searched the alleged crime scene and did not find bullet casings or any other evidence to corroborate Tiffany Robinson's story; and (3) Detective Ryan never questioned Plaintiffs regarding their whereabouts at the time of the alleged shooting. *7 To prove reckless disregard with respect to the omissions, Plaintiffs must show that any reasonable person would have known that the omissions were highly relevant and that a judge would want to know about them to make the probable cause determination. See Wilson, 212 F.3d at 788 (citing Jacobs, 986 F.2d at 1234). In Wilson, the Third Circuit instructed that, while we cannot demand that police officers relate the entire history of events leading up to a warrant application, a police officer cannot make unilateral decisions about the materiality of information and merely inform the magistrate of inculpatory evidence. Id. at 787. For example, in Jacobs the court found reckless disregard where the officer omitted from his affidavit the fact that a drug sniffing dog failed to alert on the defendant's bag that was searched pursuant to the search warrant the officer obtained. See Jacobs, 986 F.2d at 1234. Here, the Court finds that any reasonable person would recognize that a judge would want to know about the lack of corroborating evidence at a crime scene, including a bystander who did not see or hear anything out of the ordinary and the absence of bullet casings at an alleged shooting scene. On the other hand, Detective Ryan had no responsibility to report the fact that he never questioned Cummings or Baker about their whereabouts. Thus, Detective Ryan acted with reckless disregard of the truth by omitting exculpatory facts about the crossing-guard and the bullet casings from the affidavit of probable cause. 2. Materiality Under the next step in the Franks analysis, the Court must determine whether Detective Ryan's omissions made with reckless disregard of the truth were "material, or necessary, to the finding of probable cause." Sherwood, 113 F.3d at 399. To determine materiality, we insert the facts recklessly omitted and ask whether the "corrected" warrant establishes probable cause. See Wilson, 212 F.3d at 789 (citing Sherwood ). If probable cause still exists, the inquiry stops there and summary judgment may be granted in favor of the police officer.

To assess whether or not probable cause exists, a court must weigh the inculpatory evidence against any exculpatory evidence to determine whether a reasonable person would believe that an offense has been or is being committed by the person to be arrested. See Wilson, 212 F.3d at 791; Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir.1995). Here, the strongest inculpatory evidence is the positive identification of Plaintiffs by the victim Tiffany Robinson. There is also evidence of the custody dispute and the protection from abuse order issued against Cummings. The exculpatory facts recklessly omitted by Detective Ryan concern the lack of evidence from the crime scene, including the crossing guard's statement and the lack of bullet shells. The Third Circuit has rejected the argument that positive identification by a victim is absolute proof of probable cause. See Wilson, 212 F.3d at 790. "Independent exculpatory evidence or substantial evidence of the witness's own unreliability that is known by the officer could outweigh the identification such that probable cause would not exist." Id. Nonetheless, weighing the exculpatory evidence against the positive identification of Plaintiffs by Robinson, the exculpatory facts are not sufficient to undermine a finding of probable cause. See, e.g., id. (holding positive identification by victim outweighs exculpatory evidence on specific facts of case); Roberts v. Toal, No. 94-0608, 1997 WL 83748 (E.D.Pa. Feb. 20.1997) (same); Thomas v. Piree, No. 95-956, 1995 WL 709938 (E.D.Pa. Dec.1, 1995) (same). The Court concludes, therefore, that no reasonable jury could find that Detective Ryan's affidavit, after inserting the omissions, lacked probable cause to arrest Cummings and Baker for allegedly firing shots at Robinson. Summary judgment on Counts I and VI is granted in favor of Detective Ryan. [FN10] FN10. Because the Court holds that Detective Ryan did not knowingly or recklessly omit facts that could negate probable cause, the Court also holds that Detective Ryan did not violate Plaintiffs' Fourth Amendment rights and that Detective Ryan is entitled to qualified immunity. See Sherwood, 113 F.3d at 402; Thomas, 1995 WL 709938 at *6 n. 12. C. Counts III & VIII: Section 1983 Malicious Prosecution Claims against Detective Ryan *8 To prove a claim for malicious prosecution under

© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:04-cv-00858-SLR
Not Reported in F.Supp.2d 2004 WL 906259 (E.D.Pa.) (Cite as: 2004 WL 906259 (E.D.Pa.))

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§ 1983, Plaintiffs must establish a deprivation of liberty consistent with the Fourth Amendment concept of seizure and the common law elements of the tort. See Gallo v. City of Phila., 161 F.3d 217, 222 (3d Cir.1998) (interpreting Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Backof v. New Jersey State Police, No. 024131, 2004 WL 260779 (3d Cir. Feb.13, 2004) (unpublished); Colbert v. Angstadt, 169 F.Supp.2d 352, 355 (E.D.Pa.2001). Under the common law of Pennsylvania, Plaintiffs must show: (1) Detective Ryan initiated a criminal proceeding; (2) the proceeding ended in Plaintiffs' favor; (3) Detective Ryan initiated the proceeding without probable cause to arrest; and (4) Detective Ryan acted with actual malicious purpose. See Patterson v. Sch. Dist. of Phila. ., No. 99-4792, 2000 WL 1020332, *5 (E.D.Pa. July 19, 2000). Plaintiffs meet the constitutional element of their malicious prosecution claims. Cummings was arrested and incarcerated for 17 months before trial and Baker was arrested and allegedly incarcerated for nine days, constituting a seizure under the Fourth Amendment. However, Plaintiffs fail at least the third prong of the common law inquiry. As discussed above, Plaintiffs were arrested with probable cause, even after correcting for Detective Ryan's reckless omissions. Thus, Plaintiffs cannot prove their § 1983 malicious prosecution claim. Summary judgment is granted in favor of Detective Ryan on Counts III and VIII. D. Counts II & VII: Section 1983 Claims against the City In Counts II and VII, Plaintiffs assert a § 1983 claim against the City of Philadelphia claiming that it fails to adequately train its investigating police officers. In Monell v. Department of Social Services, 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court of the United States ruled that a municipality is a "person" under federal civil rights statutes and that it can be found liable under § 1983. To establish a claim, a plaintiff must predicate recovery on the existence of a particular municipal policy or established custom. See id.; City of Okla. City v. Tuttle, 471 U.S. 808, 829, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion) (Brennan, J., concurring). Further, a plaintiff must prove that this policy or custom caused the deprivation of a constitutional right. See Tuttle, 471 U.S. at 829-30; City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

Here, Plaintiffs have offered no evidence to substantiate their Monell claim beyond the facts of this case. Summary judgment is granted in favor of the City on Counts II and VII. An appropriate Order follows. ORDER AND NOW, this 26th day of April, 2004, upon consideration of Defendants City of Philadelphia and Detective Theodore Ryan's Motion for Summary Judgment (Docket Nos. 10 & 11), Plaintiffs' Response thereto (Docket Nos. 12 & 13), Defendants' Reply to Plaintiffs' Response (Docket No. 17), Plaintiffs' Motion for Leave to File a Second Amended Complaint (Docket No. 16), Defendants' Response thereto (Docket No. 18), and Plaintiffs' Reply to Defendants' Response, and for the reasons set forth in the accompanying Memorandum, IT IS HEREBY ORDERED that: *9 (1) Plaintiffs' Motion for Leave to Amend is DENIED; and (2) Defendants City of Philadelphia and Detective Ryan's Motion for Summary Judgment is GRANTED. 2004 WL 906259 (E.D.Pa.)

Motions, Pleadings and Filings (Back to top) · 2003 WL 23905177 (Trial Motion, Memorandum and Affidavit) Reply Memorandum of Law in Further Support of Motion for Summary Judgment of Defendants the City of Philadelphia and Detective Theodore Ryan (Dec. 05, 2003) · 2003 WL 23905194 (Trial Motion, Memorandum and Affidavit) Memorandum of Law of the City of Philadelphia and Detective Ted Ryan in Opposition to Plaintiff's Motion to Amend Complaint (Dec. 05, 2003) · 2003 WL 23905151 (Trial Motion, Memorandum and Affidavit) Defendants' Pre-Trial Memorandum (Nov. 25, 2003) · 2003 WL 23905163 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Pre-Trial Memorandum (Nov. 20, 2003) · 2003 WL 23905136 (Trial Motion, Memorandum and Affidavit) Memorandum of Law in Opposition to

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Defendants' Motion for Summary Judgement (Nov. 17, 2003) · 2003 WL 23905119 (Trial Motion, Memorandum and Affidavit) Motion for Summary Judgment of Defendants the City of Philadelphia and Detective Theodore Ryan (Oct. 30, 2003) · 2003 WL 23905100 (Trial Pleading) Answer and Affirmative Defenses of Defendants the City of Philadelphia and Detective Ted Ryan to Plaintiffs' Amended Complaint (May. 29, 2003) · 2:03cv00034 (Jan. 02, 2003) (Docket)

· 2003 WL 23905083 (Trial Pleading) 42 U.S.C. § 1983 Floor Fourth Amendment Hed False Arrest Malicious Prosecution Abuse of Process (2003) END OF DOCUMENT

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EXHIBIT 3

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106 Fed.Appx. 768 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.)) (Cite as: 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.)))

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Briefs and Other Related Documents This case was not selected for publication in the Federal Reporter. NOT PRECEDENTIAL

acted in violation of its own ordinances and a court order, were not entitled to preclusive effect; and (4) township was not entitled to attorneys' fees. Affirmed. Rosenn, Circuit Judge, filed dissenting opinion. West Headnotes

Please use FIND to look at the applicable circuit court rule before citing this opinion. Third Circuit Local Appellate Rule 28.3(a) and Internal Operating Procedure 5.3. (FIND CTA3 Rule 28.0 and CTA3 IOP APP I 5.3.)

United States Court of Appeals, Third Circuit. Cora F. LINDQUIST, Individually and as Executrix of the Estate of James O. Lindquist, v. BUCKINGHAM TOWNSHIP; Board of Supervisors of Buckingham Township; Ernest Knight II; Lynn Bush, Executrix of the Estate of George M. Bush, Esq. Cora F. Lindquist, Appellant, Buckingham Township; Board of Supervisors of Buckingham Township, Appellants. Nos. 03-2431, 03-2971. Case No. 03-2431 Argued Case No. 03-2971 Submitted Under Third Circuit LAR 34.1(a) Feb. 23, 2004. Decided July 19, 2004. Background: Landowners brought § 1983 action alleging that township's denial of their development plans violated their due process rights. The United States District Court for the Eastern District of Pennsylvania, Harvey Bartle, III, J., 2003 WL 22757894, in a bench trial, found for township. Parties appealed. Holdings: The Court of Appeals, Rendell, Circuit Judge, held that: (1) township's actions were not so egregious as to shock the conscience; (2) motion for leave to amend complaint was properly denied on basis of undue delay; (3) Pennsylvania court's findings that township

[1] Constitutional Law 278.2(1) 92k278.2(1) Most Cited Cases "Shocks the conscience" standard was proper standard to be applied in § 1983 action alleging that township violated landowners' due process rights by disapproving their proposed development of the property. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983. 278.2(1) [2] Constitutional Law 92k278.2(1) Most Cited Cases [2] Zoning and Planning 381.5 414k381.5 Most Cited Cases Even if township violated state court orders and its own ordinances, and acted in bad faith, when disapproving landowners' plans for developing their property, township's actions were not so egregious as to shock the conscience, as required to establish a substantive due process violation based solely on violations of state law. U.S.C.A. Const.Amend. 14. 840 [3] Federal Civil Procedure 170Ak840 Most Cited Cases Township's alleged failure to turn over certain documents, to landowners who brought § 1983 action alleging that their due process rights were violated by township's disapproval of their proposed development plans, was not sufficient reason for landowners' delay in moving for leave to amend their complaint, and therefore motion was properly denied on basis of "undue delay"; documents sought were public documents to which landowners had access, landowners never moved to compel production, and case had been pending for two years and was ready for trial. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983. 727 [4] Zoning and Planning 414k727 Most Cited Cases Pennsylvania court's findings that township, in

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106 Fed.Appx. 768 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.)) (Cite as: 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.))) disapproving landowners' development plans, acted in violation of its own ordinances and a court order, were not essential to its final judgment that landowners' plan was deemed approved under Pennsylvania law, and therefore were not entitled to preclusive effect in landowners' § 1983 action alleging that the disapproval of their plans violated their due process rights. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983; 53 P.S. § 10508. [5] Civil Rights 1411 78k1411 Most Cited Cases District court did not abuse its discretion, in § 1983 action alleging that township violated landowners' due process rights by disapproving their proposed development plans, in refusing to permit landowners to introduce evidence of the township's treatment of a third party's subdivision application; evidence was not relevant to question of township's treatment of landowners' applications, and ascertaining the facts with regard to the third party application would have required conduct of a trial within the trial. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983. [6] Civil Rights 1484 78k1484 Most Cited Cases In light of fact that landowners might have been able to prevail, in their § 1983 action alleging that their due process rights were violated by township's disapproval of their proposed development plans, under the improper motive standard in effect at the time of the trial, landowners' action was not frivolous, unreasonable or without foundation, and therefore township was not entitled to attorneys' fees even though it was the prevailing party. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § § 1983, 1988. *769 Appeals from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 00-cv-01301). District Judge: Honorable Harvey Bartle, III. Barbara Anisko [Argued], Daniel R. Utain, Kaplin, Stewart, Meloff, Reiter & Stein, Blue Bell, PA, for Cora L. Lindquist; Appellant in 03-2431 and Appellee in 03-2971. *770 Harry G. Mahoney [Argued], Michael L. Barbiero, Deasey, Mahoney & Bender, Philadelphia, PA, for Buckingham Township and Board of Supervisors of Buckingham Township, Appellees in 03-2431 and Appellants in 03- 2971. Before: RENDELL, BARRY and ROSENN, Circuit Judges.

OPINION OF THE COURT RENDELL, Circuit Judge. **1 Cora F. Lindquist, individually and as executrix of the estate of James O. Lindquist, appeals the District Court's order granting judgment in favor of Buckingham Township and the Board of Supervisors of Buckingham Township on the Lindquists' civil rights action under 42 U.S.C. § 1983. This case presented, at both the district court level and on appeal before us, a heavily fact-laden saga of the attempted development of land by plaintiffs, seemingly thwarted at every turn by defendants. The plaintiffs' forty-five page complaint leveled allegations of bad faith and conspiracy against defendants based on their conduct. The District Court held a six-day non-jury trial, hearing first hand both sides of the story. Before the District Court's twenty-one page opinion issued, we made clear in United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392 (3d Cir.2003), that the standard applicable to substantive due process claims involving executive action in land-use disputes is the "shocks the conscience" standard. The District Court held that "there [was] nothing in the facts ... to prove that the defendants' conduct was so egregious as to be 'conscience shocking.' " We can find nothing in the record that would cause us to find error in the District Court's reasoning or ruling. Our dissenting colleague paints a picture of dastardly deeds, and, while we might credit such a portrayal if the trial court had perceived in the extensive recounting of the saga the reprehensible animus, attitude and scheming upon which the dissent relies, that is not the case. Moreover, the objective facts, as revealed in the hefty 5,559-page appendix before us, do not necessarily take us in the direction the dissent suggests, causing us to find no error. Clearly, we and the trial judge just view the record differently from our dissenting colleague. We see no clear-cut constitutional violation and will therefore affirm. I. The Lindquist farm, located between York Road and Upper Mountain Road in Buckingham, Pennsylvania, consists of a 100-acre parcel owned by James O. Lindquist and Cora F. Lindquist, and a 150-acre parcel owned by James O. Lindquist and his three children. [FN1] Beginning in early 1994, the Lindquists sought to develop the property as a cluster subdivision. Throughout 1994 and 1995, they and their representatives worked with the Township, its Board of Supervisors, its Planning Commission and

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106 Fed.Appx. 768 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.)) (Cite as: 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.))) its consultant to facilitate the proposed development of the property. FN1. James O. Lindquist died while this case was before the District Court. Cora F. Lindquist was substituted as executrix of his estate. Based on these discussions, the Lindquists prepared a set of preliminary plans. Development was to occur in two stages: Phase I, consisting of 111 single-family lots on the front parcel, and Phase II, consisting of 110 single-family lots on the back parcel. On March 29, 1996, the Lindquists submitted an application for preliminary subdivision approval of Phase I ("Original Phase I Plan"). *771 The Township's consultants evaluated the Original Phase I Plan for compliance with the Township's Subdivision and Land Development Ordinance ("SALDO") and the Zoning Ordinance. [FN2] It was understood that waivers from certain SALDO requirements would be necessary before the plan would be approved, and there appeared to be no objection to these waivers at a May 1, 1996 meeting of the Planning Commission. However, later that month, one consultant issued a review letter concerning the plan's proposed storm water management facilities that imposed upon plaintiffs what they believed to be "onerous" and unwarranted requirements with respect to water run-off. FN2. Under SALDO, a party seeking subdivision and land development approval must first file an application and plans for preliminary approval by the Board. In addition, the party must also submit an application for final plan approval. The Board is the only Township entity with the authority to grant approvals and denials of these plans. **2 The Lindquists made a formal request for SALDO waivers to the Board on August 9, 1996. The Board took no action on the waiver request, but recommended that the Lindquists meet further with the Township staff to settle the waiver and other issues. The Lindquists met several times with the Township staff, but the parties were unable to reach a compromise that would be accepted by the Board. Finally, the Lindquists went back to the Board for clarification, submitting two proposed plans, including the Original Phase I Plan and a "by-right" alternate plan that met all SALDO requirements. [FN3] In response, the Board: (1) directed the

Lindquists to proceed with the Original Phase I Plan; (2) consented to grant the SALDO waivers necessary to develop the property under the Phase I Plan; (3) determined that the Plan would be processed under the August 24, 1994 Zoning ordinance, as amended December 13, 1995; and (4) required the Lindquists to work with the Township to develop a wastewater system that would integrate the development with the regional sewage system. FN3. The zoning ordinance permitted the cluster subdivision of a property as a "byright" use. Thus, the Board would have been required to accept this alternate plan if formally submitted. However, the alternate plan would have subdivided and developed a portion of the property that the Township wanted to preserve. In late 1996 and early 1997, the Lindquists and the Township's consultants worked on the wastewater issue. Meanwhile, the Board enacted an amendment to SALDO that prohibited cul-de-sac streets within subdivisions and an amendment to the Zoning Ordinance which eliminated cluster subdivisions as a "by-right" use. In early June, the Township informed the Lindquists that the Original Phase I Plan would be on the Board's agenda at its June 25, 1997 meeting. The Lindquists informed the Township that they intended to submit a revised Phase I plan within the next few weeks, and proposed that the ninety-day statutory review period for the Original Phase I Plan be extended, as had been done several times throughout the process. The Board did not accept this proposal, and rejected the application for preliminary approval of the plan ("the First Denial Resolution"). As the result of this denial, any new proposals submitted by the Lindquists would be subject to the zoning amendments enacted in early 1997. On September 3, 1997, the Lindquists commenced legal proceedings against the Board in the Court of Common Pleas of Bucks County. These actions were resolved by a stipulation of settlement signed by the parties on November 12, 1997, and entered as a Court Order on December 12, 1997 ("the December 1997 Order"). Under *772 the terms of the settlement, the Board withdrew the First Denial Resolution and permitted the submission of revised Phase I plans to be reviewed under the Zoning Ordinance and SALDO as they existed on December 13, 1995. The settlement did not address the issue of how many times the Lindquists would be permitted to submit

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106 Fed.Appx. 768 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.)) (Cite as: 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.))) further revised plans. On November 18, 1997, the Lindquists submitted a revised Phase I subdivision application ("Revised Phase I Plan"). In early 1998, the Lindquists and the Township met several times to discuss the Revised Phase I Plan. The Lindquists agreed to submit a further revised plan ("Further Revised Phase I Plan"), and the Board agreed to extend the review period for the Further Revised Phase I Plan to July 30, 1998. **3 On July 20, the Lindquists informed the Township that the Further Revised Plan I would be submitted by the end of July, and proposed that the review period be extended until the end of August. The Township declined to extend the review period. On July 22, the Board passed a resolution ("Second Denial Resolution"), which was apparently intended to reject the Revised Phase I Plan. However, the resolution actually rejected the Original Phase I Plan. The Board subsequently realized it had rejected the wrong plan, and on August 12, 1998, passed a new resolution that "readopted and confirmed" the Second Denial Resolution and amended it to include a rejection of the Revised Plan ("Third Denial Resolution"). Meanwhile, the Lindquists had filed the Further Revised Phase I Plan on July 31, 1998. The Township accepted the Further Revised Plan, but informed the Lindquists that it would not treat the Further Revised Plan as a revised plan under the December 1997 Order for the reason that the Second Denial Resolution had denied the subdivision application. The Third Denial Resolution set an August 31, 1998 deadline for review of the Further Revised Plan. The Lindquists informed the Township that it was obligated to treat the Further Revised Plan as a revised plan under the settlement, and that, if it treated the Further Revised Plan as a new plan, they were entitled to a ninety-day review period as provided by statute. The Board disagreed. On August 26, 1998, the Board adopted another resolution ("Fourth Denial Resolution"), which rejected the Further Revised Plan as a revised plan. The Township also informed the Lindquists that it would accept the Further Revised Plan as a new plan, subject to review under the Zoning Ordinance and SALDO as they existed on the date of its submission. The Board eventually rejected the Further Revised Plan as a new plan on October 28, 1998.

On September 3, 1998, the Lindquists filed a mandamus action in the Court of Common Pleas of Bucks County, alleging that the Revised Plan should be "deemed approved" under § 508 of the Municipalities Planning Code, Pa. Stat. Ann. tit 53, § 10508. On January 19, 2000, the Bucks County Court held that the Second Denial Resolution of July 22, 1998 had rejected the wrong plan, that the Board had failed to comply with § 508 through its failure to take action on the Revised Plan by the July 30, 1998 deadline, and that, as a result, the Revised Plan was "deemed approved." In his opinion, Judge Clark found that "the Township ha[d] acted in this case not only in violation of Order of December 12, 1997 of the Bucks County Court, but also in violation of its own ordinances requiring review of subdivision applications." However, the basis for the court's ruling that the Revised Plan was "deemed approved" was the Township's *773 failure to reject the Revised Plan by the statutory deadline. The Township appealed the Bucks County Court Order. However, in December 2000, the parties reached a settlement that ended the state court litigation, but permitted the Lindquists to proceed with this action alleging violations of their substantive due process rights, which they had filed in federal court in March of that year. The District Court, following a six-day non-jury trial, ultimately granted judgment in favor of the Township and its Board of Supervisors. II. **4 The Lindquists' appeal challenges several aspects of the District Court's ruling, including: (1) the application of the "shocks the conscience" standard to their substantive due process claim; (2) the determination that the Township's actions did not violate the "shocks the conscience" standard; (3) the denial of their motion to amend their complaint to include an equal protection claim; (4) the failure to give preclusive effect to certain state court findings; and (5) the decision to exclude evidence regarding the Township's treatment of other subdivision plans. The Township and the Board of Supervisors appeal the District Court's denial of their post-trial motion for attorneys' fees and costs. A. [1] First, the Lindquists contend that the District Court erred in applying the "shocks the conscience" standard because such a standard is inappropriate to apply to substantive due process claims against municipalities arising from land use decisions. We exercise plenary review over the District Court's

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106 Fed.Appx. 768 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.)) (Cite as: 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.))) choice and interpretation of legal standards. Beta Spawn, Inc. v. FFE Transportation Services, Inc., 250 F.3d 218, 223 (3d Cir.2001). In United Artists, we noted that "our cases have repeatedly acknowledged that executive action violates substantive due process only when it shocks the conscience." Id. at 399-400. We saw no reason why land-use cases should be exempted from the shocks-the-conscience test, stating that "[l]and-use decisions are matters of local concern, and such disputes should not be transformed into substantive due process claims based only on allegations that government officials acted with 'improper' motives." Id. at 401-02. Accordingly, we conclude that the District Court applied the proper standard to the Lindquists' claim. B. [2] Second, the Lindquists argue that "the Township deliberately acted in bad faith, violated its own ordinances and customary practices and procedures and violated two separate court orders," and that "[t]he Township participated in such egregious conduct because of their personal animus to [the Lindquists' representative] and with the intent of preventing the Lindquists from developing their property so that the Township would be in a better position to acquire the Lindquist property at a minimal cost to the Township." The District Court concluded that the Township "may have been negligent at times and in 1998 may have acted with improper motive toward the Lindquists and their representatives. However, there is nothing in the facts we have found to prove that the defendants' conduct was so egregious as to be 'conscience shocking.' " The Lindquists maintain that this conclusion is in error and that the Township's actions do satisfy the standard. We exercise plenary review over the District Court's application of legal standards to the facts of the case. *774Beta Spawn, 250 F.3d at 223. We review the District Court's findings of fact for clear error. Id. **5 In United Artists, we joined other Courts of Appeals in applying the "shocks the conscience" standard to substantive due process claims in land use disputes. For example, in Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d 1102 (8th Cir.1992), a developer brought a § 1983 action claiming that the city had violated its substantive due process rights by enforcing an invalid zoning plan against it. In affirming the District Court's denial of the developer's claim, the Eighth Circuit stated that "a

state-law error, no matter how fundamental, cannot in and of itself create a federal due-process violation." Id. at 1105. Furthermore, it noted that "[its] decision would be the same even if the City had knowingly enforced the invalid zoning ordinance in bad faith" because "[a] bad faith violation of state law remains only a violation of state law." Id. In its view, the enforcement of an invalid zoning ordinance was not a "truly irrational" governmental action giving rise to a substantive due process claim. Id. The First Circuit considered a similar situation in PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28 (1st Cir.1991). There, a developer brought a civil rights action against a Puerto Rico agency following the agency's rejection of the developer's application for a construction permit. The court held that "[the developer's] allegations that [agency] officials failed to comply with agency regulations or practices in the review and approval process for the construction drawings are not sufficient to support a substantive due process claim." Id. at 32. The court also stated that "even assuming that [the agency] engaged in delaying tactics and refused to issue permits for the ... project based on considerations outside the scope of its jurisdiction under Puerto Rico law, such practices, without more, do not rise to the level of violations of the federal constitution." Id. These cases stand for the proposition that, without more, a violation of state law, even a bad faith violation of state law, will not support a substantive due process claim in a land-use dispute. See also Baker v. Coxe, 230 F.3d 470, 474 (1st Cir.2000) ("[E]ven an arbitrary denial of [a building] permit in violation of state law--even in bad faith--does not rise above the constitutional threshold for equal protection and substantive due process claims."); Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir.1999) ( "Arbitrary conduct that might violate zoning regulations as a matter of state law is not sufficient to demonstrate conduct so outrageously arbitrary as to constitute a gross abuse of governmental authority that will offend the substantive component of the Due Process Clause.") Rather, the governmental action must be so egregious and extraordinary that it "shocks the conscience." Here, we are not entirely convinced that there has even been a violation of state law, much less any "conscience-shocking" behavior. The Lindquists maintain that the Township's actions were in defiance of the December 1997 Order. We view this to be not entirely clear-cut. And, even if the Township did violate the Order, the record is largely devoid of any

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106 Fed.Appx. 768 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.)) (Cite as: 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.))) facts that would suggest that the Township's actions were so egregious and extraordinary that they "shock the conscience." The Lindquists have suggested that the Township was motivated by financial concerns and bias against their attorney, and that these motivations render the Township's actions "conscience-shocking." Yet, we find little evidence that the Township or its officers were motivated by pecuniary gain. In addition, although it is clear that the relationship between the Township and the Lindquists' *775 attorney became bitter during the course of these events, the Township's actions cannot be said to have been due to any bias against him. The District Court concluded that while the Township "may have been negligent" and "may have acted with an improper motive," desirous of thwarting development of the property, its conduct did not shock the conscience. We concur. **6 Our dissenting colleague cites Leamer v. Fauver, 288 F.3d 532 (3d Cir.2002), for the proposition that "deliberate indifference" and "protracted failure to even care" may be conscience shocking when officials have time to make unhurried judgments. Id. at 547. However, Leamer involved a prison inmate challenging the deprivation of a liberty interest. Given that "[t]he assessment of what constitutes conscience-shocking behavior differs according to the factual setting," id., the test may be more easily satisfied in a prison setting than in a land-use setting. More importantly, our view of the record does not indicate indifference or a failure to care on the part of the Township. C. [3] Third, the Lindquists challenge the District Court's denial of their motion for leave to amend their complaint to include an equal protection claim, based on the Township's favorable treatment of a third party's subdivision application. We review a grant or denial of leave to amend for abuse of discretion. Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.2000). The Supreme Court has stated that the Rule 15(a) mandate that leave to amend "shall be freely given when justice so requires" is to be heeded. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.--the leave sought should, as the rules require, be "freely given." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

Here, the District Court denied the Lindquists' motion to amend for "undue delay." With regards to the issue of delay, our Court has stated that the passage of time, without more, does not require that a motion to amend a complaint be denied; however, at some point, the delay will become "undue," placing an unwarranted burden on the court, or will become "prejudicial," placing an unfair burden on the opposing party. The question of undue delay, as well as the question of bad faith, requires that we focus on the plaintiff's motives for not amending their complaint to assert this claim earlier; the issue of prejudice requires that we focus on the effect on the defendants. Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir.1984), cert. denied, 469 U.S. 1122, 105 S.Ct. 806, 83 L.Ed.2d 799 (internal citations omitted). See also Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir.2001) (stating that "the question of undue delay requires that we focus on the movant's reasons for not amending sooner"). Here, in its discussion, the District Court followed our directive in Adams that the Court should focus on the plaintiff's motives. First, it noted the Lindquists' proffered reason for their two-year delay, namely, the Township's alleged failure to turn over certain documents. Then, it disposed of this reason because the documents were public documents to which the Lindquists had access and, in addition, the Lindquists could have filed a motion to *776 compel production. In light of this reasoning, and given the fact that this case had already been pending for two years and was ready for trial, we cannot say that the District Court abused its discretion in denying the Lindquists leave to amend. D. **7 [4] Fourth, the Lindquists urge that the District Court erred when it failed to give preclusive effect to certain findings outlined in the state court's January 19, 2000 order. We exercise plenary review over the District's Court decision regarding the preclusive effect of a state court judgment. Del. River Port Auth. v. Fraternal Order of Police, 290 F.3d 567, 572 (3d Cir.2002). The Full Faith and Credit Act, 28 U.S.C. § 1738, requires a federal court to give a state court judgment the same preclusive effect that it would be entitled to in a court of that state. Gregory v. Chehi, 843 F.2d 111, 118 (3d Cir.1988). Thus, the District Court was required to give the state court's findings preclusive effect if a Pennsylvania court would have been required to give them preclusive effect.

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106 Fed.Appx. 768 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.)) (Cite as: 106 Fed.Appx. 768, 2004 WL 1598735 (3rd Cir.(Pa.)))

Turning to Pennsylvania law, we note that Pennsylvania has adopted the requirements of the Restatement (Second) of Judgments, regarding when a prior determination of a legal issue is conclusive in a subsequent action. Clark v. Troutman, 509 Pa. 336, 502 A.2d 137, 139 (Pa.1985). In Pennsylvania, the doctrine of issue preclusion applies if: (1) the issue decided in the prior case is identical to the one presented in the subsequent action; (2) there was a final judgment on the merits; (3) the party against whom the doctrine is asserted was a party or in privity with a party in the subsequent case; (4) the party or person in privity with a party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and (5) the determination in the prior proceeding was essential to the judgment. City of Pittsburgh v. Zoning Bd. of Adjustment, 522 Pa. 44, 559 A.2d 896, 901 (Pa.1989). Here, the January 19, 2000 state court order concluded that the Lindquists' Revised Plan was "deemed approved" under § 508 of the Municipalities Planning Code, Pa. Stat. Ann. tit. 53 § 10508. In concluding that the Plan was "deemed approved," the Court of Common Pleas relied solely upon facts related to the Township's Board of Supervisors' failure to take action upon the Plan prior to the statutory deadline. While the court did make other findings and agreed with the Lindquists that the Township had acted