2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-25-2011

Andrew Kundratic v. Gary Thomas

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3285

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3285

___________

ANDREW KUNDRATIC,

Appellant

v.

GARY THOMAS; SOPHIA KUNDRATIC, a/k/a Carol Kundratic

_______________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

D.C. Civil Action No. 08-cv-1652

(Honorable William J. Nealon)

______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 10, 2011

Before: SCIRICA, BARRY and GARTH, Circuit Judges.

(Filed January 25, 2011 )

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

After a tawdry series of events, plaintiff Andrew Kundratic filed a civil rights 

complaint under 42 U.S.C. § 1983 against defendants Sophia Kundratic (his wife) and 

Gary Thomas (her paramour, a Pennsylvania State Trooper and neighbor). Plaintiff 
2

alleged violations of his rights under the First and Fourth Amendments as incorporated 

by the Fourteenth Amendment. The District Court granted defendants‘ motion to dismiss 

pursuant to Federal Rule of Civil Procedure 12(b)(6). We will affirm.

I.

The factual allegations in plaintiff‘s Complaint are these:1 with the active and 

willing participation of Thomas‘ wife, defendants became involved in a sexual 

relationship. Sophia Kundratic encouraged plaintiff to engage in his own extramarital 

affair with Thomas‘ wife, but plaintiff declined to partake in the escapades. Plaintiff 

claims Sophia‘s behavior caused her to neglect their daughter and gradually led to the 

erosion of their marriage.

At times, plaintiff would return home to find Thomas‘ van idling in his driveway 

with defendants inside. On one such occasion, in February 2007, plaintiff ordered 

Thomas to leave his property. Unmoved, Thomas resisted ―in a threatening manner.‖ 

After plaintiff called 911, Thomas allegedly told Sophia she should redirect the officers 

to his house for him to ―take care of it.‖ Thomas then threatened future retaliation against 

plaintiff. 

On April 21, 2007, Sophia Kundratic filed assault and harassment charges against 

plaintiff after a domestic incident in which plaintiff, according to the police report, 

 

1

―When considering a district court‘s grant of a motion to dismiss under Rule 12(b)(6), 

we accept all factual allegations in the complaint as true and view them in the light most 

favorable to the plaintiff.‖ Umland v. Planco Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 

2008) (internal quotation omitted). 
3

shoved her through a backyard shed door, causing her to fall to the ground and strike her 

head and the left side of her body.2See 18 Pa. Cons. Stat. §§ 2701(a)(1), 2709(a)(1).

Plaintiff claims Thomas, following through with his pledge to retaliate, was the animating 

force behind Sophia‘s decision to press charges. Plaintiff also asserts that, en route to his 

arraignment, the Rice Township police vehicle in which he was being transported was 

overtaken by a Pennsylvania State Police car occupied by Thomas. By virtue of his 

advance arrival, Thomas was able to exploit his friendship with the magisterial district 

judge to ensure bail would be set at the ―unusually high‖ amount of $20,000. Plaintiff 

ultimately was found guilty of the harassment charge; the assault charge was dismissed.

II.

Plaintiff initiated this action in the District Court for the Middle District of 

Pennsylvania on September 4, 2008. He alleged violations of his First and Fourth 

Amendment rights and additionally pursued state law claims for civil conspiracy and 

intentional infliction of emotional distress. Defendants moved to dismiss on January 20, 

2009. Plaintiff filed an amended complaint on March 2, 2009, and defendants again 

moved to dismiss. On July 2, 2009, the District Court granted defendants‘ motion. 

Plaintiff timely appealed.3

III.

 

2 Although plaintiff‘s Complaint fixes the date of this incident at February 22, 2007, the 

police report reveals it occurred in April. As explained below, this discrepancy casts 

doubt on plaintiff‘s First Amendment claim. 

3

The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We have 

jurisdiction to review the District Court‘s final order under 28 U.S.C. § 1291.
4

1.

We review de novo the District Court‘s grant of defendants‘ motion to dismiss for 

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Ballentine v. 

United States, 486 F.3d 806, 808 (3d Cir. 2007). ―The test in reviewing a motion to 

dismiss for failure to state a claim is whether, under any reasonable reading of the 

pleadings, [the] plaintiff may be entitled to relief.‖ Holder v. City of Allentown, 987 F.2d 

188, 194 (3d Cir. 1993). The defendant bears the burden of proving the plaintiff has 

failed to articulate a claim upon which relief could be granted. Gould Elecs., Inc. v. 

United States, 220 F.3d 169, 178 (3d Cir. 2000). In the context of a section 1983 claim, a 

plaintiff may withstand a motion to dismiss if his complaint ―sufficiently alleges a 

deprivation of any right secured by the constitution.‖ Holder, 987 F.2d at 194 (quoting 

D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1367 (3d Cir. 

1992)). 

However, we ―draw on the allegations of the complaint . . . in a realistic, rather 

than a slavish, manner,‖ City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 

(3d Cir. 1998), and we ―are not . . . required to accept as true unsupported conclusions 

and unwarranted inferences,‖ Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light 

Co., 113 F.3d 405, 417 (3d Cir. 1997), cert. denied, 118 S. Ct. 435 (1997). ―While Rule 

12(b)(6) does not permit dismissal of a well-pleaded complaint simply because  ̳it strikes 

a savvy judge that actual proof of those facts is improbable,‘ the  ̳[f]actual allegations 

must be enough to raise a right to relief above the speculative level.‘‖ Phillips v. County 
5

of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555–56 (2007)).

2.

To state a claim under 42 U.S.C. § 1983, a plaintiff must (1) allege the violation of 

a right, privilege or immunity secured by the Constitution or laws of the United States, 

and (2) demonstrate the alleged deprivation was committed by a person acting under 

color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).4In granting defendants‘ motion 

to dismiss, the District Court held the factual allegations in plaintiff‘s Complaint were 

insufficient to support either element. Because plaintiff cannot establish a deprivation of 

any constitutional right, he is not entitled to relief under § 1983.

5

A.

―[T]he right of access to the courts . . . must be freely exercisable without 

hindrance or fear of retaliation.‖ Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000) 

(quoting Milhouse v. Carlson, 652 F.2d 371, 374 (3d Cir. 1981)). A § 1983 retaliation 

 

4

42 U.S.C. § 1983 provides, in pertinent part:

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 or other person within the jurisdiction thereof 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 proceeding for redress . . . .

5 Assuming arguendo plaintiff could demonstrate defendants acted under color of state 

law, his wholesale inability to set forth facts in support of his constitutional claims 

rendered his Complaint susceptible to dismissal on a 12(b)(6) motion. Because plaintiff‘s 

failure to set forth facts attesting to one of the essential elements of a section 1983 claim 

forecloses recovery, we need not address the state action prong.
6

claim predicated on the First Amendment requires a plaintiff to show (1) he engaged in a 

protected activity; (2) the defendant responded with retaliatory action sufficient to deter a 

person of ordinary firmness from exercising his rights; and (3) a causal connection 

between the protected activity and the retaliatory action. Lauren W. ex rel. Jean W. v. 

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). 

Here, plaintiff contends his First Amendment right to petition for a redress of 

grievances was infringed when defendants retaliated against him for calling the police in 

support of his effort to expel Thomas from his driveway. Plaintiff claims Thomas 

leveraged his ―official status‖ and his ―access‖ to state authorities ―to oppress Plaintiff‘s 

right to seek redress.‖ The District Court found plaintiff could not satisfy the final 

element of the retaliation analysis because the causal linkage between the February 

driveway incident and his April arrest was ―too attenuated to support a conclusion that 

the 911 call led to his arrest.‖

We too find plaintiff‘s purported discernment of a causal nexus between his 911 

call and the subsequent police response too flimsy to warrant credence. The police report 

recounts in meticulous detail the circumstances leading to plaintiff‘s arrest on the assault 

and harassment charges. The Rice Township officers were dispatched to the scene of an 

altercation and acted accordingly; nothing suggests their conduct was propelled by a 

retaliatory impulse or anything other than their duty to enforce Pennsylvania law within 

the context of a discrete disturbance. The officers swore out a Probable Cause Affidavit, 

and a neutral magistrate set bail. Because plaintiff cannot plead facts raising his right to 
7

relief ―above the speculative level,‖ this claim must fail. See Phillips, 515 F.3d at 234 

(internal quotation omitted).

On appeal, plaintiff submits that ―the threat alone to retaliate is sufficient to 

support a First Amendment retaliation claim insofar as an official threat is sufficient to 

deter a person of ordinary firmness in the pursuit of his First Amendment rights.‖ In the 

abstract, this contention has a kernel of merit. See Brodheim v. Cry, 584 F.3d 1262, 1270 

(9th Cir. 2009) (―[T]he mere threat of harm can be an adverse action . . . because the 

threat itself can have a chilling effect.‖); Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 

1994) (finding the threat to retaliate against a prisoner sufficient to establish a First 

Amendment violation). For a threat to be actionable on a section 1983 retaliation claim, it 

would have to dissuade a plaintiff from engaging in protected action in the future. See 

Virginia v. Hicks, 539 U.S. 113, 119 (2003) (expressing concern that the mere threat to 

enforce an overbroad law ―may deter or  ̳chill‘ constitutionally protected speech‖). Here, 

Thomas‘ alleged threat to retaliate came after plaintiff had called 911, and plaintiff did 

not indicate he intended to pursue further legal action. A chilling effect, by nature, can 

only have prospective ramifications; because plaintiff's protected activities were already 

completed when Thomas vocalized his threat, plaintiff would have us hold that the threat 

retroactively silenced completed speech. Therefore, because plaintiff does not allege that 

Thomas‘ threat deterred him from engaging in protected activity, this threat is not of the 

type that can underpin a section 1983 retaliation claim.

B.
8

Plaintiff contends defendants violated his Fourth Amendment rights by 

collaborating with local law enforcement officials to initiate and pursue a baseless 

criminal prosecution. In Pennsylvania, a party advancing a malicious prosecution claim 

must demonstrate that (1) the defendant initiated a criminal proceeding; (2) the 

proceeding ended in the plaintiff‘s favor; (3) the proceeding was initiated without 

probable cause; and (4) the defendants acted maliciously or for a purpose other than 

bringing the plaintiff to justice. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791 (3d 

Cir. 2000). A plaintiff anchoring a 1983 claim on an allegedly malicious prosecution 

must establish both the common law elements of the tort and a ―deprivation of liberty 

consistent with the concept of seizure as a consequence of a legal proceeding.‖ Estate of 

Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).

Although the assault charge plaintiff decries as ―bogus‖ was ultimately dismissed, 

plaintiff was found guilty on the related harassment charge. In forwarding his 1983 claim, 

plaintiff attempts to decouple these offenses; he posits that, in isolation, the harassment 

charge would not have supported the deprivations of liberty he was forced to endure. 

However, we do not allow this type of conceptual severance within the framework of a 

1983 malicious prosecution claim. An essential element of the Pennsylvania tort is that 

the criminal proceeding must have terminated in favor of the accused. Recently, we have 

held that ―the favorable termination of some but not all individual charges does not 

necessarily establish the favorable termination of the criminal proceeding as a whole.‖ 

Kossler v. Crisanti, 564 F.3d 181, 188 (3d Cir. 2009) (en banc). We wrote,
9

The favorable termination element is not categorically satisfied whenever 

the plaintiff is acquitted of just one of several charges in the same 

proceeding. When the circumstances — both the offenses as stated in the 

statute and the underlying facts of the case — indicate that the judgment as 

a whole does not reflect the plaintiff‘s innocence, then the plaintiff fails to 

establish the favorable termination element.

Id. Therefore, we have expressly forbidden precisely the type of parsing plaintiff proffers. 

Because plaintiff cannot demonstrate the proceeding ―as a whole‖ terminated in his favor, 

the conviction on the harassment count — which arose out of the same incident that 

occasioned the assault charge — necessarily prevents plaintiff from prevailing on any 

malicious prosecution claim stemming from that incident. Accordingly, his 1983 claim 

must also fail.

IV.

Lastly, the District Court denied plaintiff leave to file a second amended 

complaint.6Plaintiff filed an amended complaint after defendants filed their first motion 

to dismiss. See Fed. R. Civ. P. 15(a)(1) (permitting a party to amend its pleading once as 

a matter of course). Concluding plaintiff was thus ―on notice of the arguments forming 

the basis of defendants‘ motion and . . . had the opportunity to rectify the potential 

problems in the complaint,‖ the court rejected plaintiff‘s motion for leave to amend his 

Complaint once more. See Fed. R. Civ. P. 15(a)(2) (instructing courts to ―freely give 

leave when justice so requires‖).

 

6 We review the District Court‘s decision to deny plaintiff leave to amend for abuse of 

discretion. Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000).
10

In general, the liberality of the pleading regime is accentuated within the civil 

rights context. We have ―consistently held that when an individual has filed a complaint 

under § 1983 which is dismissible for lack of factual specificity, he should be given a 

reasonable opportunity to cure the defect, if he can, by amendment of the complaint and 

that denial of an application for leave to amend under these circumstances is an abuse of 

discretion.‖ Darr v. Wolfe, 767 F.2d 79, 81 (3d Cir. 1985), abrogated on other grounds 

by Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004). However, a district court need not 

grant leave to amend a complaint if ―the complaint, as amended, would fail to state a 

claim upon which relief could be granted.‖ Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 

2000). Moreover, a court ―has discretion to deny a plaintiff leave to amend where the 

plaintiff was put on notice as to the deficiencies in his complaint, but chose not to resolve 

them.‖ Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir. 2002).

Here, defendants‘ motion to dismiss placed plaintiff on notice of the Complaint‘s 

deficiencies, and plaintiff proved unable to cure these fatal shortcomings. Plaintiff‘s 

initial amendment consisted of a few cosmetic changes, but he failed to augment his 

pleading with additional factual allegations sufficient to withstand a 12(b)(6) motion. See 

Krantz, 305 F.3d at 144. We are convinced a second attempt would be fruitless. 

Plaintiff‘s First Amendment claim falters because disinterested officers, undertaking their 

duties, made a probable cause determination and placed plaintiff under arrest. Plaintiff 

has not alleged these officers possessed a retaliatory motive, and thus he cannot 

demonstrate a causal link between his 911 call and his arrest two months later. Moreover, 
11

his claim that Thomas‘ threat alone was sufficient to backstop a First Amendment claim 

is nullified by the chronological fact that the threat followed the protected action and did 

not stymie plaintiff‘s efforts to engage in protected activity. Finally, plaintiff‘s 

harassment conviction renders his Fourth Amendment claim nonviable notwithstanding 

any additional factual allegations he might include in an amended Complaint.

V.

For the foregoing reasons, we will affirm.