DWIGHT A. PENBERTH, Jr. v. George Krajnak

Pursuant to 28 U.S.C. § 636(c), the parties consented to having Magistrate Judge1
Thomas M. Blewitt decide this motion. As Magistrate Judge Blewitt’s order has the
NOT PRECEDENTIAL
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-1734
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DWIGHT A. PENBERTH, Jr.,
Appellant
v.
GEORGE KRAJNAK;
JAMES STRAUSS;
BOROUGH OF LANSFORD.
Appeal from the United States District Court
for the Middle District of Pennsylvania
(Civ. No. 06-cv-1023)
Pursuant to 28 U.S.C. § 636(c), Magistrate Judge: Hon. Thomas M. Blewitt
Submitted pursuant to Third Circuit LAR 34.1(a)
September 29, 2009
Before: McKEE, CHAGARES and NYGAARD
Circuit Judges
(Opinion filed: October 9, 2009)
OPINION
McKEE, Circuit Judge.
Dwight A. Penberth appeals the district court’s order granting the defendants’1

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power and effect of an order of a district court, we will refer to it accordingly herein.
We will refer to the plaintiff as Penberth and his father as Penberth, Sr.2
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motion for summary judgment on his 42 U.S.C. § 1983 claims. Penberth alleged that the
Borough of Lansford and its Mayor and Chief of Police, violated his rights under the First
and Fourth Amendments to the Constitution by interfering with his right of association
and by unlawfully seizing his person and property. For the reasons that follow, we will
affirm the decision of the district court.
I.
Because we write primarily for the parties, we will recite only as much of the facts
and history of this case as is necessary for our decision.2
Penberth alleges violations of 42 U.S.C. § 1983 and other state law claims. His
claims under § 1983 include malicious prosecution and improper seizure of his property
in violation of the Fourth Amendment, and that defendants’ actions violated his First
Amendment right to association by interfering with his relationship with his father. Our
standard of review is plenary. Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007).
II.
As the district court explained, in order to maintain a malicious prosecution claim
under the Fourth Amendment, Penberth must show: (1) the defendant initiated a criminal
proceeding; (2) that proceeding ended in Penberth’s favor; (3) the defendant initiated the
proceeding without probable cause; (4) the defendant acted maliciously or for a purpose

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other than bringing Penberth to justice; and (5) Penberth suffered deprivation of liberty
consistent with the concept of seizure as a consequence of a legal proceeding. Johnson,
477 F.3d at 82-83 (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)).
Here, defendants did initiate a criminal proceeding that ended in Penberth’s favor.
However, the parties dispute the existence of probable cause. The district court did not
reach that issue because it decided that Penberth did not present facts sufficient to show
that he suffered a deprivation of liberty consistent with the concept of seizure. We agree.
We have held that where a defendant was required “to post a $10,000 bond, . . . to
attend all court hearings[,] . . . to contact Pretrial Services on a weekly basis . . ., and . . .
was prohibited from traveling outside New Jersey and Pennsylvania . . .[a]lthough it is a
close question, . . . these restrictions amounted to a seizure.” Gallo v. City of
Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998). However, we have also held that where
plaintiffs “were only issued a summons; . . . were never arrested; . . . never posted bail; . .
. were free to travel; and . . . did not have to report to Pretrial Services” they were not
subject to a “seizure” within the meaning of the Fourth Amendment. DiBella v. Borough
of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005).
Penberth was detained for 35 to 40 minutes. “[H]e did not have to post bail [or]
communicate with pre-trial services, and he had no travel or geographic restraints placed
on him.” Penberth v. Krajnak, No. 06 Civ. 1023, 2008 WL 509174, *18 (M.D. Pa. Feb.
21, 2008). As we stated in DiBella, “[i]f Gallo was a ‘close question;’ here there could be

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no seizure significant enough to constitute a Fourth Amendment violation in support of a
Section 1983 malicious prosecution action.” 407 F.3d at 603.
The requirement of a constitutional harm applies equally with respect to all
defendants. Accordingly, we will affirm the district court’s grant of summary judgment
with respect to Penberth’s § 1983 claim for unlawful seizure of his person against all
defendants.
III.
There is scant support for Penberth’s claim that he alleged facts sufficient to
sustain a § 1983 claim for seizure of his car or the police equipment in the car in violation
of the Fourth Amendment. He argues that: “through the arrest, Defendants secured what
they could not have secured in civil court–a return of property lawfully sold and
belonging to Plaintiff.” Appellant Br. at 18. Defendants argue that Penberth waived this
claim because he failed to plead it in his complaint.
Whether or not Penberth preserved this claim, the undisputed evidence “shows
only that, as part of the agreement to withdraw the charges against Plaintiff, Plaintiff was
required to bring his car to Krajcirik’s Garage on October 7, 2005 so that the police
equipment could be removed from it.” Penberth, 2008 WL 509174 at * 18. Penberth
voluntarily brought the car to the agreed upon location and surrendered the equipment.
Moreover, Penberth does not argue that the police equipment stripped from the police car
somehow belonged to him. Nor does Penberth seek return of those items. Accordingly,

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we will affirm the district court’s dismissal of Penberth’s § 1983 claim for seizure of his
property in violation of his Fourth Amendment rights.
IV.
Finally, Penberth attempts to materialize a claim under § 1983 by arguing that
defendants interfered with his relationship with his father in violation of his First
Amendment right “to enter into and maintain certain intimate human relationships.” Doe
v. City of Butler, 892 F.2d 315, 323 (3d Cir. 1989) (quoting Roberts v. United States
Jaycees, 468 U.S. 609, 617 (1984)). Specifically, he alleges that defendants brought
charges against him and inflated those charges in order to cause a rift between him and
his father. The district court held that plaintiff failed to produce evidence showing how
defendants actions interfered with his relationship with his father. Penberth, 2008 WL
209174 at * 23. We agree; in fact, the argument is strained at best.
To morph his allegations into a claim under the First Amendment, the record must
contain sufficient evidence that state action “directly and substantially” interfered with
Penberth’s relationship with his father. See Lyng v. Castillo, 477 U.S. 635, 638 (1986).
Although Penberth discusses defendants’ intent to embarrass his father, there is nothing
on this record that would raise a material issue of fact about any interference whatsoever
with that relationship. Moreover, the Supreme Court has upheld policies with a far more
obvious and significant impact on familial ties than appears on this record. See Lyng, 477
U.S. at 638 (holding that law lowering food stamp allotments for certain family members

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living together below levels they would have received if they lived separately or were
unrelated does not directly and substantially burden the right to association); see also
Califano v. Jobst, 434 U.S. 47, 58 (1977) (upholding termination of Social Security
benefits for a disabled dependent child who marries someone ineligible for benefits).
Accordingly, we will affirm the district court’s dismissal of Penberth’s § 1983 claim for
interference with his right to association in violation of his First Amendment rights.
V.
For the above reasons, we will affirm the order of the district court.

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