Donahue v. City of Hazleton, PA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

SEAN M. DONAHUE, :

Plaintiff : CIVIL ACTION NO. 3:14-1351

v. : (MANNION, D.J.)

(MEHALCHICK, M.J.)

CITY OF HAZLETON, et al., :

Defendants :

MEMORANDUM

Pending before the court is the April 13, 2020 report of Judge

Mehalchick, (Doc. 105), which recommends that defendants’ motion for

summary judgment, (Doc. 80), be granted in part, and denied in part.

Specifically, it is recommended that defendants’ motion be denied regarding

plaintiff’s 4th Amendment excessive force claim relating to the aiming of

defendants’ firearms at plaintiff after he was arrested and handcuffed, and

that the motion be denied regarding this claim against the City of Hazelton

based on municipal liability. It is recommended that defendants’ motion be

granted with respect to all of the plaintiff’s other claims in Counts I-IV of his

complaint. Further, it is recommended that plaintiff’s motions to compel,

(Docs. 72 & 75), and his Rule 11 motion to impose sanctions on defense

counsel, (Doc. 90), be denied.

After granting the motions for extensions of time filed by both parties

to object to Judge Mehalchick’s report, defendants and plaintiff filed their

respective objections on April 27, 2020. (Docs. 109 & 111). Plaintiff also filed

a reply brief to defendants’ objections on May 21, 2020, with attached

Exhibits, including the police Criminal Complaint and Affidavit of probable

cause filed against him, the August 2012 Search Warrant and Application

for his house, and the Information charging him in the underlying criminal

case filed against him. (Docs. 123 & 123-1). Plaintiff also submitted two of

his Affidavits (numbers 3 & 4) with attached copies of transcripts from

proceedings in his underlying state court criminal case and transcripts from

depositions taken in the present case. (Docs. 125 & 126). The court has

reviewed Judge Mehalchick’s report, plaintiff’s objections to it as well as

defendants’ objections and plaintiff’s reply, and it will ADOPT IN ITS

ENTIRETY the report and GRANT defendants’ motion for summary

judgment as to all claims except for the stated 4th Amendment excessive

force claim against the individual defendants and against the City of

Hazelton based on municipality liability. The objections of both parties to the

report will be OVERRULED. Plaintiff’s motions to compel and his motion for

sanctions will be denied.

I. BACKGROUND1

Briefly, by way of background, on July 15, 2014, the plaintiff, Sean M.

Donahue, filed, through counsel, the instant civil rights action pursuant to 42

U.S.C. §1983 alleging violations of his constitutional rights by the

defendants in relation to events regarding his August 21, 2012 arrest,

imprisonment and subsequent conviction.2 (Doc. 1). The plaintiff is now

proceeding pro se in this matter.

In particular, plaintiff’s claims are as follows: Count I, 4th Amendment

Excessive Force claims against all Defendants3; Count II, 4th Amendment

Malicious Prosecution claim against all defendants; Count III, 5th and 14th

Amendments Takings against all defendants; and Count IV, 1st

Amendment Retaliation against all defendants. (Doc. 1, at 19-36). Plaintiff

also asserts a municipal liability claim under Monell v. Dep’t of Soc. Servs.

1Since the full background of this case is stated in Judge Mehalchick’s

report as well as the briefs of the parties and their statements of facts

regarding defendants’ dispositive motion, it shall not be fully repeated herein.

As the report correctly notes, only the statement of facts and responses that

are supported by citation to the evidence in the record were considered. See

Local Rule 56.1, M.D.Pa. Additionally, the court will limit its discussion to

information relevant to the objections of the parties to Judge Mehalchick’s

report.

2All of the defendants named in this case, as well as their positions, are

stated in Judge Mehalchick’s report and in footnote 8 below.

3As indicated in the report, Count I consists of two 4th Amendment

excessive force claims, namely, a claim arising from use of SWAT-like team

and a claim arising from aiming weapons at plaintiff after he was handcuffed.

of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018 (1978), against the City of

Hazleton.

After the stay that was imposed by the court pending plaintiff’s appeals

of his state court conviction in his underlying criminal case was lifted on

August 1, 2019, discovery ensued.4

During discovery, plaintiff filed his two motions to compel defendants

to respond to his voluminous discovery requests. (Docs. 72 & 75).

After discovery was completed, defendants filed a motion for summary

judgment on October 15, 2019, regarding all of plaintiff’s claims against

them. (Doc. 80). Defendants’ motion was briefed by the parties and a

statement of material facts was filed, as well as exhibits.

On October 30, 2019, plaintiff filed his Rule 11(c) motion for sanctions

alleging numerous incidents of misconduct by defense counsel during the

course of this case. (Doc. 90).

Judge Mehalchick issued her report on April 13, 2020 regarding all of

the stated pending motions. (Doc. 105).

4 Plaintiff was charged with: (1) harassment under 18 Pa.C.S.

§2709(a)(3); and (2) making terroristic threats with intent to terrorize another

under 18 Pa. C.S. §2706(a)(1). The first charge was dismissed and plaintiff

was convicted of the second charge. The court takes judicial notice of the

Dauphin County Court Criminal Docket in plaintiff’s underlying criminal case,

Commonwealth v. Donahue, No. CP-40-CR-0003501-2012 (Dauphin Cnty.

Ct. Com. Pl.). See also plaintiff’s Exhibits attached to his Doc. 123 reply brief.

On April 27, 2020, defendants filed their objections to the report and

brief in support, (Docs. 109 & 110), claiming that the report erred only with

respect to the recommendation that the individual defendants were not

entitled to qualified immunity regarding plaintiff’s 4th Amendment excessive

force claim arising when defendants pointed their firearms at him after he

was arrested and handcuffed, and with respect to the recommendation that

plaintiff’s municipal liability claim against the City of Hazelton regarding the

aiming of weapons incident be allowed to proceed.

Also, on April 27, 2020, plaintiff filed his objections to the report

claiming that the report erred with respect to all of its findings as to all of his

claims except for his stated excessive force claim that was recommended

to be allowed to proceed. Plaintiff also objects to the report’s

recommendations regarding his motions to compel and motion for

sanctions. (Doc. 111). On May 5, 2020, plaintiff filed his brief in support of

his objections. (Doc. 113).

On May 6, 2020, plaintiff filed a document styled as an amendment to

his May 2, 2020 filing indicating that he did not receive copies of the

defendants’ objections to the report and brief in support, (Docs. 109 & 110),

and he requested additional time to respond to them after defendants sent

him their documents. (Doc. 115). Defendants concurred in plaintiff’s request.

The court gave plaintiff additional time to respond to defendants’ objections.

Plaintiff filed his reply brief with Exhibits on May 21, 2020.5 (Doc. 123).

II. STANDARD OF REVIEW6

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499

(M.D.Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, "satisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation." Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp. 2d 465, 469

5The plaintiff also filed a motion to exceed the page limitation with

respect to his reply brief, (Doc. 122), and defendants opposed it. However,

the court will grant the motion.

6Since Judge Mehalchick states the appropriate standards with respect

to a summary judgment motion and with respect to a civil rights action under

42 U.S.C. §1983 in her report, the court will not repeat them herein.

(M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987) (explaining that judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or

not, the district court may accept, not accept, or modify, in whole or in part,

the findings or recommendations made by the magistrate judge. 28 U.S.C.

§636(b)(1); Local Rule 72.31.”[A] Report and Recommendation does not

have force of law unless and until the district court enters an order accepting

or [not accepting] it.” Garceran v. Morris County Prosecutors Office, 2015

WL 858106, *1 (D.N.J. Feb. 27, 2015) (citing United Steelworkers of Am. v.

N.J. Zinc Co., Inc., 828 F.2d 1001, 1005 (3d Cir. 1987)).

III. DISCUSSION

The court will first address defendants’ objections that Judge

Mehalchick erred in her report to the extent that she recommends that their

motion for summary judgment be denied since she found that defendants

were not entitled to qualified immunity regarding plaintiff’s 4th Amendment

excessive force claim arising from the pointing of weapons at him while he

was detained and handcuffed.

The doctrine of qualified immunity provides that government officials

performing “discretionary functions,” are shielded from suit if their conduct

did not violate a “clearly established statutory or constitutional right [ ] of

which a reasonable person would have known.” Wilson v. Layne, 526 U.S.

603, 609(1999); Saucier v. Katz, 533 U.S. 194, 201–02 (2001). Qualified

immunity provides not only a defense to liability, but “immunity from suit.”

Hunter v. Bryant, 502 U.S. 224, 227 (1991); Mitchell v. Forsyth, 472 U.S.

511, 526 (1985). To determine whether the individual defendants are

entitled to qualified immunity, the court must analyze two factors: 1) whether

the plaintiff has shown facts that make out a constitutional rights violation,

and if so, 2) whether those rights were “clearly established” at the time of

the incident. Pearson v. Callahan, 555 U.S. 223 (2009); see also Perez v.

Borough of Berwick, 507 Fed.Appx. 186, 192 (3d Cir. 2012) (“To determine

whether the individual officers are entitled to qualified immunity, the District

Court [is] required to consider whether, under the factual scenario of this

case, the officers were reasonable to believe that their actions did not violate

the [plaintiff’s] clearly established rights.”); Taylor v. Barkes, 575 U.S. 822,

135 S.Ct. 2042, 2044 (2015) (“Qualified immunity shields government

officials from civil damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of the challenged

conduct.”) (citation omitted).

Since Judge Mehalchick details the undisputed facts relevant to

plaintiff’s excessive force claims (Count I, first and second claims) in her

report, (Doc. 105 at 2-4, 7-11), which are adopted, the court will not fully

repeat them herein. Briefly, as the report states, plaintiff alleges that

“Defendants initiated a SWAT-like raid of his home utilizing the Special

Operations Group (“SOG”) and pointed ‘various deadly weapons’ at him

while he was handcuffed, detained, and not resisting.” (Doc. 105 at 7) (See

also Doc. 1, ¶’s 112-130). The report correctly finds that only de minimis

force was used on plaintiff during his arrest and that he was not physically

injured, and that the defendants’ use of a SWAT-type team with guns drawn

in conducting the raid on plaintiff’s home was reasonable under the

circumstances involving plaintiff’s threatening August 17, 2012 email to the

Luzerne County District Attorney. As the report finds, “[plaintiff’s]

statements, coupled with the tone of [his] email as a whole, clearly

communicated that Donahue may have posed a threat to officers entering

his property and his invocation of the Second Amendment provided a

significant probability that he would be armed”, and that “Defendants’

reasonable belief that Donahue posed a threat to their safety justified the

use of a SWAT-like team.” (Doc. 105 at 9; Doc. 123, attached Affidavit of

probable cause).

However, the report concludes that the evidence is disputed as to

whether defendant officers’ use of their firearms which were drawn and

aimed at plaintiff after he was handcuffed and posed no threat to them

constituted excessive force. In fact, plaintiff states that there was “at least

an hour of time for the gunpoint interrogation of the handcuffed, passive,

non[-]resisting plaintiff who didn’t attempt to flee”, and he cites to hospital

records to support his alleged time period. (Doc. 123 at 14-15). In their

objections, defendants take issue with the report’s finding that they are not

entitled to qualified immunity on the stated claim since “[they] [fail to]

establish that they did not aim their weapons at Donahue while he was

handcuffed and not resisting”, and since “a reasonable jury could find that

Defendants exerted excessive force upon Donahue after he was handcuffed

[and being taken out of his house] [by pointing seven guns at him] thereby

violating his rights under the Fourth Amendment.” (Doc. 105 at 10).

The court concurs with the report that based on the disputed evidence

as to whether plaintiff had seven guns pointed at him when he “was neither

dangerous nor likely to flee”, defendants are not entitled to qualified

immunity at this time since “[i]t was clearly established by [Baker v. Monroe

Twp., 50 F.3d 1186, 1193 (3d Cir. 1995)] in 1995 that the use of a pointed

gun could constitute excessive force, and that the complete absence of

threat or possible escape rendered the use of force unreasonable.” (Id. at

13-14).

In their objections, defendants point to their evidence to try and show

that the facts are not disputed and that they did not continue to point their

firearms at plaintiff after he was handcuffed. Defendants rely upon the

deposition testimony of Officers Leonard and Coffman as to “the rationale

for having guns drawn [on plaintiff] as well as how brief the entire encounter

was from the time [plaintiff] was handcuffed until he was removed from [his

house.]” However, defendants acknowledge that “neither officer was

questioned about Donahue’s allegation in the Complaint about whether

guns we[r]e pointed at him while he was being removed from the residence

through the kitchen.” While defendants concur with the report’s finding that

they did not violate plaintiff’s 4th Amendment right to be free from excessive

force when they entered his house and initially pointed their firearms at him

when he was at the top of the steps, especially since they could not

determine if he was armed at that point, until he was detained and

handcuffed, they contest the report’s finding that it is disputed as to whether

plaintiff’s right was violated after defendants allegedly continued to point

seven guns at him when he was handcuffed and being removed from his

house into a patrol car, which lasted “a few minutes.” Leonard merely

testified that he believed when plaintiff was at the top of the steps this was

“probably” the only time weapons were pointed at him. Coffman did not

directly address whether defendant officers continued to point their guns at

plaintiff when he was being taken out of his house, rather he only discussed

why officers were apprehensive when entering plaintiff’s house and how he

feared that plaintiff had rigged something to blow up in the house due to his

barricade of kitchen chairs and the extreme heat in the house. Coffman also

stated that after plaintiff was detained and handcuffed officers “got him right

out of the house.” Nonetheless, Coffman did not address whether officers

continued to point several guns at plaintiff while he was being taken out of

his house, i.e., the relevant issue. Nor is there any claim that plaintiff made

any threatening actions after he was handcuffed and being taken out of his

house.

Thus, even though defendants contend that plaintiff has not submitted

any other evidence to contradict the testimony of Leonard and Coffman, the

testimony of these two officers are not sufficient to show that defendants are

entitled to qualified immunity on the stated excessive force claim. In any

event, plaintiff cites to evidence in his Doc. 123 reply brief to support his 4th

Amendment excessive force claim regarding the officers’ pointing of their

weapons at him after he was handcuffed and being questioned. The

plaintiff’s cited evidence in his reply brief as well as the evidence discussed

in the report are sufficient to deny the officers’ contention that they are

entitled to qualified immunity at the summary judgment stage since there

are simply too many disputed facts regarding the stated claim.

Further, the cases upon which defendants rely in their objections,

(Doc. 110 at 19-21), are distinguishable since the report agrees with the

cited cases that the use of the SWAT team and the pointing of multiple guns

at plaintiff while he was being apprehended, detained, and handcuffed in his

house, i.e., while gaining control of plaintiff and effecting his arrest, did not

violate plaintiff’s 4th Amendment right. As the report discusses, it was not a

violation of plaintiff’s rights when the officers pointed their weapons at him

when he was at the top of the steps in his house until they gained control

over him and handcuffed him to protect their safety. Also, it is not the force

that was used to effectuate plaintiff’s arrest when the officers entered his

house that is at issue. Nor is it of any moment that there was only limited

physical force used on plaintiff while he was being arrested and that he was

not injured. As the report finds, the evidence is disputed as to whether

defendant officers continued to point seven guns at plaintiff after he was

handcuffed and then while he was being taken out of his house. In fact, in

his brief in support of his objections, (Doc. 113 at 12), plaintiff states that

“[d]efendants did much more than merely point guns at [him] while he was

handcuffed”, and that “[t]hey interrogated him using their weapons and the

fact that he was helplessly h[a]ndcuffed as a means of physical and

psychological torture.” In his complaint, (Doc. 1 at 15), the plaintiff alleges

that after he came down the steps in his house defendants apprehended

him, handcuffed him and patted him down twice for weapons, and that when

he was lead backwards into his kitchen, despite the fact that he did not resist

or threaten to use any force, “Defendants Leonard and/or Ledger, to face at

least four (4) officers, including Defendant Officers, with various firearms

equipped with barrel lights, pointed at him, with an additional three (3)

Defendant Officers pointing firearms at him from another direction.” (See

also plaintiff’s complaint, Doc. 1 at 20-24). Also, as mentioned, plaintiff

details supporting evidence in his reply brief. (Doc. 123).

If such facts are established at trial, it does not appear that a

reasonable officer under the stated circumstances after plaintiff was secured

could perceive plaintiff as a threat and would be justified in continuing to

point several guns at him. There is also insufficient evidence as to the exact

amount of time that the guns were pointed at plaintiff after he was

handcuffed and posed no threat, and then while he was being escorted out

of his house despite defendants’ contention that it was only “momentarily.”

Plaintiff presents evidence in his reply to controvert defendants’ contention

of the time frame. This issue must also be resolved at trial. The report also

cites to ample precedent to support its recommendation that defendants

should not be given qualified immunity with respect to the stated claim.

The court has reviewed the evidence, including the extensive citation

to testimony in plaintiff’s underlying criminal case and his own testimony, as

he quotes in his reply brief, (Doc. 123), and concurs with the report that at

this stage of the case it will be for the jury to determine whether defendants

did in fact continue to point their firearms at plaintiff when he no longer posed

any threat or possibility of escape regardless of how short a time period

defendants allege and, if so, whether this conduct violated his 4th

Amendment right.

“At summary judgment, courts are required to view the facts and draw

reasonable inferences in the light most favorable to the party opposing the

summary judgment motion”, and “[i]n qualified immunity cases, this usually

means adopting ... the plaintiff's version of the facts.” Noble, 112 F.Supp. 3d

at 226 (internal citations omitted).

The court has reviewed Judge Mehalchick’s report and defendants’

objections to it as well as plaintiff’s reply, and finds that defendants are not

entitled to qualified immunity regarding plaintiff’s stated excessive force

claim. See Thompson v. Howard, 679 Fed.Appx. 177, 181 (3d Cir. Feb. 17,

2017) (“To decide if a use of force was ‘objectively reasonable[,]’ we

consider the ‘severity of the crime at issue, whether the suspect pose[d] an

immediate threat to the safety of the officer or others, and whether he [was]

actively resisting arrest or attempting to evade arrest by flight.’”) (citations

omitted). Thus, in the instant case, to be entitled to qualified immunity, a

reasonable officer would have had to believe that pointing his weapon at

plaintiff after he was detained and handcuffed, under the circumstances at

the time of plaintiff’s arrest, did not violate plaintiff’s clearly established 4th

Amendment right. See also Reichle v. Howards, 566 U.S. 658, 132 S.Ct.

2088, 2093 (2012) (“To be clearly established, a right must be sufficiently

clear that every reasonable official would have understood that what he is

doing violates that right.”).

As the Third Circuit in Couden v. Duffy, 446 F.3d 483, 496-97 (3d Cir.

2006), explained:

The use of excessive force is itself an unlawful “seizure” under the

Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct.

1865, 104 L.Ed.2d 443 (1989); Carswell v. Borough of Homestead, 381

F.3d 235, 240 (3d Cir. 2004). In deciding whether challenged conduct

constitutes excessive force, a court must determine the objective

“reasonableness” of the challenged conduct, considering “‘the severity

of the crime at issue, whether the suspect poses an immediate threat

to the safety of the officer or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.’” Carswell, 381 F.3d at

240 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). Other factors

include “the duration of the [officer’s] action, whether the action takes

place in the context of effecting an arrest, the possibility that the

suspect may be armed, and the number of persons with whom the

police officers must contend at one time.” Sharrar v. Felsing, 128 F.3d

810, 822 (3d Cir. 1997). In evaluating reasonableness, the court must

take into consideration the fact that “police officers are often forced to

make split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Graham, 490 U.S. at 397, 109 S.Ct.

1865. Thus, the court should not apply “the 20/20 vision of hindsight,”

but should instead consider the “perspective of a reasonable officer on

the scene.” Id. at 396, 109 S.Ct. 186.

The Court in Couden, id. at 497, then stated that the factors relevant

to an excessive force claim and the analysis of whether the 4th Amendment

right in question was clearly established is “well-recognized,” as it described

above. (citing Sharrar, 128 F.3d at 822; cf. Estate of Smith v. Marasco, 430

F.3d 140, 150 (3d Cir. 2005) (noting that a “reasonable officer would be

guided by the Sharrar factors in determining whether to use overwhelming

force in a given situation,” and that “if an officer applies the Sharrar analysis

in an unreasonable manner, he is not entitled to qualified immunity”)). In the

Couden case, the Court found that when four officers jumped the plaintiff

and used mace, pointed several guns pointed at his head, and used

handcuffs this “constituted excessive force against a cooperative and

unarmed subject most of these factors—including the potential threat posed

by the suspect, whether the suspect was resisting arrest, armed, or

attempting to flee, and the ratio of officers to suspects—clearly suggested

the use of a low level of force.” Id. The Court then concluded that “based on

relevant precedent at the time, a reasonable officer would not have believed

that the level of force used against [plaintiff] was legal under the

circumstances.” Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d

Cir. 1995) (finding liability for excessive force where officers pointed guns at

and handcuffed several members of a family where there was “simply no

evidence of anything that should have caused the officers to use the kind of

force they are alleged to have used”); Robinson v. Solano County, 278 F.3d

1007, 1015 (9th Cir. 2002) (en banc ) (finding the law sufficiently established

in 2002 to recognize the “general principle that pointing a gun to the head of

an apparently unarmed suspect during an investigation” can constitute

excessive force, “especially where the individual poses no particular

danger”)).

The conclusion of the report that defendants are not entitled to

qualified immunity is correct since it is not clear if a reasonable officer would

have believed that he and the other officers were in serious danger as they

continued to point their guns at plaintiff when he was handcuffed, under their

complete control, and did not make any threatening actions, through the

time that he was being removed from his house.

Additionally, the standard for qualified immunity is whether a

reasonable officer in defendant’s position would have believed he was

violating a clearly established constitutional right by pointing his firearm at a

person who was arrested on a misdemeanor charge and handcuffed, and

who was not posing any danger. See Thompson, 679 Fed.Appx. at 181.

Given the disputed facts as to whether defendant officers continued to

point their guns at plaintiff after he was handcuffed and no longer posing a

substantial risk of serious injury to the officers, given the dispute over the

time period the guns were pointed at plaintiff, and given plaintiff’s lack of

threatening behavior and lack of any attempts to flee after his arrest, the

court cannot say if it was objectively reasonable for police officers to

continue pointing their firearms at plaintiff, under all of the circumstances of

this case, and if “every reasonable official would [have understood] that what

he [was] doing violate[d]” plaintiff’s 4th Amendment rights. Reichle, 566 U.S.

658, 132 S.Ct. at 2093.

Thus, under the totality of the circumstances and based on Supreme

Court and Third Circuit precedent, defendants are not entitled to summary

judgment since there are disputed facts as to whether they continued to

point their guns at plaintiff after he was handcuffed, and if so, as to whether

it was objectively reasonable for them to do so. See Thompson, supra; see

also Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000) (“Summary judgment

is appropriate if no reasonable juror could conclude that [the plaintiff’s]

clearly established rights were violated.”).

As such, the court finds that defendants are not shielded from liability

based on qualified immunity with respect to plaintiff’s stated excessive force

claim, (Count I, second claim) and that they are not entitled to summary

judgment on this basis.7

Defendants also contend that the Monell claim against the City should

also be dismissed since “the report does not identify the existence of a

custom or policy other than the single instance of Donahue’s arrest”, and

7In his complaint, (Doc. 1 at 12-13), the plaintiff states that according

to the Police Incident Report, (Doc. 1, Ex. F), the following defendants were

involved in his arrest at his house on August 21, 2012: Det. Lt. Kenneth

Zipovsky; Officer Frank V. DeAndrea; Lt. John Leonard; Lt. David Coffman;

Det. Lt. Jason Zola; Det. Cpl. Darryl Ledger; Patrolman Kevin Wagner; Cpl.

Kirk Wetzel; Sgt. Mark Zola; Patrolman Thomas King; and Patrolman

William Gallagher. However, Count I of plaintiff’s complaint, his 4th

Amendment excessive force claim regarding the pointing of weapons at him

when he was handcuffed, that will proceed to trial, is asserted against all

defendants, including the Doe defendants. Since discovery is over and

since plaintiff has had more than ample time in this 2014 case and still has

not identified his John and Jane Doe defendants, they will be dismissed by

the court, sua sponte, pursuant to Fed.R.Civ.P. 21. See Blakeslee v. Clinton

County, 336 Fed.Appx. 248 (3d Cir. 2009) (citing Adams v. City of Camden,

461 F.Supp.2d 263, 271 (D.N.J. 2006) (holding that, after a reasonable

period of discovery has passed, “[i]t is appropriate, before proceeding to

trial, to eliminate [the] fictitious defendants from [an] action under

Fed.R.Civ.P. 21.”)).

Also, while plaintiff asserts his 4th Amendment claim in Count I (second

claim) that will proceed against all 11 defendants, at trial he will be required

to produce evidence regarding the personal involvement of each defendant

with respect to this claim. See Rodriguez v. Thomas, 209 F.Supp.3d 618,

630-31 (M.D.Pa. March 6, 2018). The court further notes that plaintiff

indicates that seven guns were pointed at him despite his inclusion of all 11

defendants with respect to the stated claim.

since “[t]his single occurrence does not support a claim of municipal liability

against the City of Hazleton.” The court finds that the report correctly

determines that plaintiff’s excessive force claim arising from defendants

pointing their firearms at him after he was handcuffed against the City of

Hazelton based on Monell should also proceed to trial since disputed facts

exist as to whether the City had any municipal policy regarding such alleged

conduct by defendant officers. No doubt that “[w]here a failure to train claim

is alleged based on a single incident, the complaint must contain allegations

that policymakers ‘kn[e]w to a moral certainty’ that the alleged constitutional

deprivation would occur and the need for further training ‘must have been

plainly obvious.’” Ezeibe v. City of York, 2020 WL 1922632, *3 (M.D.Pa. April

21, 2020) (citing City of Canton, 489 U.S. at 390 n.10); see also Noble v.

City of Camden, 112 F.Supp.3d 208, 221 (D.N.J. June 29, 2015) (“For a

§1983 claim of failure to train or supervise municipal employees, the plaintiff

must show that the failure to provide training or supervision amounted to

“‘deliberate indifference’ to the rights of persons with whom the employee

will come into contact”, and “[d]eliberate indifference may be demonstrated

by showing a pattern of violations which puts the municipal employee on

notice that a new program is necessary; or a single incident violation where

the need for training was patently obvious.” (internal citations omitted).

Further, plaintiff’s complaint, (Doc. 1 at 18-19, 22-23), contains

several specific instances of the City’s alleged policies and customs which

violated his 4th Amendment rights with respect to his claim in Count I. (See

also Doc. 123 at 52-53). Also, in liberally construing the pro se plaintiff’s

instant contentions, he appears to claim that the City failed to train defendant

officers regarding the use of weapons after a person is arrested and

handcuffed and, failed to train defendants not to point their weapons at a

handcuffed person while he is in custody and being interrogated.

Also, since the plaintiff’s stated 4th Amendment excessive force claim

will proceed against the defendant officers, i.e., since disputed facts exist as

to whether there was a violation of his rights by defendant officers employed

by the City, this claim will be allowed to proceed against the City.

The court has also reviewed plaintiff’s objections to Judge

Mehalchick’s report and his brief in support insofar as the report

recommends that defendants be granted summary judgment on plaintiff’s

other claims. Since plaintiff largely rehashes his arguments in opposition to

defendants’ summary judgment motion which the judge already considered,

the court will not repeat the findings of the report regarding the plaintiff’s

claims on which defendants will be granted summary judgment. Additionally,

the report correctly analyzes the evidence and the case law with respect to

the plaintiff’s four claims for which it is recommended that defendants be

granted summary judgment, Count I (first claim), and Counts II-IV. The court

adopts the report in this regard and shall not repeat its discussion. (Doc. 105

at 6-24).

Also, insofar as plaintiff seeks in his objections, (Doc. 111 at 10), for

this court to “sua sponte” overturn Heck v. Humphrey, 512 U.S. 477, 114

S.Ct. 2364 (1994), which bars his malicious prosecution claim in Count II,

this court clearly cannot overturn Supreme Court precedence and declare it

unconstitutional. Moreover, the Third Circuit has consistently applied the

Heck termination rule to cases within this Circuit similar to plaintiff’s case in

which he was convicted of an underlying criminal charge and then failed to

get his conviction overturned in his state court appeals, and this court is

bound to follow them. See Curry v. Yachera, 835 F.3d 373 (3d Cir. 2016).

Next, the court considers plaintiff’s objections to the report’s

recommendation that his discovery motions should be denied.

It has been noted that “[t]here is particularly broad deference given to

a magistrate judge’s discovery rulings.” Farmers & Merch. Nat’l Bank v. San

Clemente Fin. Grp. Sec., Inc., 174 F.R.D. 572, 585 (D.N.J. 1997) (citing Toth

v. Alice Pearl, Inc., 158 F.R.D. 47, 53 (D.N.J. 1994); Republic of Philippines

v. Westinghouse Elec. Corp., 132 F.R.D. 384, 386-87 (D.N.J. 1990), aff’d,

949 F.2d 653 (3d Cir. 1991)). Thus, a district court may only overrule a

magistrate judge’s decision in a non-dispositive discovery dispute “if the

decision is clearly erroneous or contrary to law, or if the Magistrate Judge

abused h[er] discretion.” Scott Paper Co. v. U.S., 943 F. Supp. 501, 502

(E.D. Pa. 1996) (citations omitted). “In making this determination, the Court

may consider only the evidence presented to the Magistrate Judge.” Id.

(citing Haines v. Liggett Grp., Inc., 975 F.2d 81, 91 (3d Cir. 1992).

The court finds that the report correctly concludes that plaintiff’s

motions to compel, (Docs. 72 & 75), and his motion for sanctions, (Doc. 90),

should be denied. As such, the court will not repeat the sound reasoning

which led Judge Mehalchick to her conclusions regarding these discovery

motions, particularly since defendants are entitled to summary judgment

with respect to all of plaintiff’s claims except for the above stated 4th

Amendment excessive force claim in Count I (second claim).

IV. CONCLUSION

The court has reviewed the recommended reasons for granting the

summary judgment motion of defendants, (Doc. 80), as to all of plaintiff’s

claims, Count I (first claim, 4th Amendment excessive force claim arising

from use of SWAT-like team), Counts II, III and IV, except for his second 4th

Amendment excessive force claim in Count I (regarding the pointing of

defendants’ guns at plaintiff after he was handcuffed), presented by Judge

Mehalchick in her report, (Doc. 105). Because the court agrees with the

sound reasoning that led Judge Mehalchick to the conclusions in her report

and finds no clear error in the record, the court will ADOPT the report in its

entirety. The court will GRANT defendants’ summary judgment motion as to

all of plaintiff’s stated claims in Counts I-IV, except for the second claim in

Count I against all of the named individual defendants and the City of

Hazelton. Plaintiff’s motions to compel, (Docs. 72 & 75), and his motion for

sanctions, (Doc. 90), will be DENIED. The court will also OVERRULE

defendants’ objections, (Doc. 109), and plaintiff’s objections, (Doc. 111), to

Judge Mehalchick’s report. Further, as noted, the John and Jane Doe

defendants will be dismissed from this case sua sponte by the court

pursuant to Fed.R.Civ.P. 21. An appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Dated: August 3, 2020

14-1351-01