Brown v. Wayne County Pennsylvania

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

NOEL L. BROWN, :

Plaintiff : CIVIL ACTION NO. 3:18-155

v. : (MANNION, D.J.)

WAYNE COUNTY :

PENNSYLVANIA, et al.

:

Defendants

:

ORDER

Presently before the court are two report and recommendations

(“Reports”) of Magistrate Judge William I. Arbuckle. (Doc. 87; Doc. 88). The

First Report, (Doc. 87), recommends that a motion to dismiss the case as

frivolous, (Doc. 70), filed by the defendants Wayne County, Wayne County

Sheriff’s Department, Sergeant Patricia Krempasky, Wayne County District

Attorney’s Office, Wayne County Public Defender’s Office, Wayne County

Correctional Facility, Warden Kevin Bishop, and Lieutenant Justin Rivardo,

(collectively, “Wayne Defendants”), be granted.

The Second Report, (Doc. 88), recommends that the plaintiff Noel

Brown’s (“Brown”) claims in his Amended Complaint, (Doc. 69), against

defendants the Pennsylvania Department of Corrections (“DOC”), Monroe

County, the State Correctional Institution at Camp Hill (“SCI-Camp Hill”),

Michael Jezercak, Sharon Palmer, PSP Honesdale Barracks, PSP

Swiftwater Barracks, PSP Fern Ridge Barracks, Robert Yeager, Michael

Brown, Thomas O’Brien, and Trooper Joseph Diehl, (collectively, “DOC

Defendants”), as well as the claims against Monroe County, the Days Inn

Tannersville Hotel, Camilo Jacer, and the Brodheadsville Post Office of

Monroe County, be dismissed. It additionally recommends that the court

decline to retain jurisdiction over the remaining state law claims against the

Days Inn Tannersville, Jacer, and Monroe County.

Plaintiff filed objections to the Second Report. (Doc. 89). Wayne

Defendants filed a brief in opposition to Plaintiff’s objections. (Doc. 90).

Plaintiff responded with a motion to strike Wayne Defendant’s brief in

opposition, (Doc. 91), as well as brief in support, (Doc. 92). Wayne

Defendants filed a brief in opposition. (Doc. 93). Plaintiff did not file a reply

brief and the time to do so has expired.

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 U.S. v. Raddatz, 447 U.S. 667, 676 (1980)).

Even where 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 (M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d

874, 878 (3d Cir. 1987) (explaining 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); M.D.Pa. Local Rule 72.31.

In his First Report, Judge Arbuckle recommends that Wayne

Defendants’ motion to dismiss once again be granted. He notes that

Plaintiff’s Amended Complaint reiterates the same claims against the same

twenty-three defendants that were previously dismissed for failure to state a

claim. (Doc. 66; Doc. 68). Despite being granted an opportunity to cure the

deficiencies identified in his original complaint, Plaintiffs has failed to do so.

Applying the relevant law, the First Report concludes Plaintiff’s Section 1983

claims against Wayne Defendants fail due to lack of personal involvement,

and those against individual defendants fail under Heck v. Humphrey, 512

U.S. 477 (1994). Additionally, Plaintiff’s defamation-type claims fail because

they are devoid of any supporting facts; his excessive force claim against

Rivardo fails for lack of an allegation of force; and his claims against Bishop

are not legally cognizable. Finally, the First Report recommends that

Plaintiff’s claims against Wayne County fail because he does not allege that

a policy or custom caused the violations of his constitutional rights. Thus, the

First Report recommends Wayne Defendants’ motion to dismiss, (Doc. 70),

be granted.

In his Second Report, after conducting a preliminary review of

Plaintiff’s Amendment Complaint, Judge Arbuckle again recommends

dismissal of Plaintiff’s claims against DOC Defendants pursuant to 28 U.S.C.

§1915A, this time, without further leave to amend. The Second Report

recommends that Plaintiff’s Section 1983 claims against the DOC, SCI Camp

Hill, PSP Fern Ridge Barracks, PSP Honesdale Barracks, and PSP

Swiftwater Barracks be dismissed as those entities are not persons subject

to liability under Section 1983. Additionally, it recommends Plaintiff’s Fourth

Amendment claims on behalf of his business against Palmer, Brown,

Jezercak, and Yeager be dismissed since corporations such as his must be

represented by licensed counsel, and that his allegation that those

defendants be charged with kidnapping likewise be dismissed since a

Section 1983 claim is not the appropriate vehicle for pursuing criminal

charges. The Second Report further recommends that the Fourth

Amendment claims against O’Brien and Diehl be dismissed because Plaintiff

does not allege any facts regarding a lack of probable cause. Next, the

Second Report recommends that Plaintiff’s Monell claims against Monroe

County be dismissed since, as with Wayne County, he does not allege that

a policy or custom caused the violations of his constitutional rights. Finally,

the Second Report recommends that Plaintiff’s claims against the

Broadheadsville Post Office be dismissed pursuant to Rule 8 of the Federal

Rules of Civil Procedure for failure to articulate any legal claim. With respect

to the state law harassment and defamation-type claims Plaintiff alleges

against Jacer, the Days Inn Tannersville, and Monroe County, the Second

Report recommends they be dismissed without prejudice since, if the

Reports are adopted, all federal claims will have been dismissed and

retaining supplemental jurisdiction is not appropriate here.

Ultimately, the Reports recommend that the court decline to grant

further leave to amend since to do so would be inequitable and futile insofar

as Plaintiff has already been permitted to file an amended complaint but used

that opportunity to file virtually the same complaint.

As before, Defendant has filed objections to the Second Report;

however, his objections once again do nothing more than repeat the same

incoherent claims from his Complaint and Amended Complaint or express

his disagreement with the Reports’ recitation of the facts alleged in them

and/or his fundamental misunderstanding of the legal principles he cites. The

court has conducted a thorough review of all the pertinent filings and finds

the Reports of Judge Arbuckle to be well-reasoned and well-supported.

Accordingly, the court will adopt both Reports in their entirety as the decision

of the court.

Finally, the court will deny Plaintiff’s motion to strike Wayne

Defendants’ brief in opposition to his objections since Plaintiff’s motion is

meritless and fails to set forth any valid reason to strike Wayne Defendant’s

brief. Instead, Plaintiff’s motion does nothing more than express his dislike

of, and disagreement with, the brief in opposition, which is not an appropriate

basis for a motion to strike.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

(1) Judge Arbuckle’s First and Second Report, (Doc. 87; Doc.

88), are ADOPTED IN THEIR ENTIRETY;

(2) Plaintiff’s objections to the Second Report, (Doc. 89), are

OVERRULED;

(3) Wayne Defendants’ motion to dismiss, (Doc. 70), is

GRANTED and the claims against them are DISMISSED with

prejudice;

(4) Plaintiff’s federal claims against all other defendants are

DISMISSED with prejudice;

(5) The court declines to retain supplemental jurisdiction over

Plaintiff’s remaining state law claims and those claims are

DISMISSED without prejudice;

(6) Plaintiff’s motion to strike Wayne Defendant’s brief in

opposition, (Doc. 90), is DENIED; and

(7) The Clerk of Court is directed to CLOSE THIS CASE.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: February 15, 2021

18-155-04