Robertson

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KASHIF M. ROBERTSON, : Civil No. 1:21-CV-00222

:

Plaintiff, :

:

v. :

:

CHAD A. MCGOWAN, et al., :

:

Defendants. : Judge Jennifer P. Wilson

ORDER

Before the court is the report and recommendation of Magistrate Judge

Martin C. Carlson recommending that the motions for summary judgment filed by

Defendants be denied. (Doc. 165.) Defendants timely filed objections to the

report and recommendation, which Plaintiff did not oppose. (Docs. 166, 167, 168,

169.) For the reasons that follow, the court adopts the report and recommendation

in part, denies Defendants’ motions for summary judgment, and dismisses the

failure to intervene claim against Defendants Bruce Cutter and Daniel Kinsinger.

STANDARDS OF REVIEW

A. Review of a Magistrate Judge’s report and recommendation

When a party specifically objects to a magistrate judge’s report and

recommendation, the district court is required to conduct a de novo review of the

contested portions of the report and recommendation. 28 U.S.C. § 636(b)(1); Fed.

R. Civ. P. 72(b)(3); Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989).

The district court may accept, reject, or modify the magistrate judge’s report and

recommendation in whole or in part. 28 U.S.C. § 636(b)(1). The district court may

also receive further evidence or recommit the matter to the magistrate judge with

further instructions. Id. “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.”

Weidman v. Colvin, 164 F. Supp. 3d 650, 653 (M.D. Pa. 2015) (citing Rieder v.

Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000)).

When a party raises only general objections to a report and recommendation,

a district court is not required to conduct a de novo review of the report and

recommendation. Goney v. Clark, 749 F.2d 5, 6–7 (3d Cir. 1984). “To obtain de

novo determination of a magistrate’s findings by a district court, 28 U.S.C.

§ 636(b)(1) requires both timely and specific objections to the report.” Id. at 6.

Thus, when reviewing general objections to a report and recommendation, the

court’s review is limited “to ascertaining whether there is ‘clear error’ or ‘manifest

injustice’” on the face of the record. Boomer v. Lewis, No. 3:06-CV-00850, 2009

WL 2900778, at *1 (M.D. Pa. Sept. 9, 2009).

For the uncontested portions of the report and recommendation, the court

affords “reasoned consideration” before adopting it as the decision of this court.

City of Long Branch, 866 F.3d at 100 (quoting Henderson, 812 F.2d at 878).

B. Motion for summary judgment

A court may grant a motion for summary judgment when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is material if resolution of

the dispute “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “A

dispute is genuine if a reasonable trier-of-fact could find in favor of the

nonmovant’ and ‘material if it could affect the outcome of the case.” Lichtenstein

v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).

In reviewing a motion for summary judgment, the court must view the facts

in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288

(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the

court’s role in reviewing the facts of the case is “to determine whether there is a

genuine issue for trial.” Id.

The party moving for summary judgment “bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then

oppose the motion, and in doing so “‘may not rest upon the mere allegations or

denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that

there is a genuine issue for trial. Bare assertions, conclusory allegations, or

suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.

Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).

Summary judgment is appropriate where the non-moving party “fails to

make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support

of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION1

A. The court adopts Sections I, II, and III(A), (B), and part of (C) of the

report and recommendation.

In Sections I, II, and III(A) and (B) of the report and recommendation, Judge

Carlson details the factual allegations and procedural history of this case as well as

the standard of review for a motion for summary judgment and guiding principles

for evaluating qualified immunity. (Doc. 165, pp. 1–15.)2 In Section III(C), Judge

Carlson analyzes multiple claims, including an excessive force claim against

Defendants Bruce Cutter and Daniel Kinsinger, both Dauphin County Adult

Probation and Parole Officers (“County Defendants”). No party has filed

objections to these portions of the report and recommendation. Following an

independent review of Section I, II, and III(A), (B), and part of (C), and affording

“reasoned consideration” to these uncontested portions of the report, EEOC v. City

of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (quoting Henderson, 812 F.2d at

879), to “satisfy [the court] that there is no clear error on the face of the record,”

Fed. R. Civ. P. 72(b), advisory committee notes, the court finds that Judge

Carlson’s analysis is well-reasoned and fully supported by the record and

1 Because the court is writing for the benefit of the parties, only the necessary information is

included in this order. For a more fulsome discussion of the facts and issues in this case, the

court refers to the report and recommendation. (Doc. 165.)

2 For ease of reference, the court uses the page numbers from the CM/ECF header.

applicable law. Therefore, the court adopts Sections I, II, III(A), (B), and part of

(C) of the report and recommendation.

B. The court adopts, in part, Section III(C) of the report and

recommendation.

1. Defendant Chad A. McGowan’s objections

Defendant Chad McGowan (“McGowan”) purports to set forth specific

objections to the report and recommendation, arguing that Judge Carlson erred in

denying summary judgment in McGowan’s favor on the excessive force and

failure to train claims. (Doc. 169, pp. 7–13.) He also argues that the report

erroneously denies McGowan qualified immunity. (Id. at 13–17.) Lastly, he

submits that Judge Carlson wrongly denied his renewed motion for summary

judgment for failure to respond or prosecute. (Id. at 17–21.)

The court carefully reviewed these objections and, although they are titled as

specific objections, the court concludes that they are general. These objections

reargue the issues already presented to Judge Carlson and simply express

disagreement with his conclusions. The objections do not point to a specific error

that was made and the court finds none. Because the court finds no clear error or

manifest injustice, the court overrules McGowan’s objections, adopts the

recommendation as to Plaintiff’s claims against McGowan, and denies

McGowan’s motion for summary judgment.

2. Defendants Bruce Cutter and Daniel Kinsinger’s objection

Defendants Bruce Cutter and Daniel Kinsinger, both Dauphin County Adult

Probation and Parole Officers, (“County Defendants”) argue that the report and

recommendation errs by denying summary judgment in their favor as to Plaintiff’s

failure to intervene claim. (Docs. 166, 167.) Many of the arguments therein were

raised for the first time in the County Defendants’ objection, thus, the court could

find that these arguments are waived. See Kelly v. Wells Fargo Bank, N.A., No.

13-cv-2298, 2015 WL 1333264, at *9 (M.D. Pa. Mar. 25, 2015) (collecting cases

and finding that plaintiffs waived their argument by failing to raise it before the

magistrate judge). Notwithstanding this reality, the court declines to adopt the

recommendation as to the failure to intervene claim for the County Defendants.

That is because, in his brief in opposition to the County Defendants’ motion for

summary judgment, Plaintiff states: “Importantly, Plaintiff has not asserted a

failure to intervene claim against County Defendants, contrarily, as this claim was

strictly directed towards Defendant McGowan . . . . a failure to intervene was not

raised against County Defendants which may have not been clearly established in

the Amended Complaint.” (Doc. 149, p. 17.) Accordingly, the court overrules the

County Defendants’ objections, declines to adopt the report and recommendation

as to the failure to intervene claim against the County Defendants, denies the

County Defendants’ motion for summary judgment, and dismisses the failure to

intervene claim with prejudice against the County Defendants.

CONCLUSION

For the reasons stated herein, IT IS ORDERED AS FOLLOWS:

1) Defendants’ objections, 166 & 168, are OVERRULED.

2) The report and recommendation, Doc. 165, is ADOPTED IN PART.

Specifically, the court adopts all aspects of the report and

recommendation except with respect to the failure to intervene claim

against the County Defendants.

3) Defendants’ motions for summary judgment, Docs. 132, 135, and 146,

are DENIED.

4) Plaintiff’s failure to intervene claim against the County Defendants is

DISMISSED WITH PREJUDICE.

5) A telephone conference is scheduled for April 22, 2026, at 1:30 p.m.

to discuss the potential for settlement or a trial date. The parties shall

call-in to the conference call number 570-218-8447 using the

conference ID 660 227 256#. The court shall make arrangements with

SCI-Benner to connect Plaintiff, who is self-represented.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Dated: March 19, 2026