# EAVES

> District Court, W.D. Pennsylvania · February 1, 2018

URL: https://www.frixlaw.com/law-library/cases/11341592

## Case

- **Full name:** Anthony Eaves v. City of McKeesport Police Dept., Mr. Joseph Osinski, and Jennifer Richards
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** February 1, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11341592

## How later opinions describe it (automated extraction)

- applying Rule 12(b)(6) standard to claim dismissed under 28 U.S.C. § 1915(e)(2)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTHONY EAVES, )
)
Plaintiff, ) Civil Action No. 18-52
) Judge Nora Barry Fischer/
v. ) Chief Magistrate Judge Maureen P. Kelly
)
CITY OF MCKEESPORT POLICE DEPT., )
MR. JOSEPH OSINSKI, and JENNIFER )
RICHARDS, )
)
Defendants. )

REPORT AND RECOMMENDATION

I. RECOMMENDATION
It is respectfully recommended that the Complaint, ECF No. 3, be dismissed pre-service
pursuant to 28 U.S.C. § 1915(e) for failure to state a claim upon which relief can be granted and/
or as frivolous.
II. REPORT
At the time of filing this action, Anthony Eaves (“Plaintiff”) was apparently no longer a
prisoner, as Plaintiff’s address on the docket is a private property. Plaintiff is proceeding pro se
and has been granted in forma pauperis (“IFP”) status, ECF No. 2, in order to pursue a civil
rights complaint. ECF No. 3. Because the instant Complaint is repetitious of the Amended
Complaint and the proposed Third Amended Complaint in Eaves v. Sholek, No. 17-cv-886
(W.D. Pa. ECF Nos. 19 & 26-1) (the “Previous Case”), the instant Complaint in this case is
frivolous. In the alternative, because the Court dismissed the Previous Case for failure to state a
claim upon which relief could be granted, and the reasons given in the Previous Case apply
equally to the instant Complaint, the instant Complaint should also be dismissed for the same
reasons as given for dismissal in the Previous Case.
A. STANDARD OF REVIEW
Because Plaintiff has been granted IFP status, the screening provisions of 28 U.S.C. §
1915(e) apply. 28 U.S.C. § 1915(e) (“[n]otwithstanding any filing fee, or any portion thereof,

that may have been paid [by a person granted IFP status], the court shall dismiss the case at any
time if the court determines that – (A) the allegation of poverty is untrue; or (B) the action or
appeal– (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.”).
In performing the Court’s mandated function of sua sponte review of complaints under
28 U.S.C. § 1915(e), to determine if they fail to state a claim upon which relief can be granted, a
federal district court applies the same standard applied to motions to dismiss under Federal Rule
of Civil Procedure 12(b)(6). See, e.g., Brodzki v. Tribune Co., 481 F. App’x 705 (3d Cir. 2012)
(applying Rule 12(b)(6) standard to claim dismissed under 28 U.S.C. § 1915(e)(2)).

As the United States Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), a complaint may properly be dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) if
it does not allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570
(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). Under this standard, the court must, as a general rule, accept as true all factual
allegations of the complaint and all reasonable inferences must be viewed in the light most
favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir.
1985). In addition to the complaint, courts may consider matters of public record and other
matters of which a court may take judicial notice, court orders, and exhibits attached to the
complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994). Moreover, under the
12(b)(6) standard, a “court need not . . . accept as true allegations that contradict matters properly
subject to judicial notice or by exhibit.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001), amended by, 275 F.3d 1187 (9th Cir. 2001). The court need not accept inferences

drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See
California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004)
(citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the
court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Furthermore, because Plaintiff is pro se, courts accord an even more liberal reading of the
instant Complaint, employing less stringent standards when considering pro se pleadings than
when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519 (1972).
B. PROCEDURAL HISTORY

Plaintiff’s instant Complaint was filed on January 18, 2018. ECF No. 3. Plaintiff utilized
a form complaint for pro se filers. In the instant Complaint, Plaintiff names three defendants: 1)
the City of McKeesport; 2) Officer Joseph Osinski; and 3) Jennifer Richards. In the instant
Complaint, Plaintiff alleges that Defendant Richards, the alleged victim of Plaintiff’s sexual
assault told one story on January 16, 2016 to Officer Osinski concerning the sequence of events
concerning the alleged sexual assault. Plaintiff further alleges, at the preliminary hearing on
January 25, 2016, however, Defendant Richards testified to a different sequence of events.
Plaintiff complains that Officer Osinski obtained an arrest warrant from a state
magisterial district judge before forensic analysis of the evidence was completed. Plaintiff also
complains that Officer Osinski took “an excessive, surplus and duplicate DNA sample from”
Plaintiff given that while Plaintiff was incarcerated in the Pennsylvania Department of
Corrections, he had given a DNA sample in July 2008. ECF No. 3 at 7. Plaintiff also alleges
that his arrest and prosecution were based on racial discrimination because he is “African-
American and J. Richards is caucasian and J. Osinski is too.” Id. at 8.

When directed to specifically identify the federal statutes or provisions of the United
States Constitution that are at issue, Plaintiff responded as follows:
The New Federal Rules of Evidence 804(b)(3) Declarations Against Interest
applies to statements against penal interest introduced by the government as well
as by the defendant in criminal cases. Also Federal Rules of Evidence > Article
IV. Relevance and It’s Limits > Rule 404. Character Evidence; Crimes or Other
Acts, Evidence of a Person’s character or of a crime is not [sic] admissible for
proving motive, intent, plan, knowledge, identity, absence of mistake, opportunity
or lack of accident.

ECF No. 3 at 4.1

1 We note that Plaintiff mischaracterizes Rule 404 which we quote in part as follows:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to
prove a person's character in order to show that on a particular occasion the
person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On
request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such
evidence that the prosecutor intends to offer at trial; and
(B) do so before trial--or during trial if the court, for good cause,
excuses lack of pretrial notice.

Fed. R. Evid. 404. We also note that the Federal Rules of Evidence do not apply in state court
proceedings.
C. DISCUSSION
1. Repetitious Cases Are Frivolous.
The instant Complaint is nearly identical to both the Amended Complaint and the
proposed Third Amended Complaint in the Previous Case. Previous Case (ECF No. 26-1, filed
11/15/2017).

The procedural history of the Previous Case is as follows.
The original Complaint in the Previous Case named seven defendants: the Allegheny
County District Attorney’s Office; Allegheny County Jail; Monica Cwynar; Keefe Commissary;
Presbyterian University Hospital; Mr. Shalek; and Mr. Frank Walker. The original Complaint
concerned actions taken in or about June, 2008. Plaintiff acknowledged the statute of limitations
problem with his original Complaint but contended that he was “suffering from hidden injury,
which tolls the statute of limitations from 2 years to 10 years, in which I have to file a
complaint.” Previous Case (ECF No. 3, at 3, ¶ IV.C; id. at 5).
On August 1, 2017, Plaintiff filed a Motion to Stay the Complaint, albeit without

explanation for the necessity of the stay. Previous Case (ECF No. 6). The Court granted the stay
but required Plaintiff to file a Notice of Intent as to how he wished to proceed in this case, which
was to be returned to the Court no later than August 23, 2017. Id. (ECF No. 7). Plaintiff failed
to return the Notice of Intent by the due date. Accordingly, on September 6, 2017, the Court
issued an Order to Show Cause why the case should not be dismissed due to Plaintiff’s failure to
prosecute. Id. (ECF No. 11). The Order to Show Cause was sent to Plaintiff at his address of
record which was Torrance State Hospital. On September 21, 2017, the Order to Show Cause
was returned to sender as not deliverable. Id. (ECF No. 12). On September 29, 2017, Plaintiff
filed a Motion to Reopen the case. Id. (ECF No. 13). That Motion to Reopen the case indicated
that Plaintiff’s address had apparently changed as the address was no longer at Torrance State
Hospital. However, Plaintiff never filed a formal notice of change of address with the Court. On
October 5, 2017, the Court granted the Motion to Reopen the case and ordered Plaintiff to file
one consolidated amended complaint no later than October 31, 2017. Id. (ECF No. 14). On
October 24, 2017, Plaintiff filed a Motion to Amend the Complaint, ECF No. 15, and a Motion

to Add a New Defendant. Id. (ECF No. 16). On October 25, 2017, the Court denied the Motion
to Amend and the Motion to Add a New Defendant as moot in light of the Court’s October 5,
2017 Order directing Plaintiff to file one consolidated amended complaint no later than October
31, 2017. Id. (ECF No. 18). Furthermore, the Court reminded Plaintiff that he had until October
31, 2017 to file his one consolidated amended complaint. On October 31, 2017, Plaintiff filed his
Amended Complaint that named only one defendant, i.e., Jennifer Richards. Id. (ECF No. 19).
That Amended Complaint in the Previous Case is attached hereto as Appendix 1.
In the Amended Complaint from the Previous Case, Plaintiff made nearly identical
allegations against Defendant Richards as he does in the instant Complaint. Appendix 1 at 4

(recounting that on January 16, 2016, Defendant Richards alleged one sequence of events in the
assault and that on January 25, 2016, at the preliminary hearing, she alleged a different sequence
of events in the assault). In the Amended Complaint from the Previous Case, when directed to
specifically identify the federal statutes or provision of the United States Constitution that are at
issue, Plaintiff responded by citing to the New Federal Rules of Evidence 804(b)(3) Declarations
Against Interest, and the Federal Rules of Evidence Rule 404, which is exactly the same basis
that he relies upon in the instant Complaint.
In the Previous Case, the undersigned issued a Report and Recommendation on
November 6, 2017, recommending that the Amended Complaint be dismissed pre-service for
failure to state a claim. The Report is attached hereto as Appendix 2. In response to the Report,
Plaintiff filed several motions as well as Objections to the Report, Previous Case (ECF No. 25),
and a Motion to be permitted to file a Third Amended Complaint, with the proposed Third
Amended Complaint attached. Id. (ECF No. 26). A copy of the Third Proposed Amended
Complaint is attached hereto as Appendix 3. The Honorable Nora Barry Fischer, issued an

Order on November 16, 2017 (the “November 16, 2017 Order”) adopting the Report and
Recommendation and overruled the objections and denied Plaintiff leave to file the Proposed
Third Amended Complaint as futile because the proposed Third Amended Complaint failed to
state a claim upon which relief can be granted. Previous Case (ECF No. 28). A copy of the
November 16, 2017 Order is attached hereto as Appendix 4.
Comparing the Third Proposed Amended Complaint to the instant Complaint reveals that
the same defendants are named in both complaints and the same alleged violations of federal law
are made, namely, the Federal Rules of Evidence and the same claims and allegations are made
in both complaints, the gravamen of which are that Defendants Osinski and the McKeesport

Police Department falsely arrested Plaintiff and falsely prosecuted him and such was
accomplished at least in part due to racial animus against Plaintiff. Appendix 3 at 4 (Defendants
Osinski and the McKeesport Police Department “asked that Plaintiff be charged with Rape,
Sexual Assault, and Aggravated Indecent Assault prior to the conclusions of the DNA forensic
evidence analyzed by scientist Elizabeth Wasbom…. Joseph Osinski used Plaintiff’s past
criminal history as a basis to obtain a search warrant. … Plaintiff claims his incarceration
happened because of a false arrest.… [And] plaintiff was discriminated against because he is
African-American and J. Osinski and J. Richards are Caucasian American.”).
A comparison of both the Amended Complaint in the Previous Case and the Proposed
Third Amended Complaint with the instant Complaint also reveals that the instant Complaint is
clearly repetitious of the Amended Complaint in the Previous Case and the Proposed Third
Amended Complaint in the Previous Case. As such, the instant case is repetitious, and,
therefore, frivolous. "Repetitious litigation of virtually identical causes of action may be

dismissed under § 1915 as frivolous or malicious." McWilliams v. Colorado, 121 F.3d 573, 574
(10th Cir. 1997) (quotation marks and alteration omitted). See also Neitzke v. Williams, 490 U.S.
319, 324 (1989) (“Congress recognized, however, that a litigant whose filing fees and court costs
are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.”). Therefore, pursuant to 28 U.S.C. §
1915(e)(2)(B)(i), the instant Complaint should be dismissed prior to being served as frivolous.
2. The Complaint fails to state a claim for the same reasons given in the
Previous Case.

In the alternative, the instant Complaint fails to state a claim for the same reasons with
respect to Defendant Richards that the Report and Recommendation in the Previous Case,
Appendix 2, relied upon and for the same reasons with respect to Defendants Osinski and the
McKeesport Police Department that the November 16, 2017 Order, Appendix 4, filed by Judge
Fischer relied upon in the Previous Case to deny further amendment as futile. We incorporate by
reference the reasoning contained therein as if set forth fully herein and also recommend
dismissal of the instant Complaint for failure to state a claim upon which relief can be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
III. CONCLUSION
Accordingly, for the foregoing reasons, the instant Complaint should be dismissed for
failure to state a claim upon which relief can be granted. Amendment would be futile.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule
72.D.2, the parties are permitted to file written objections in accordance with the schedule

established in the docket entry reflecting the filing of this Report and Recommendation. Failure
to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193
n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections
within fourteen (14) days thereafter in accordance with Local Civil Rule 72. D.2.

Date: February 1, 2018 Respectfully submitted:

/s/Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE
cc: Honorable Nora Barry Fischer
United States District Judge

ANTHONY EAVES
903 Watson Street
Pittsburgh, PA 15219

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11341592. Public record. Not legal advice.