Keating v. Pittston City et al

Filing 14

OPINION AND ORDER 1. Plaintiffs Motions for Leave to Proceed in Forma Pauperis (Doc. Nos. 2, 7) are GRANTED and the Complaint shall be filed of record by the Clerk of Court. 2. The Report and Recommendation of Magistrate Judge Blewitt (Doc. No. 10) is APPROVED AND ADOPTED. 3. The Complaint (Doc. No. I) is DISMISSED WITH PREJUDICE. 4. All outstanding motions are DENIED as moot.5. The Clerk of Court shall CLOSE this case. Signed by Honorable Joel H. Slomsky on 4/14/11. (jfg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARC KEATING,
Plaintiff,

CIVIL ACTION

v.

NO. 11-411

PITTSTON CITY, et. al.,
Defendants.
OPINION
Slomsky, J.
I.

April 14,201 1

INTRODUCTION
On March 3,201 1, Plaintiff Marc Keating filed this pro se civil rights action against

Defendants Pittston City, Officer Tokar, and Officer Hussein. (Doc. No. 1.) Plaintiff is currently
incarcerated at the Lackawanna County Prison in Scranton, Pennsylvania. The allegations in the
Complaint are unrelated to his conditions of confinement. Plaintiff alleges in the Complaint
constitutionaI claims arising from a confrontation with named Defendants, which occurred in
October 2009 when Plaintiff was on state parole.
Before the Court are two Motions filed by Plaintiff to Proceed in Forma Pauperis (Doc.
Nos. 2,7). When a prisoner files a motion to proceed informapauperis ("IFP"), the Prison
Litigation Reform Act of 1995' (the "PLRA") requires a court to screen the Complaint to
determine whether the complaint is frivolous, malicious, or fails to state a claim on which relief
may be granted. 28 U.S.C.

5 1915(e)(2); see also Roman v. Jeffes, 904 F.2d 192, 195-96 (3d Cir.

1990). If the court determines that the Complaint fails to state a claim, then, "[n]otwithstanding

'

Pub. L. No. 104-1 34, 110 Stat. 1321 (Apr. 26, 1996).

1

the payment of any filing fee, or any portion thereof, that may have been paid, the court shall
dismiss the case." 28 U.S.C. 9 191 5(e)(2).
On March 21,201 1, Chief Magistrate Judge Thomas M. Blewitt, to whom the case was
assigned, issued a Report and Recommendation that the Motions for IFP be granted and the
Complaint be dismissed pursuant to 28 U.S.C. §'1915(e)(2jfor failure to state a claim. (Doc.
No. 10.) On March 30,201 1, Plaintiff filed objections to the Report and Recommendation.
(Doc. No. 12.) The Court must now "make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made. [The
Court] may accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge." 28 U.S.C. $ 636(b)(l).
For reasons that follow, the Court will approve and adopt the Report and
Recommendation (Doc. No. lo), grant Plaintiffs Motions to Proceed IFP (Doc. No. 2, 7), and
dismiss the Complaint with prejudice (Doc. No. 1).
11.

FACTUAL BACKGROUND
In October 2009, Plaintiff was being supervised while on Pennsylvania state parole by

parole agent Frank Coslett.' (Doc. No. 1 7 11.) During his supervision, Plaintiff "perform[ed]
work on a home belonging to his father at 90 Market street, Pittston Pa" (the "residence").
12.) On or about October 2009, when Plaintiff was at his father's residence, agent Coslett went
to the residence and suggested that Plaintiff submit for approval a "home plan," which would
allow Plaintiff to live at his father's home while on supervised release.

(Id.7 13.)

Plaintiff

agreed to submit a home plan and allowed Coslett to enter the residence for the purpose of
Coslett is not a Defendant in this case.
2

"conducting a home plan approval."

(Id.7 14.)

Once inside, Coslett began his inspection.

a7 15.) Plaintiff showed Coslett newly laid

kitchen tile, explaining that he and his cousin Francis Lombardo had laid the tile the previous
evening and that Lombardo was now sleeping on the couch in the living room.

(d) Upon
I.

finishing his inspection of the first floor, Coslett began an inspection of the second floor.

(Id.r(

16.) There, he discovered checks that he suspected were evidence of a crime and confiscated

them for fiu-ther investigation.

(Id.)

With the checks in his possession, Coslett left the residence through the backdoor onto an
attached deck.

(a 17.) Coslett then called the Pittston City Police Department to determine if
7

the checks were evidence of a crime. (Id. TI 18.) Approximately fifteen minutes later, Defendants
Tokar and Hussein, Pittston City Police Officers, arrived at the residence "in a marked patrol
vehicle."

(u 19.)
r(

Coslett told Tokar and Hussein that Plaintiffs cousin, Francis Lombardo,

was inside. (!d,7 2 1.) This fact "[sleemingly aroused" Tokar and Hussein, who entered the
residence through the backdoor in search of Lombardo.
inside.

(Id.71 22-23.)

Coslett followed them

(Id.1 24.)
Plaintiff entered shortly after Coslett and saw Tokar and Hussein with their weapons

drawn, descending the stairs into the basement.

(a 25.) "Through shock and fear" Plaintiff
7

attempted to go up the steps to the second floor to get his cell phone.

a7 26.) However, he

was "accosted" by Tokar, Hussein, and Coslett. (Id.) Thereafter, as Plaintiff alleges in his
Complaint:
Agent Coslett ordered the plaintiff to strip naked in front of defendants Tokar
and Hussein, even though the plaintiff asked them not to be present.

I

I

After strip searching the plaintiff, he was handcuffed behind his back by
agent Coslett while defendnats [sic] Tokar and Hussein, along with agent
Coslett, began to search the bathroom in which the plaintiff was stripped
naked in.
After completely searching the bathroom, the plaintiff was led downstairs by
defendnat [sic] Hussein and ordered to sit in a living room chair still
handcuffed.
(Id, Tlfi 27-29.) After conducting a search of the first and second floor of the residence, Coslett

removed the handcuffs he had placed on Plaintiff, and Tokar and Hussein exited the residence
through the backdoor.

(Id.17 30-32.)

With respect to the culpability of the Pittston City Police Department, Plaintiff asserts
that:
Pittston city police has set out for the last several years on a course of conduct
to harass, cause alarm, annoy, and create fright and fear, enough to cause
significant damages to the plaintiff, Marc Keating, in retaliation to the fact
that his father was Mayor for the [Clity of Pittston.

(Id.7 9.)

Plaintiff hrther avers in the Complaint that the incident was the most recent example

of this retaliation and:
The policies and customs of Pittston city police were not to supervise or
discipline their oficers, or to investigate whether their officers engaged in
wrongful conduct.
There is no file maintained by Pittston city police, that the plaintiff knows of,
which documents lawsuits or improper police conduct.
Pittston city police does not have a complaint procedure for citizens to
complain about the conduct of its police officers. There is no form for the
complaint, there is no review procedure to determine if a complaint is or is
not founded. And there are no rules of any kind which are folIowed with
regards to complaints against Pittston city police officers.
Pittston city police has permitted the structural impediment and other
improper and inadequate supervision and control ofpolice officers within that

department.
Further, no person within the Pittston city police department, including its
Chief or supervisor, has exercised control over the police department in any
meaningfbl fashion.
And, there has been no discipline metted [sic] out to Tokar or Hussein for the
wrongfil conduct which underlies this complaint.

(Id. 1 10,39-43.)
1
The Complaint contains five counts. In Count One, Plaintiff asserts a claim of illegal
entry against Defendants Tokar and Hussein pursuant to 42 U.S.C. 5 1983. (Doc. No. I

17 33-

35.) In Count Two, he asserts a Section 1983 claim of illegal seizure also against Defendants
Tokar and Hussein.

(Id.1 36-37.)
1

In Count Three, it appears that Plaintiff is asserting a Section

1983 municipal liability claim against Defendant City of Pittston pursuant to Monell v. New
York Department of Social Services, 436 U.S. 658 (1978) for failure to train named Defendants.'

(Id.77 38-43.)

In Count Four, Plaintiff alleges that Defendants engaged in a conspiracy in

violation of 42 U.S.C. 5 1985(3).

(Id.fiT[ 44-46.)

In Count Five, Plaintiff asserts a "trespass and

action for neglect to prevent" pursuant to 42 U.S,C. 5 1986. (Id. 77 47-49.)
111.

DISCUSSION
Plaintiff concedes that his claims set forth in Counts Four and Five under 42 U.S.C. 9

1985(3) and 42 U.S.C. 9 1986 "are not arguable and should be dismissed." (Doc. No. 12 at I.)
He objects to Judge Blewitt's Report and Recommendation to the extent that it recommends that

'"[Ilt is well accepted that courts should liberally construe the filings of pro se litigants."
Snvder v. Bazar~ani, 10-3765,20 10 WL 4872197, at *2 (3d Cir. Dec. l , 2 010) (citing
No.
Haines v. Kerner, 404 U.S. 519,520 (1972)). The Court liberally construes the Complaint here.

Counts One, Two, Three, and Five4 should be dismissed with prejudice and that Plaintiff should
not be granted leave to amend the Complaint pursuant to the htility exception. (Id.) The Court
will now "make a de novo determination of those portions of the report . . . to which objection is
made." 28 U.S.C. $ 636(b)(1). For reasons that follow, the Court agrees with the conclusions
contained in the portions of Judge Blewitt's Report and Recommendation to which Plaintiff
objects. Thus, the Court will approve and adopt the Report':hd Recommendation.

A.

Plaintiffs First Objection: Illegal Seizure (Count Two)

Plaintiff asserts that he has stated a claim for illegal seizure under the Fourth
Amendment. He asserts that he was "seized" at the moment Tokar, Hussein, and Coslett
accosted him because it rendered him unable to "freely move about his own house." (Doc. No.
12 at 5.)
To state a claim for false arrest under the Fourth Amendment, Plaintiff must allege that he
was arrested without probable cause. Pollock v. The Citv of Philadelphia, No. 10-2041,2010
WL 5078003, at *3 (3d Cir. Dec. 14,2010). A Fourth Amendment "arrest" may occur even if a
plaintiff was not formally arrested, so long as the plaintiff was "seized" within the meaning of the
163
Fourth Amendment. See. e.g., Torres v. McLau~hlin, F.3d 169, 174 (3d Cir. 1998) (citing
Tern v. Ohio, 392 U.S. I, 19 (1968)). "A person is seized for Fourth Amendment purposes only
if he is detained by means intentionally applied to terminate his freedom of movement." Bern v.
Countv of Allegheny, 219 F.3d 261,269 (3d Cir. 2000). Further, to establish section 1983
liability, a plaintiff must allege that a defendant was personally involved in the constitutional
Although Plaintiff concedes Count Five as stated should be dismissed because it is not
arguable under 42 U.S.C. 5 1986, he asserts that he should be granted leave to amend Count Five
to add a state law tort claim, as discussed infra.

violation. Innis v. Wilson, 334 Fed. App'x 454,457 (3d Cir. 2009); see also Ashcroft v. Iabal,
129 S. Ct. 1937, 1948 (2009) ("[Elach Government official, his or her title notwithstanding, is
only liable for his or her own misconduct.").
Here, Plaintiff alleges he was handcuffed and strip searched by Coslett. Although this act
by Coslett may have been intentional in order to terminate the freedom of movement of Plaintiff,
it was not done by either Defendant Tokar or Defendant Hussein. Section 1983 liability may only
be based on a defendant's personal involvement in the conduct which amounts to a constitutional
violation. Innis v. Wilson, 334 Fed. App'x at 457. Plaintiff has not alleged that Tokar and
Hussein were personally involved in his arrest. Therefore, he has failed to establish that either
Tokar or Hussein arrested him within the meaning of the Fourth Amendment, a prerequisite to
Section 1983 liability in the context of this case. Accordingly, Plaintiff has failed to state a claim
that amounts to an illegal seizure in violation of the Fourth Amendment. Thus, the Court
approves and adopts the finding that Count Two should be dismissed for failure to state a claim.
B.

Plaintiffs Second Objection: Illegal Entry (Count One)

Plaintiff acknowledges that his failure to allege that he "resided" in the home that was
searched "surely flawed the [I complaint," with respect to his claim for illegal entry. (Doc. No.
12 at 8.) He therefore agrees with Judge Blewitt's conclusion that the Complaint fails to state a
claim for illegal entry because it fails to.allege that Plaintiff had a legitimate expectation of
privacy in the invaded place-his father's residence. Plaintiff requests, however, that he be
granted leave to amend the Complaint to allege that he "had permission from his father to reside"
there. This amendment would be futile for two reasons. See Gravson v. Mavview State Hosv.,
293 F.3d 103, 108 (3d Cir. 2002) (a court is required to allow a p r o se plaintiff leave to amend
7

before dismissing the complaint for failure to state a claim unless an amendment would be
futile).
First, the addition of the factual averment that Plaintiff had permission to reside at his
father's home would not overcome the insufficiency of facts to support the Fourth Amendment
constitutional claim relating to illegal entry. Plaintiff still fails to allege that he actually resided
in his father's home. The addition of a factual averment that he only had permission to reside in
the home does not establish that Plaintiff actually resided there. Consequently, he had no
reasonable expectation of privacy in the home and no standing to raise a Fourth Amendment
claim.
Further, even if Plaintiff were to amend the Complaint to state that he actually resided in
his father's home, this allegation would be inconsistent with the factual allegations already
contained in the Complaint. The Complaint alleges that, while on supervised release, Plaintiff
"perform[ed] work on a home belonging to his father at 90 Market street, Pittston Pa." (Doc. No.

1 7 12.) Further, it alleges that the reason why Plaintiff allowed Coslett to enter the home on the
date of the incident was to conduct a home plan approval. (Id. 7 14.) A home plan approval
would allow Plaintiff to live at his father's residence while on supervised release. The fact that
Plaintiff had not been approved to reside there, but was actively seeking approval, belies any
claim that he resided there. The allegations show at best that Plaintiff wished to reside there.
Therefore, an amendment alleging that Plaintiff actually resided at the home would be
inconsistent and futile.

C.

Plaintiffs Third Objection: Monell Claim (Count Three)

Plaintiff objects to the finding of the Report and Recommendation that he has failed to
state a claim for municipal liability. He asserts that he has stated a claim because he alleges that:
Pittston city does not have any kind of policy providing guidance to its
officers about how to conduct a legal search, initiate a proper Teny stop, or
obtain a warrant or how to carry out a warrantless entry that may or may not
be justified. If a citizen were to make a complaint about a Pittston city police
officer, there is not written procedure in place.
(Doc. No. 12 at 13.)
A Section 1983 claim cannot be premised on a theory of respondeat superior. To state a

claim against a municipality or corporate entity, a plaintiff must do more than allege the
municipality or corporation employed a tortfeasor. Bd. of County Comm'rs v. Brown, 520 U.S.
397,403 (1997) (citing Monell, 436 U.S. at 694). A plaintiff must allege that a municipal or
corporate policy or custom caused his injury.

Id. Further, to survive a motion to dismiss, a

plaintiff must allege that the policy or custom was the "moving force" behind the constitutional
.

.I111

violation. Gravson v. Mavview State Hosv., 293 F.3d 103, 107 (3d Cir.2002) (citing Bd. of
Cnty. Comm'rs of Brvan Cnty.. Okla. v. Brown, 520 U.S. 397,404 (1997)).
[Wlhere municipal liability is predicated upon a "failure to train," the failure
must constitute "deliberate indifference" to the plaintiffs constitutional
rights. Woloszvn v. Cntv. of Lawrence, 396 F.3d 314, 324 (3d Cir.2005)
(citing Citv of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1 989)). Failure to train "can ordinarily be considered deliberate
indifference only where the failure has caused a pattern of violations." Berg
v. Cntv. of Alle~henv, F.3d 261,276 (3d Cir.2000) (citing Brvan Cntv.
219
v. Brown, 520 U.S. 397,408 (1997)).
Bolick v. Pennsylvania, No. 10-1461,2011 WL 941394, at *7 (E.D. Pa. Mar. 16,2011).

In the instant case, Plaintiff has failed to allege facts that support a claim of municipal
liability. The factual allegations contained in the Complaint do not establish that the failure of
Pittston City to train police in the manner suggested constituted "deliberate indifference."
Plaintiff does not allege facts which show a pattern of violations and does not allege that the
policy or custom of Pittston City was the "moving force" behind the violation of his Fourth
Amendment rights. Therefore, Plaintiff has failed to state a claim for municipal liability.
Accordingly, the Court will approve and adopt the finding that Count Three should be dismissed
for failure to state a claim.
D.

Plaintiff's Fourth Objection: Trespass and Action for Neglect to Prevent
(Count V)

Plaintiff concedes that his "trespass and action for neglect to prevent" is not arguable
pursuant to 42 U.S.C.

1986, but seeks to amend the Complaint to add a claim of trespass under

Pennsylvania law. Such an amendment would be htile.
"The Political Subdivision Tort Claims Act immunizes municipalities from liability for
No.
all state law tort claims." Paeliaccetti v. City of Phildel~hia, 09- 1106, 2010 WL 3222153, at
*8 (E.D. Pa. Aug. 13,2010) (citing 42 Pa. C.S.

8541, et seq.). The Act provides:

Except as otherwise provided in this subchapter, no Iocal agency shall be
liable for any damages on account of any injury to a person or property
caused by any act of the local agency or an employee thereof or any other
person.
While the Act provides eight specific exceptions to the grant of immunity, none are applicable

here.'

42 Pa. C.S. 5 8542(b).

'.

Where a plaintiff sues a municidal officer in his official capacity, "the real party in
interest . . . is the governmental entity and not the named official." Hafer v. Melo, 502 U.S. 21,
25 (199 1). Therefore, a suit against a municipal officer in his official capacity is treated a suit
against the municipality itself. In such cases, the Act immunizes the municipal officer from suit.
Here, Plaintiff sues Defendants Tokar and Hussein in their official capacity. (Doc. No. 1

fifi 6-7.) If the Court granted Plaintiff leave to amend the Complaint to add a claim for trespass
against Defendants Tokar and Hussein in their official capacity, this claim would be barred by
the Political Subdivision Tort Claims Act. Thus, the Court will not grant Plaintiff leave to
amend the Complaint because an amendment would be futile.

IV.

CONCLUSION
For the foregoing reasons, the Court will approve and adopt the Report and

Recommendation of Magistrate Judge Thomas M. Blewitt (Doc. No. lo), grant Plaintiffs
Motions to Proceed IFP (Doc. No. 2, 7 ,and dismiss the Complaint with prejudice (Doc. No. 1).
)
An appropriate Order follows.

' The eight exceptions are: (1) vehicle liability; (2) care, custody and control of personal
property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service
facilities; (6) streets; (7) sidewalks; and (8) care, custody and control of animals.
42 Pa. C.S.
5 8542(b).

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

MARC KEATING,
Plaintiff,

CIVIL ACTION
NO. 11-411

PITTSTON CITY, et. al.,
Defendants.

ORDER
AND NOW, this 14th day of April 2011, upon consideration of the Complaint (Doc. No.
I), Plaintiff Marc Keating's Motions for Leave to Proceed in Forma Pauperis (Doc. Nos. 2,7),
the Report and Recommendation of United States Magistrate Judge Thomas M. Blewitt (Doc.
No. 1 O, and Plaintiffs Objections to the Report and Recommendations (Doc. No. 12), and for
)
the reasons provided in this Court's Opinion filed this date, it is ORDERED that:
1.

Plaintiffs Motions for Leave to Proceed in Forma Pauperis (Doc. Nos. 2 , 7) are

GRANTED and the Complaint shall be filed of record by the Clerk of Court.
2.

The Report and Recommendation of Magistrate Judge Blewitt (Doc. No. 10) is

APPROVED AND ADOPTED.
3.

The Complaint (Doc. No. I ) is DISMISSED WITH PREJUDICE.

4.

All outstanding motions are DENIED as moot.

5.

The Clerk of Court shall CLOSE this case.
BY THE COURT: