Pino v. Carey et al
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 4/28/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN A. PINO,
: CIVIL ACTION NO. 3:15-1172
MICHAEL CAREY, et al.,
Pending before the court are the reports of Magistrate Judge Carlson,
(Doc. 59, Doc. 60), which recommend that defendants Allar and Kyper’s
motion for summary judgment, (Doc. 45), be granted and plaintiff’s motion for
leave to file a second amended complaint, (Doc. 58), be denied. All of the
other defendants in this case, except for defendant Carey, have previously
By way of relevant background, on June 16, 2015, the plaintiff filed, pro
se, 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
leading to his arrest, conviction and current term of imprisonment at SCIHoutzdale. (Doc. 1). The plaintiff also filed a motion seeking leave to proceed
in forma pauperis along with his complaint. (Doc. 2). After screening the
plaintiff’s complaint pursuant to 28 U.S.C. §1915(e)(2), Judge Carlson
concluded that it failed to state a claim upon which relief can be granted with
respect to six of the eight named defendants. By report dated June 23, 2015,
Judge Carlson recommended that plaintiff’s motion to proceed in forma
pauperis be granted and, that his complaint be dismissed without prejudice
with respect to defendants Hand, Alexander, Letcavage, Aponick, Kyper and
Hamilton. (Doc. 8). No objections were filed to Judge Carlson’s report.
However, the plaintiff filed an amended complaint on July 9, 2015. (Doc. 9).
On December 4, 2015, the court adopted Judge Carlson’s report in its
entirety and recommitted the case to Judge Carlson for further proceedings
regarding plaintiff’s amended complaint. (Doc. 11, Doc. 12).
On December 9, 2015, Judge Carlson screened plaintiff’s amended
complaint and issued another report, (Doc. 13), and recommended that the
amended complaint, (Doc. 9), be dismissed with prejudice with respect
defendants Hand, Alexander, Letcavage and Aponick for failure to state a
cognizable claim against them. No objections were filed to Judge Carlson’s
report. On January 11, 2016, the court adopted the report in its entirety and
dismissed plaintiff’s amended complaint with prejudice with respect to
defendants Hand, Alexander, Letcavage and Aponick. The court also
directed that the amended complaint be served upon the remaining
defendants Carey, Allar and Kyper. (Doc. 14, Doc. 15). Since Hamilton, who
was previously dismissed without prejudice, was not named as a defendant
in plaintiff’s amended complaint, he was terminated as a party in this case.
The case was then recommitted to Judge Carlson for further proceedings as
to the remaining defendants.
Defendant Carey filed his answer to plaintiff’s amended complaint on
March 4, 2016, (Doc. 25), and defendants Allar and Kyper filed their answer
on April 6, 2016, (Doc. 26). Defendants also raised various affirmative
defenses in their answers.
Discovery then ensued, including the deposition of plaintiff.
On October 13, 2016, defendant Carey filed a motion for summary
judgment. (Doc. 41). On October 24, 2016, defendants Allar and Kyper jointly
filed a motion for summary judgment. (Doc. 45). Both motions were briefed
by the parties, statements of material facts were filed and exhibits were
On December 16, 2016, Judge Carlson issued his report and
recommended that defendants Allar and Kyper’s motion for summary
judgment be granted. (Doc. 59). On December 19, 2016, Judge Carlson
issued a report and recommended that plaintiff’s December 12, 2016
proposed amended pleading, construed as a motion for leave to file a second
amended complaint, (Doc. 58), be denied. (Doc. 60). Plaintiff filed objections
to Judge Carlson’s reports with attachments. (Doc. 61, Doc. 62, Doc. 63).
Plaintiff’s Doc. 62 filing appears to be both an objection to Judge Carlson’s
Doc. 59 report as well as his brief in opposition to defendant Carey’s
summary judgment motion.
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)).
Where no objection is made to a report and recommendation, 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 (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); Local Rule 72.31.
In two of his filings, (Doc. 62, Doc. 63), plaintiff does not directly
address Judge Carlson’s pending reports and he does not indicate his
specific objections to the reports. Rather, in both documents, plaintiff
requests that he be allowed to proceed with respect to his original complaint
as against defendants Hand, Letcavage and Aponick. Plaintiff contends that
when he filed his original complaint he did not have any evidence against
these three PA state trooper defendants. But he states that when he received
his transcripts from his June 2 and 3, 2014 criminal trial he saw that these
defendants admitted they used physical force on him to remove him from his
vehicle after defendant Carey shot him twice with his gun and after defendant
Allar shot him with his taser gun at the time he was taken into custody on
August 26, 2013. Plaintiff states that the trial transcripts reveal after Allar
shot him with his taser, Aponick and Letcavage “used unnecessary physical
force” and, that all three defendants removed him from his vehicle and took
him to the ground. Plaintiff also states that when he was on the ground, Hand
“dry stunned” him on his back with his taser cartridge and shot him with
electrical pulse. Plaintiff further states that the transcripts show Letcavage
also shot him with a taser gun. (Doc. 62).
As indicated, plaintiff’s amended complaint, (Doc. 9), was previously
dismissed with prejudice with respect defendants Hand, Letcavage and
Aponick. (Doc. 11, Doc. 12). In fact, the dismissal of these three defendants
with prejudice did not come until after Judge Carlson’s initial report in which
he recommended that plaintiff’s original complaint be dismissed without
prejudice with respect to several defendants, including Hand, Letcavage and
Aponick. As such, plaintiff was given an opportunity to amend his pleading
with respect to these three defendants and nonetheless, he still failed to state
a cognizable claim against them.
In any event, since plaintiff was present at is criminal trial, he certainly
was aware of the testimonies of defendants Hand, Letcavage and Aponick,
as well as the testimonies of all the Commonwealth’s witnesses, at the time
of his trial. Thus, any claim by plaintiff that he now has newly discovered
evidence as to the personal involvement of these three defendants with
respect to his constitutional claims is clearly without merit. Additionally, as
Judge Carlson has repeatedly pointed out in his reports, the issue is not
whether any defendant, including defendants Hand, Letcavage and Aponick,
used physical force on plaintiff, but rather the issue is whether the physical
force they used on plaintiff was excessive in violation of the Fourth
Thus, insofar as plaintiff seeks the court to revisit its order dismissing
his claims with prejudice as against defendants Hand, Letcavage and
Aponick, (Doc. 12), and to permit him to proceed with his original complaint
as against these defendants such request is denied.
Moreover, to the extent plaintiff references the Eighth Amendment in
addition to the Fourth Amendment with respect to his excessive force claim
which arose when he was being taken into custody and arrested, this claim
falls only under the Fourth Amendment. “Where . . . the excessive force claim
arises in the context of an arrest or investigatory stop of a free citizen, it is
most properly characterized as one invoking the protections of the Fourth
Amendment, which guarantees citizens the right ‘to be secure in their
persons . . . against unreasonable . . . seizures’ of the person.” Graham v.
Connor, 490 U.S. 386, 394 (1989); Bergdoll v. City of York, 515
Fed.Appx.165, 170 (3d Cir. 2013); see also Hubbard v. Taylor, 399 F.3d 150,
164 (3d Cir. 2005) (“[T]he Eighth Amendment’s Cruel and Unusual
Punishments Clause does not apply until ‘after sentence and conviction.’”
(citation omitted). The Fourth Amendment provides protection for “those
actions which occur between arrest and pre-trial detention.” Donahue v.
Gavin, 280 F.3d 371, 381 (3d Cir. 2002). In addition to plaintiff’s claim of
excessive force, his claims of false arrest and malicious prosecution are also
cognizable under the Fourth Amendment. Bergdoll, supra.
Additionally, even though neither of the reports at issue pertain to
defendant Carey’s separate motion for summary judgment, (Doc. 41), in his
third document filed in response to the reports, (Doc. 61), plaintiff merely
states as follows:
Chief Carey: This Defendant should not be removed because he
is the Defendant who shot the Plaintiff under the accusation that
the vehicle was rocking back and forth with the Plaintiff sitting
behind the steering-wheel. These actions where unwarranted
under the circumstances stated in the Plaintiff’s original
Defendant Carey filed his own motion for summary judgment, (Doc.
41), which will be addressed in a separate report by Judge Carlson. Thus,
plaintiff’s contention that his case should be allowed to proceed as against
defendant Carey is premature and he can raise any such argument in
response to Carey’s dispositive motion and, if appropriate, after Judge
Carlson issues his report with respect to Carey’s motion.
Plaintiff also attaches his Affidavit to his Doc. 61 filing, (Doc. 61-1), in
which he avers that after defendant Carey shot him twice, once in the right
arm and then in the right shoulder, while he was sitting unarmed in his
immobilized vehicle on August 26, 2013, trooper Allar shot him with his taser
gun. Plaintiff then avers that he was life flighted to Geisinger Hospital for
surgery to repair the bullet wounds. Plaintiff states that after his surgery he
was under doctors orders to get physical therapy and that he was transported
to Good Samarian Hospital in Pottsville, PA. Plaintiff further avers as follows:
On 9/11/13 Trooper[s] Kyper and Allar came to Good Samarian
Hospital AND DRAGGED [plaintiff] out of therapy, took him to
Schuylikill County Prison, without an arrest warrant, court order
or a Release form from his Doctor. Their action violated
[plaintiff’s] Fourth, and Fourteenth Amendment rights by
performing a warrantless arrest, using excessive force. The
Fourth Amendment prohibits police officers from making
unconsentual entry into a hospital. It is unconstitutional to stop
therapy or medical treatment without a doctors consent. The
arresting Troopers violated [plaintiff’s] Eighth Amendment that
prohibits using excessive force and more importantly cruel and
unusual punishment. On 9-14-13 because Troopers dragged
[plaintiff] out of therapy, thus, denying him the proper medical
care, the Troopers caused [plaintiff] to fall on the steps inside the
prison, when he was ordered to walk to counselor Frank’s office.
He had to be taken back to Giesinger Hospital, undergo a major
knee operation on his right leg, [ ], in violation of his Eight and
Fourteenth Amendment rights.
(Doc. 61-1, at 2).
Plaintiff further attaches a document titled “Justification for
Unnecessary Police Violence”, (Doc. 61-2), and a document titled “Plaintiff’s
Objections to the Dismissal of Defendants”, (Doc. 61-3), to his Doc. 61 filing.
In the three documents attached to his Doc. 61 filing, plaintiff is essentially
realleging his claims against defendants Allar and Kyper which are
thoroughly discussed by Judge Carlson his report in which he recommends
that the motion for summary judgment of these defendants be granted. (Doc.
59). As Judge Carlson explains, the undipsuted material facts simply do not
support plaintiff’s constitutional claims against Allar and Kyper, namely, that
Trooper Allar used excessive force when he deployed a taser as he assisted
in plaintiff’s arrest on August 26, 2013 and, that Troopers Allar and Kyper
falsely arrested plaintiff on September 11, 2014 when they came to the
hospital without a warrant, court order or doctor’s release and forcibly
removed him which compounded his injuries.
Despite plaintiff’s filings, (Doc. 61, Doc. 62, Doc. 63), including his
Affidavit in which plaintiff attests to facts without supporting documentation,
the undisputed evidence, as detailed by Judge Carlson, (Doc. 59 at 3-4), and
as supported by the documents submitted by defendants with their summary
judgment motion as well as the records of plaintiff’s criminal prosecution,
reveals that Trooper Allar is entitled to qualified immunity regarding the
excessive force claim since the deployment of his taser did not result in any
electrical discharge and “because it is clear from the record that no
reasonable officer in the trooper’s position would have believed he was
violating a clearly established constitutional right by attempting to use a taser
against a fleeing fugitive who had nearly struck several police officers with his
vehicle.” (Doc. 59 at 9) (citing, in part, Brown v. Cwynar, 484 Fed.Appx. 676,
681 (3d Cir. 2012)). With respect to Trooper Kyper, Judge Carlson explains
that Kyper is also entitled to qualified immunity regarding the false arrest and
malicious prosecution claims since Kyper arrested plaintiff pursuant to a
lawful warrant and since there was ample probable cause to file the criminal
charges against plaintiff stemming from the August 26, 2013 incident,
especially since plaintiff was convicted of the charges and his underlying
criminal case did not terminate in his favor. Thus, these claims against Kyper
are also barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Finally, in Judge Carlson’s Doc. 60 report, he recommends that
plaintiff’s motion for leave to file a second amended complaint, (Doc. 58), be
denied based on futility with respect to defendants Hand, Letcavage and
Aponick. Pursuant to the court’s discussion above regarding defendants
Hand, Letcavage and Aponick, the court concurs with Judge Carlson. With
respect to defendant Carey, Judge Carlson finds that the allegations in
plaintiff’s “proposed second amended complaint are redundant of those
already set forth in [his] first amended complaint.” The court agrees and thus
finds that the proposed seconded amended complaint is unnecessary as to
Carey. As such, plaintiff’s motion for leave to file a second amended
complaint, (Doc. 58), will be denied. See Alston v. Parker, 363 F.3d 229, 236
(3d Cir. 2004) (“leave to amend is justified only on the grounds of bad faith,
undue delay, prejudice, or futility.”).
The court has reviewed each of the recommended bases for granting
the summary judgment motion of defendants Allar and Kyper, (Doc. 45),
presented by Judge Carlson as well as his reasons for denying plaintiff’s
motion for leave to file a second amended complaint, (Doc. 58). Because the
court agrees with the sound reasoning that led Judge Carlson to the
conclusions in his reports and finds no clear error in the record, the court will
ADOPT the reports, (Doc. 59, Doc. 60), in their entirety. The court will
recommit this case to Judge Carlson for consideration of defendant Carey’s
summary judgment motion, (Doc. 41). An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: April 28, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2015 MEMORANDA\15-1172-03.wpd
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