Brown et al v. Wayne County Pennsylvania et al

Filing 94

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; granting 70 Motion to Dismiss Case as Frivolous; adopting 87 Report and Recommendations.; adopting 88 Report and Recommendations.; denying 91 Motion to Strike ; SEE ORDER FOR ALL INFORMATION; CASE CLOSED; Signed by Honorable Malachy E Mannion on 2/15/21. (ep)

Case 3:18-cv-00155-MEM Document 94 Filed 03/15/21 Page 1 of 7

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
NOEL L. BROWN,
Plaintiff

:

WAYNE COUNTY
PENNSYLVANIA, et al.

CIVIL ACTION NO. 3:18-155

:

v.

:

(MANNION, D.J.)

:
:

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”),

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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
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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,
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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
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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.
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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;
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(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

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