Hunt v. City of Wilkes Barre et al

Filing 31

ORDER adopting 28 Report and Recommendations. 16 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Matthew Smith is GRANTED. The Amended Complaint (Doc. 7) is DISMISSED WITHOUT PREJUDICE. Plaintiff shall file a Second Amended Complaint within 60 days of this Order. 27 MOTION for Leave to File Amended Complaint is DISMISSED AS MOOT. The case is REMANDED to magistrate Judge Carlson for further proceedings consistent with this Order. Signed by Honorable Robert D. Mariani on 5/4/21. (jam)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HAROLD HUNT,
Plaintiff,

3:20-CV-464
(JUDGE MARIANI)
(Magistrate Judge Carlson)

v.
CITY OF WILKES BARRE, et al.,
Defendants.

AND NOW, THIS

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ORDER
DAY OF MAY, 2021, upon de nova review of Magistrate

Judge Carlson's Report and Recommendation ("R&R") (Doc. 28), Plaintiff's Objections
thereto (Doc. 29), and all other relevant documents, IT IS HEREBY ORDERED THAT:
1. Plaintiff's Objections (Doc. 29) are OVERRULED. The Court preliminarily notes that
although Plaintiff "believes that [he] has stated a claim against defendant Smith Dfor
false arrest and malicious prosecution under the Fourth Amendment to the U.S.
Constitution[,] Plaintiff concedes on all other counts" (Doc. 29, at 5), which include
claims of conspiracy to violate Plaintiff's due process rights, abuse of process, and
intentional infliction of emotional distress. Plaintiff's Objections to the R&R, and
specifically the recommendation that Plaintiff's claims for false arrest and malicious
prosecution be dismissed, fail to point to any error on the part of the Magistrate
Judge. The Objections first merely reiterate the factual allegations set forth in the
Amended Complaint. The Objections thereafter include the alleged false statements

set forth by Officer Smith in applying for a warrant, which appears to be an attempt
by Plaintiff to remedy one deficiency in the Amended Complaint noted by Magistrate
Judge Carlson (see Doc. 28, at 13 (Magistrate Judge finding that "absent further
well-pleaded allegations regarding specific falsehoods allegedly made by Smith from
which we could infer a lack of probable cause, Hunt's complaint fails to state a claim
for false arrest and malicious prosecution against Smith as a matter of law, under
both § 1983 and Pennsylvania law, and these claims should be dismissed.")). These
asserted false statements set forth in the Objections consist of new factual
allegations and thus cannot cure a deficiency in the current complaint, but rather
must be included in an amended complaint.
2. The R&R (Doc. 28) is ADOPTED for the reasons set forth therein.
3. Defendant Smith's Motion to Dismiss (Doc. 16) is GRANTED. The Amended
Complaint (Doc. 7) is DISMISSED WITHOUT PREJUDICE.
4. Plaintiff shall file a Second Amended Complaint within 60 days of the date of this
Order. 1
5. Plaintiff's Motion for Leave to File Amended Complaint (Doc. 27) is DISMISSED AS
MOOT.

1 Although

this Court would normally require Plaintiff to file his Second Amended Complaint within
21 days of dismissal of the Amended Complaint, in light of Plaintiffs representation that COVID-19 has
caused "law libraries" to be closed and that he was, or continues to, seek counsel in this case, and
Plaintiffs request that he therefore be permitted 60 days to file an amended complaint (see Doc, 29, at 5),
the Court will afford Plaintiff the additional time requested to file his Second Amended Complaint.

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6. The case is REMANDED to Magistrate Judge Carlson for further proceedings
consistent with this Order.

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