SCUTELLA v. CITY OF ERIE BUREAU OF POLICE et al

Filing 32

MEMORANDUM ORDER that the 30 Report and Recommendation of Magistrate Judge Baxter dated 4/20/2012 is adopted as the Opinion of the Court except as modified. IT IS FURTHER ORDERED that Defendants' 23 Motion to Dismiss Plaintiff's mal icious prosecution claim and his excessive force claim to the extent it is premised on the 8th Amendment and the 14th Amendment is GRANTED WITH PREJUDICE. Leave to amend is denied as futile; that 23 Defendants' Motion to Dismiss Plaintiff 9;s 42 U.S.C. Section 1983 municipal liability claim against Defendant City of Erie Bureau of Police is GRANTED WITHOUT PREJUDICE. Plaintiff shall be permitted until 6/15/2012 to file a Second Amended Complaint that sufficiently alleges facts to sup port a municipal liability claim against Defendant City of Erie Bureau of Police; that Defendants' 23 Motion to Dismiss Plaintiff's 4th Amendment excessive use of force claim, his conspiracy claim, and his inadequate medical care claim to the extent it is premised upon the Due Process clause of the 14th Amendment is DENIED. Signed by Judge Maurice B. Cohill on 5/15/2012. (sjs)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JHENSCUTELLA,

)

)
Plaintiff,
)
)
vs.
) Civil Action No. 11-198 Erie
)
CITY OF ERIE BUREAU OF POLICE, )
ET AL.
)
)
Defendants.
)
)
MEMORANDUM ORDER

Plaintiff Jhen Scutella filed a motion to proceed in forma pauperis on September 9,
2011. On September 19,2011, the motion was granted and Plaintiffs Complaint was filed and
referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation
in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of
the Local Rules for Magistrates.
On January 25, 2012, Defendants filed a motion to Dismiss Plaintiffs Complaint. On
March 7, 2012, Plaintiff filed a Motion to Amend Complaint. Magistrate Judge Baxter granted
Plaintiffs Motion on March 8, 2012, and Plaintiffs Amended Complaint was filed that same
day.
On March 19, 2012, Defendants filed a "Motion to Dismiss Amended Complaint"
[ECF#23]. On March 28, 2012, Plaintiff filed its Response to Defendants' Motion to Dismiss.
On April 20, 2012, Magistrate Judge Baxter filed a Report and Recommendation in
which she recommended the Defendants' Motion to Dismiss Plaintiffs Amended Complaint be
granted as to Plaintiff s malicious prosecution, Eighth Amendment excessive force, and due

process claims and otherwise denied: "[a]ccordingly the only claims that should remain are
Plaintiffs Fourth Amendment excessive use afforce, conspiracy, and Eighth Amendment
deliberate indifference claims, as well as his pendent state law claims of assault, battery, and
intentional infliction of emotional distress." April 20, 2012 Report and Recommendation, p. 12
The parties were allowed fourteen (14) days from the date of service to file objections.
On April 26, 2012, the Court received Plaintiff's "Motion to Object" [ECF#31], which
we have treated as being Plaintiffs Objections to the Report and Recommendation. In his
Objections, Plaintiff asserts:
It is the Plaintiffs counter-argument that the municipality should be held liable,
as an existing policy, whether written or unwritten, is in question, and because
their "status as employer" is not the grounds of this Complaint. As it has
contemptuous knowledge of these officers' conduct and actions and still employs
them without investigation or qualitative reprimand, the city police department is
more than the "employer" in this regard. They are acting to shield their employees
from liability to justice in cases such as these (involving the excessive use of
force) and are thereby acting as "agents" of a sort which implicates them in their
employees' reproachable conduct. The fact that such inaction and dismissal of
allegations (of misconduct) exists, implies that there is an unofficial or unwritten
"policy" in regards to the use of force in which the office exercises and reinforces
to its members. Indeed, in the absence of a specific code of conduct governing
the use of and/or excessive use of force, such as an unwritten code would have to
exist. And even if the Erie Police Bureau does have a policy that regulates the use
of force and the use of non-deadly weapons such as tasers, the matter of whether
these policies are actually internally enforced comes into question. If not, there
are clearly grounds for liability against the municipality who employs such
officers, trains, educates and authorizes such agents under its sale authority. As
far as what the City of Erie's Bureau of Police's customs or practices are
concerning the areas where its policy on the excessive use of force is vague or
non-addressed, it should be evident by the number of cases filed against the city
for the excessive use of force by its police officers in recent years.
Also, pursuant to 42 U.S.C. 1983, an individual may bring suit for damages
against any person acting under color of law alleged to have committed a
deprivation of any right, privilege, or immunity served by the United States
Constitution or federal law (Couden vs. Duffy), 446 F.3d 483, 491 (3d Cir. 2006).
If when out of uniform and off-duty, these officers would still be legally
accountable for the position of authority which they hold, and indeed, have the

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municipal power to make arrests out of uniform and in unmarked vehicles. How
much more then, in this case, where the officers were in-uniform and on-duty,
acting as representatives of the policies, dictates, and directives of said
municipality, be held responsible together with the municipality they represent for
any violation of constitutional right committed under their watch and jurisdiction?
This is a clear case of the left hand pretending not to see what the right hand is
doing: "We won't pursue accountability against our rouge officers who are in
breach of our policies (if indeed there are any specific policies in this regard), but
we also won't accept responsibility for anything they commit in our name, with
our approval, under our colors." Therefore, the Erie police need to be held
accountable, as they are just as liable as the officers who committed the
deprivation of rights.
Objections, pp. 1-3.
Rule 72 of the Federal Rules of Civil Procedure provides in pertinent part: the district
court may accept, reject, or modify the recommended decision, receive further evidence, or
recommit the matter to the magistrate judge with instructions. Fed.R.Civ.P.72(b). We accept
the Report and Recommendation, filed on April 20, 2012, in its totality with the following
modification, and adopt the Report and Recommendation as the Opinion of this Court, with the
following modifications. First, in light of Plaintiffs Objections, we find that Plaintiff shall be
permitted until June 15, 2012, to file a Second Amended Complaint that sufficiently alleges facts
to support a 42 U.S.c. § 1983 municipal liability claim against Defendant City of Erie Bureau
Police. Second, as explained by Magistrate Judge Baxter at page 9 of in her Report and
Recommendation, when a plaintiff is a pretrial detainee who is alleging an inadequate medical
care claim, such a claim is brought pursuant to the Due Process Clause of the Fourteenth
Amendment, rather than the Eighth Amendment. See Natale v. Camden County Correctional
Facility, 318 F.3d 575, 581-82 (3d Cir. 2003). As such, Defendants' motion to dismiss Plaintiffs
due process claim is granted only to the extent said claim is premised upon factual allegations of
excessive force, and is denied to the extent it is premised upon factual allegations of inadequate
medical care.
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Therefore, after

novo review of the pleadings and documents in the case,

together with the report and recommendation and objections thereto, the following Order
is entered:
AND NOW, this

,.>

th

day of May, 2012, it is hereby ORDERED, ADJUDGED and

DECREED that the Report and Recommendation of Magistrate Judge Baxter [ECF#12], dated
April 20, 2012, is adopted as the Opinion of this Court except as modified above.

It is further hereby ORDERED, ADJUDGED and DECREED that:
1. Defendants' Motion to Dismiss Plaintiff's malicious prosecution claim and his

excessive force claim to the extent it is premised upon the Eighth Amendment and the
Fourteenth Amendment is GRANTED WITH PREJUDICE. Leave to amend is denied as futile.
Grayson v. Mayview State Hosp., 293 F.3d 103,108 (3d Cir. 2002).
2.

Defendants' Motion to Dismiss Plaintiff's 42 U.S.C. § 1983 municipal liability

claim against Defendant City of Erie Bureau Police is GRANTED WITHOUT PREJUDICE.
Plaintiff shall be permitted until June 15,2012, to file a Second Amended Complaint that
sufficiently alleges facts to support a 42 U.S.c. § 1983 municipal liability claim against
Defendant City of Erie Bureau Police. Id.
3. Defendants' Motion to Dismiss Plaintiffs Fourth Amendment excessive use of
force claim, his conspiracy claim, and his inadequate medical care claim to the extent it is
premised upon the Due Process clause of the Fourteenth Amendment, is DENIED.

~"..:.. ~

ae.:.u.lr

M URICE B. COHILL, JR.
United States District Judge
cc:

Susan Paradise Baxter, U.S. Magistrate Judge
Jhen Scutella, pro se
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