JACOBS v. BAYHA et al

Filing 168

MEMROANDUM ORDER granting in part with respect to Plaintiff's claim and denying in all other respects 118 Motion for Summary Judgment; denying 122 Motion for Summary Judgment; adopting Report and Recommendations re 165 Report and Recommendations. Signed by Judge Joy Flowers Conti on 7/18/2013. (cal)

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

ANDRE JACOBS,
Plaintiff,
v.
JEREMY DELANO and TORIANO,
Defendants.

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Civil Action No. 07 – 237
District Judge Joy Flowers Conti
Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER
This matter is before the court on the Report and Recommendation of a magistrate judge
dated May 24, 2013 (“R&R”), recommending that the motion for summary judgment filed by
defendant Daniel Toriano (“Toriano”) be denied and that the motion for summary judgment filed
by defendant Jeremy DeLano (“DeLano”) be granted with respect to the retaliation claim
asserted by plaintiff Andre Jacobs (“Plaintiff”), but denied in all other respects. The parties were
served with the R&R and informed that they had until June 10, 2013, to file written objections.
On June 7, 2013, defendants DeLano and Toriano filed their objections and on June 21, 2013,
Plaintiff filed his response in opposition. In the objections defendants essentially take issue with
the R&R findings that matters of credibility are raised by the conflicting evidence surrounding
the incident in question. Defendants argue that the deposition testimony of Plaintiff is so elusive
about the event that no reasonable jury could credit his testimony.

The magistrate judge,

however, correctly pointed out that there were discrepancies in the recollection of the two
defendants which implicates that their credibility is in issue.
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With respect to Plaintiff’s

deposition testimony, he could not recall specifics of the incident, but he had written notes that
were unavailable to him at the time of the deposition in 2011 which would have helped him to
recall the incident that occurred in 2005. When asked to describe details about the incident
Plaintiff stated:
A.

I don’t recall specifically at this time until I receive my
documentation. If I had all my documentation, I would be
able to answer all of your questions specifically, with
specificity.
As I stated, you know, details are blurry. I haven’t had any
of my documents, any of my documents. It’s a matter of
record. I got documentation to support this. I haven’t had
any of my records since November 5, 2010. I haven’t
been able to do any work on this case at all. My
confiscation slips –

Q.

Let me ask you with regard to the documentation you’re
referring to what in the documentation would help you
answer the questions I’m asking you now?

A.

My written – my written notes, my trial transcripts, my
complaint. I don’t’ have my complaint. I don’t have
anything.

Q.

Do the written notes describe in any specificity the
allegations you’re raising against Mr. Delano regarding his
escort during the recess?

A.

Yes. Absolutely, yes.

Q.

So tell me what those notes will say.

A.

Well, I don’t have the notes.

(T.T. 6/14/2011 at 7, 17-15; 8, 1-12 (ECF No. 121-10 at 4)). Plaintiff, however, testified that he
did remember DeLano choking him.
Q.

Well, tell me what you do remember.
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A.

I do – I remember that Delano assaulted me inside of the
elevator.

Q.

Okay. What did he do?

A.

He chocked me. He slammed up against the wall. You
know, I don’t have the complaint. You know, they took the
complaint. They took my written notes. I haven’t received
any discovery in this case, so I don’t know if there were
any medical records as to the injuries I received.

(Id. at 5, 23-25; 6, 1-6).
Plaintiff’s testimony may be called into question by his lack of memory and other matters
raised by defendants. A jury may consider those matters in assessing his credibility, but his
testimony about the chocking is directly contrary to Delano’s testimony and Delano’s testimony
is inconsistent with Toriano’s testimony. The magistrate judge was correct in recommending
that there are genuine disputes about the material facts relating to the incident.
Upon review of the submissions and the record, the court finds that the objections do not
undermine the recommendation of the magistrate judge. Therefore, after a de novo review of the
pleadings, documents in this case and the submissions of the parties, together with the R&R, and
objections thereto, the following order is entered.
AND NOW, this 18th day of July, 2013,
IT IS HEREBY ORDERED that Defendant Toriano’s Motion for Summary Judgment
(ECF No. 122) is DENIED.
IT IS FURTHER ORDERED that Defendant DeLano’s Motion for Summary Judgment
(ECF No. 118) is GRANTED with respect to Plaintiff’s retaliation claim and DENIED in all
other respects.

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AND IT IS FURTHER ORDERED that the Report and Recommendation dated May
24, 2013 (ECF No. 165) is adopted as the opinion of this court.

By the Court:
/s/ JOY FLOWERS CONTI
Joy Flowers Conti
United States District Judge

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