PARRY v. WESTMORELAND COUNTY et al

Filing 43

MEMORANDUM ORDER adopting Report and Recommendation re 38 Report and Recommendation; denying 41 Motion to Stay and granting 20 Motion to Dismiss. Signed by Judge Terrence F. McVerry on 4/29/2011. (kly)

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

THOMAS G. PARRY,

)
)
Plaintiff,
) Civil Action No. 10-1308
)
vs.
)
)
WESTMORELAND COUNTY; ERIC
) Judge Terrence F. McVerry/
ZONAS; THOMAS GRACE; and DEBRA ) Chief Magistrate Judge Lisa Pupo Lenihan
ANN PEZZE,
)
)
Defendants. ) re ECF Nos. [38]; [41] & [42]

MEMORANDUM ORDER
The above-captioned pro se prisoner civil rights complaint was received by the Clerk of
Court on October 7, 2010, and was referred to Chief Magistrate Judge Lisa Pupo Lenihan for
pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and
Local Civil Rules 72.C and D.
Chief Magistrate Judge Lenihan‟s Report and Recommendation, ECF No. [38], filed on
March 31, 2008, recommended that Defendant Zona‟s motion to dismiss be granted and that the
federal claims be dismissed with prejudice and that the Court decline to exercise supplemental
jurisdiction over the State law claims. Plaintiff was informed that, in accordance with the
Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and the local rules, he had a specific
period of time in which to file his objections. On April 18, 2011, the Court received two filings
from Plaintiff. One was a motion to stay this case pending disposition of Plaintiff‟s appeal to the
Superior Court in his PCRA proceedings. ECF No. [41]. The second was Plaintiff‟s objections.
ECF No. [42].

The Report found that Plaintiff‟s claims of malicious prosecution were barred because
Plaintiff‟s claims of malicious prosecution were based on establishing that Trooper Zona lacked
reasonable suspicion or probable cause to stop the car, which required this Court to examine this
question and inevitably required this Court to review the Suppression Court‟s finding that
probable cause did exist, however, this Court is barred from doing so by the Rooker-Feldman
doctrine. Plaintiff contends in his objections that “Rooker-Feldman should not apply where
„abuse of process‟ is relevant in this case for wrongful “arrest and imprisonment [] regardless of
favorable termination or want of probable cause.” ECF No. [42] at 1. Plaintiff does not clearly
explain why the bar of Rooker-Feldman does not apply in malicious prosecution cases. The law
is clearly to the contrary in that Rooker-Feldman does most certainly apply to malicious
prosecution cases. See, e.g., Ewing v. O‟Brien, 115F.app‟x 780 (6th Cir. 2004) (applying
Rooker-Feldman to bar malicious prosecution and abuse of process claims); Ellis v. CAC
Financial Corp., 6 F.App‟x 765 (10th Cir. 2001) (same). It appears that Plaintiff is arguing
because the Trial Court found Plaintiff not guilty of the Careless Driving charge, the Trial Court
essentially overturned the Suppression Court‟s finding of probable cause. See ECF No. [42] at 2
to 3. However, the Report adequately addressed this argument and correctly found that the Trial
Court‟s exoneration of Plaintiff regarding the Careless Driving charge did nothing to the
Suppression Court‟s finding of probable cause to stop the car based upon the Trooper‟s
reasonable belief that Plaintiff had violated the Careless Driving statute. ECF No. [38] at 8 to 9.
Moreover, we note that if Plaintiff were right that the Trial Court overturned the Suppression
Court‟s finding of probable cause that justified the initial stop, then Plaintiff‟s argument that all
subsequent evidence obtained ought to have been suppressed should have persuaded the Trial
Court to, in fact, suppress such evidence. The Trial Court did not suppress any evidence and

2

found Plaintiff guilty of crimes based on evidence obtained solely via Trooper Zona‟s stopping
of Plaintiff‟s car. That the Trial Court did not suppress any evidence and did find Plaintiff guilty
of crimes based on evidence derived from the stop conclusively establishes that the Trial Court
did not overturn the Suppression Court‟s finding that Trooper Zona possessed probable
cause/reasonable suspicion so as to justify the initial stop of the car.
Plaintiff‟s objections do nothing to undermine the reasoning of the Report or to merit its
rejection.
Accordingly, after de novo review of the pleadings and the documents in the case,
together with the Report and Recommendation, the following order is entered:
AND NOW, this 29th day of April, 2011,
IT IS HEREBY ORDERED that Plaintiff‟s federal law claims are dismissed for failure to
state a claim upon which relief can be granted, and Defendant Zona‟s motion to dismiss, ECF
No. [20], is GRANTED. The Court declines to exercise supplemental jurisdiction over
Plaintiff‟s State law claims.
IT IS FURTHER ORDERED that the Report and Recommendation, ECF No. [38], filed
on March 31, 2011, by Chief Magistrate Judge Lenihan, is adopted as the opinion of the Court,
as supplemented by this Memorandum Order.
IT IS FURTHER ORDERED that Plaintiff‟s motion to stay, ECF No. [41], is DENIED.
The Clerk is to mark the case closed.
s/ Terrence F. McVerry
Terrence F. McVerry
U.S. District Judge

cc:

The Honorable Lisa Pupo Lenihan
Chief United States Magistrate Judge

3

THOMAS G. PARRY
JN-2161
SCI Mahanoy
301 Morea Road
Frackville, PA 17931
All Counsel of Record via ECF

4