BLACK et al v. ALLEGHENY COUNTY et al

Filing 229

MEMORANDUM ORDER granting plaintiffs' 151 Motion to Dismiss Counterclaim and adopting 178 Report and Recommendation of Magistrate Judge Eddy as the Opinion of the Court. Counterclaim is dismissed in its entirety with prejudice. Signed by Judge David S. Cercone on 9/5/14. (njt)

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

DEBRA BLACK; EARL BLACK,
ADMINISTRATORS OF THE EST ATE
OF DEREK BLACK,
Plaintiffs,

V.

ALLEGHENY COUNTY; ALLEGHENY
COUNTY CORRECTIONAL HEALTH
SERVICES; MIGUEL SOLOMON;
WILLIAMS. STICKMAN, III; DANA
PHILLIPS; MICHAEL PATTERSON, M.D.;
KIM WILSON, M.D.;CHRIS MARSH,
R.N.; VALERIE SLEPSKY; MEDICAL
STAFFJOHN AND JANE DOES 1-15;
CORRECTIONAL STAFF JOHN AND
JANE DOES 1-15
Defendants.

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2:13cv179
Electronic Filing
Judge David Stewart Cercone
Magistrate Judge Cynthia Reed Eddy

MEMORANDUM ORDER
This action was commenced February 1, 2013, and was referred to United States
Magistrate Judge Cynthia Reed Eddy for pretrial proceedings in accordance with the Magistrate
Judges Act, 28 U.S.C § 636(b )(1 ), and the Local Rules of Court for Magistrate Judges. At the
close of discovery, with permission from the magistrate judge, Plaintiffs filed a Second
Amended Complaint. (ECF No. 140). The County Defendants timely responded by filing an
Answer with Affirmative Defenses and Counterclaim. (ECF No. 146). Plaintiffs responded to
the Counterclaim by filing a Motion to Dismiss for failure to state a claim. (ECF No. 151 ). The
County Defendants responded to said Motion to Dismiss on May 2, 2014. (ECF No. 174).

On May 16, 2014, the magistrate judge issued a Report and Recommendation ("R&R")
(ECF No. 178), recommending that Plaintiffs Motion to Dismiss the Counterclaim be granted.
The County Defendants filed objections to the R&R on May 20,2014 (ECF No. 181), to which
Plaintiffs responded on June 3, 2014, (ECF No. 193).
When objections to a report and recommendation have been filed, under 28 U.S.C. §
636(b )(I), the court must make a de novo determination of those portions of the report to which
objections are made. See Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989); Fed. R. Civ.
P. 72(b)(3). The court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.
The County Defendants first argue that the magistrate judge erred in issuing the R&R
because "[i]t appears the Third Circuit has not disallowed counterclaims for attorneys' fees and
costs under§ 1988(b)." In support ofthis argument, however, the County Defendants cite to no
authority in our circuit stating that a party may bring a counterclaim under 42 U.S.C. § 1988.
Likewise, as Plaintiffs have argued, the other courts of appeals that have addressed this issue
have all held that § 1988 does not provide for a separate cause of action and have dismissed
similar counterclaims. This is consistent with the Supreme Court's holding in Moor v. Alameda

County, 411 U.S. 693, 703-704 (1973) that § 1988 does not create an independent federal cause
of action, but instead is a complement to acts which constitute federal causes of action, such as §
1983. Therefore, the magistrate judge did not err in recommending that the counterclaim for
attorneys' fees under§ 1988 be dismissed. Because the appropriate avenue to seek attorney's
fees under § 1988 is through motion via Federal Rule of Civil Procedure 54(b) after the party has
"prevailed," the County Defendants are not permitted to argue this issue to the jury. See Tunstall

v. Office of Judicial Support of Court of Common Pleas, 820 F.2d 631, 633 (3d Cir. 1987)

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(providing that in order for the Defendant to be liable under § 1988, it must first be liable under §
1983 ).
In the alternative, the County Defendants requested that if the Court dismisses the
counterclaim, the paragraphs contained within the counterclaim should be allowed to remain in
the document because they "stand on their own as denials for Plaintiffs' allegations and as
defenses that Defendants intend to raise." (ECF No. 174

at~

21). The magistrate judge

recommended that this request also be denied, stating that "it would result in the document being
unnecessarily confusing" and noting that the County Defendants "have made similar allegations
in the Affirmative Defenses section, which consists of twenty-nine paragraphs." (ECF No. 178
at 5-6). The County Defendants objected to this portion of the R&R as well, contending that said
paragraphs should be allowed to remain in place because they "constitute denials of the
Plaintiffs' claims, serve as affirmative defenses, and merely request relief to which Defendants
will be entitled should they prevail in this action," and that it "would not cause the Amended
Answer to be confusing." (ECF No. 181

at~

14). The Court rejects the County Defendants'

arguments and agrees with the reasoning of the magistrate judge. Therefore, the counterclaim,
including the paragraphs contained within it (ECF No. 146 at~~ 141-143), shall be dismissed
with prejudice.
After de novo review of the pleadings and documents in this case, together with the
Report and Recommendation, the following order is entered:
~
AND NOW this~ day of September, 2014,
IT IS HEREBY ORDERED that Plaintiffs' Motion to Dismiss the Counterclaim (ECF

No. 151) is GRANTED, and the Counterclaim (ECF No. 146 at~~ 141-143) is dismissed in its
entirety with prejudice.

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IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 178)
dated May 16, 2014, is ADOPTED as the Opinion ofthe Court.

David Stewart Cercone
United States District Judge
cc:

Honorable Cynthia Reed Eddy,
United States Magistrate Judge
Timothy M. Kolman, Esquire
W. Charles Sipio, Esquire
Wayne A. Ely, Esquire
Andrew F. Szefi, Esquire
Lee M. Dellecker, Esquire
Paul R. Dachille, Esquire
Stanley A. Winikoff, Esquire

(Via CMIECF Electronic Mail)

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