JOHNSON v. CITY OF PITTSBURGH et al

Filing 54

MEMORANDUM ORDER adopting 42 Amended Report and Recommendation. IT IS HEREBY ORDERED that Defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Docs. 24 and 32 ) are GRANTED IN PART AND DENIED IN PART, as foll ows: (1) Plaintiff's Fourth Amendment and First Amendment claims against the City of Pittsburgh, the University of Pittsburgh and the University of Pittsburgh Police Department are dismissed without prejudice; (2) Defendants' motion to dism iss Plaintiff's Fourth Amendment claims against Officer Falarico, Officer Visnich, Officers John Doe 1 and 2 for their conduct in relation to Plaintiff's investigative detention is denied; (3) Plaintiff's Fourth Amendment claims agains t Officer Falarico, Officer Visnich, Officers John Doe 1 and 2 for their conduct in relation to seizing his personal property at the scene of his arrest are dismissed with prejudice; (4) Plaintiff's access to the courts claims against Officer Fa larico, Officer Visnich, Officers John Doe 1 and 2 are dismissed with prejudice; (5) Defendants' motion to dismiss Plaintiff's punitive damages claims is denied; (6) Defendants' motion to dismiss any official capacity suits against the individual officers is granted; and (7) The University Defendants' motion to strike specific dollar amounts of unliquidated damages and Plaintiff's "Statement to the Court No Confidence" is granted and the specific dollar amounts of unliquidated damages are stricken from Plaintiff's complaint and Plaintiff's request that this case be transferred to the Court of Appeals for the Third Circuit is denied. The Magistrate Judge's Report and Recommendation dated May 11, 2017 (Doc. 42 ), hereby is adopted as the Opinion of the District Court. Signed by Judge Cathy Bissoon on 7/5/2017. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID S. JOHNSON,
Plaintiff,
v.
CITY OF PITTSBURGH,
et.al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 16-1068
Judge Cathy Bissoon
Magistrate Judge Cynthia Reed Eddy

MEMORANDUM ORDER
This case was referred to United States Magistrate Judge Cynthia Reed Eddy for pretrial
proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(l)(A) and (B), and
Local Rule of Civil Procedure 72.
On May 11, 2017, the Magistrate Judge issued a Report (Doc. 42) recommending that
Defendants’ motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Docs. 24
and 32) be granted in part and denied in part. Service of the Report and Recommendation was
made on the parties.
On June 16, 2017, Plaintiff filed objections to the Report and Recommendation. (Doc.
46). On June 30, 2017, Defendants University of Pittsburgh of the Commonwealth System of
Higher Education (incorrectly identified as “University of Pittsburgh” and “University of
Pittsburgh Police Department”), Officer Sara Falotico, Officer Alexander Visnich, Sgt. John Doe
and Officer John Doe (collectively, the “University Defendants”), filed a Response to Plaintiff’s
objections. (Doc. 49). Defendant City of Pittsburgh filed a Response to Plaintiff’s objections
that same day. (Doc. 50).

After a de novo review of the pleadings and documents in the case, together with the
Report and Recommendation and the Objections thereto, the Court makes the following findings:
Pursuant to the authority and reasoning stated in the Report (Doc. 42), Plaintiff’s
objections are overruled.
First, the Court overrules Plaintiff’s objection to the dismissal of his Fourth Amendment
claims against the City of Pittsburgh, the University of Pittsburgh, and the University of
Pittsburgh Police Department. As the Defendants argue, Plaintiff cannot hold these Defendants
liable under the doctrine of respondeat superior, and the Complaint contains no factual
allegations showing that any of these Defendants had a municipal custom or policy that caused
his alleged constitutional violations. Monell v. Dep’t of Social Serv., 436 U.S. 658, 691 (1978).
Second, the Court overrules Plaintiff’s objection to the dismissal of his Fourth
Amendment claim based on the seizure of his personal property incident to arrest. Plaintiff
claims that Defendants’ continued possession of his property constitutes a Fourth Amendment
violation. “[N]ormally ... the government’s continued possession is not separately actionable as a
Fourth Amendment violation.” Aleynikov v. McSwain, 2016 WL 3398581, at *18 (D.N.J. June
15, 2016) (citing Gonzalez v. Village of West Milwaukee, 671 F.3d 649, 660 (7th Cir. 2012)).
However, “a seizure reasonable at its inception because based on probable cause may become
unreasonable as a result of its duration....” Id. (citing Segura v. United States, 468 U.S. 796, 812
(1984)). Here, the Court finds that Defendants’ continued possession of Plaintiff’s property,
seized on June 20, 2016, is not a separate Fourth Amendment violation, given that Plaintiff
initiated this lawsuit only one month after the property was seized and that, shortly thereafter, the
University Defendants offered to return the property to Plaintiff. (See Doc. 25 at 7)
(“Defendants are in possession of Plaintiff’s items confiscated upon his arrest. Now that Plaintiff

2

has requested them back, through this lawsuit, Defendants will return those items to him at the
direction of and per the mechanisms determined by this Honorable Court.”).
Finally, the Court overrules Plaintiff’s objection to the Magistrate Judge’s dismissal of
his deprivation of access to the court claim. As the Magistrate Judge properly found, Plaintiff
does not allege that he lost his pending appeal before the Court of Appeals for the Third Circuit
due to the confiscation of his notes on June 20, 2016. Indeed, the public records in that case
confirm that his appellate brief was due and submitted prior to his arrest, that he submitted
documents in support of his appeal following his arrest, and that the Court of Appeals affirmed
the district court’s dismissal of his case on the merits on immunity grounds, and not because
Plaintiff was found to have procedurally defaulted his appeal. See David Johnson v. Allegheny
County Court of Comm, et al., 15-4002 (3d Cir. 2015).
For the reasons stated in the Report and herein, the following Order is entered:
Defendants’ motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) are
GRANTED IN PART AND DENIED IN PART as follows:
(1) Plaintiff’s Fourth Amendment and First Amendment claims against the City of
Pittsburgh, the University of Pittsburgh and the University of Pittsburgh Police
Department are dismissed without prejudice;
(2) Defendants’ motion to dismiss Plaintiff’s Fourth Amendment claims against Officer
Falarico, Officer Visnich, Officers John Doe 1 and 2 for their conduct in relation to
Plaintiff’s investigative detention is denied;
(3) Plaintiff’s Fourth Amendment claims against Officer Falarico, Officer Visnich, Officers
John Doe 1 and 2 for their conduct in relation to seizing his personal property at the scene
of his arrest are dismissed with prejudice;

3

(4) Plaintiff’s access to the courts claims against Officer Falarico, Officer Visnich, Officers
John Doe 1 and 2 are dismissed with prejudice;
(5) Defendants’ motion to dismiss Plaintiff’s punitive damages claims is denied;
(6) Defendants’ motion to dismiss any official capacity suits against the individual officers is
granted;
(7) The University Defendants’ motion to strike specific dollar amounts of unliquidated
damages and Plaintiff’s “Statement to the Court – No Confidence” is granted and the
specific dollar amounts of unliquidated damages are stricken from Plaintiff’s complaint
and Plaintiff’s request that this case be transferred to the Court of Appeals for the Third
Circuit is denied.
The Magistrate Judge’s Report and Recommendation dated May 11, 2017, hereby is
adopted as the Opinion of the District Court.
IT IS SO ORDERED.

July 5, 2017

s/Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All counsel of record
cc (via First-Class U.S. Mail):
DAVID S. JOHNSON
620 Fallsway
Baltimore, MD 21202

4