EAVES v. WALKER et al
ORDER indicating that the Magistrate Judges Report and Recommendation 20 is adopted as the opinion of this Court; that the amended complaint is dismissed and the Clerk of Court shall mark this case closed; that Plaintiff's Motions to Add Rel ief 22 , for Extension of Time 23 , to Add Defendants 24 , and for Leave to File 26 are denied as futile; that, pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, if any party wishes to appeal from this Order a notice of appeal, as provided in Fed. R. App. P. 3, must be filed with the Clerk of Court, United States District Court, at 700 Grant Street, Room 3110, Pittsburgh, PA 15219, within 30 days. Signed by Judge Nora Barry Fischer on 11/16/17. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MR. FRANK WALKER, MONICA CWYNAR,
ALLEGHENY COUNTY DISTRICT
ATTORNEY OFFICE, ALLEGHENY COUNTY
JAIL, MR. SHALEK, PRESBYTERIAN
HOSPITAL, and KEEFE COMMISSARY; and
Civil Action No. 17-886
Judge Nora Barry Fischer/
Chief Magistrate Judge Maureen P. Kelly
ORDER OF COURT
AND NOW, this 16th day of November, 2017, after Plaintiff Anthony Eaves (“Plaintiff”)
filed an amended complaint in the above-captioned matter, and after a Report and
Recommendation was filed by Chief United States Magistrate Judge Maureen P. Kelly giving
Plaintiff until November 24, 2017 to file written objections thereto, and upon consideration of
the Objections filed by Plaintiff, and upon independent review of the record, and upon
consideration of the Magistrate Judge’s Report and Recommendation, which is ADOPTED as
the opinion of this Court,
IT IS HEREBY ORDERED that the amended complaint is DISMISSED and the Clerk of
Court shall mark this CASE CLOSED. IT IS FURTHER ORDERED that Plaintiff’s Motions to
Add Relief , for Extension of Time , to Add Defendants , and for Leave to File 
are DENIED AS FUTILE. In this regard, we note that Plaintiff’s allegations against Officer
Joseph Osinski and the City of McKeesport Police Department, which are contained in Plaintiff’s
proposed Third Amended Complaint, ECF No. 26-1, fail to state a claim upon which relief can be
granted. Essentially, the proposed Third Amended Complaint seeks to hold these two proposed
defendants liable either for false arrest or malicious prosecution in the criminal case against
Plaintiff in Commonwealth v. Eaves, CP-02-CR-0000980-2016 (C.P. Allegheny County)1 of
which we take judicial notice. However, we note that Plaintiff pleaded nolo contendere in that
case to simple assault and was sentenced to 2 years of probation on September 27, 2017.
Accordingly, Plaintiff cannot establish false arrest because it is clear that based upon Jennifer
Richard’s, i.e., the victim’s statements as apparently reported to Officer Osinski and Plaintiff’s
conviction for simple assault, Officer Osinski had probable cause to seek an arrest warrant for
Plaintiff. Schirmer v. Penkethman, CIV. 10-1444 RMB/JS, 2012 WL 6738757, at *9 (D.N.J.
Dec. 31, 2012) (“As discussed above, a finding of probable cause as to any charge is sufficient to
defeat a false arrest claim. Johnson, 477 F.3d at 85. And, here, regardless of whether there were
jurisdictional infirmities with respect to the charges based on J.H.'s allegations, Defendants had
probable cause to arrest Plaintiff based on S.S.' allegations.”) (footnote omitted), aff'd, 553 F.
App’x 268 (3d Cir. 2014).
As to the malicious prosecution claim, under the facts as alleged in the proposed Third
Amended Complaint and the reports of the victim to Officer Osinski, Plaintiff’s conviction in his
criminal case necessarily bars the malicious prosecution claim. Crock v. Pennsylvania, 397 F.
App’x 747, 750 (3d Cir. 2010) (“One necessary element of a malicious-prosecution claim is
success in the underlying criminal proceeding. Johnson v. Knorr, 477 F.3d 75, 81–82 (3d Cir.
2007). Since Crock pleaded nolo contendere to disorderly conduct, he cannot now claim that he
was maliciously prosecuted.”).
Insofar as Plaintiff claims racial animus in his criminal prosecution, such claims are barred
The dockets of this case are available at:
(site last visited 11/16/2017).
by Heck v. Humphrey, 512 U.S. 477 (1994). Hundley v. Ziegler, No. 07-848, 2007 WL 2345285,
at *4 (W.D. Pa. Aug.16, 2007) (“‘Plaintiff is attempting to establish that the defendants conspired
against him to falsely convict him due to their alleged racial animus ... success in establishing
such would necessarily render his convictions or sentences invalid’ and thus, are barred by
Heck”). Plaintiff’s allegations of negligence on the part of any Defendants or proposed
Defendants is insufficient to state a claim under Section 1983. Daniels v. Williams, 474 U.S. 327,
333 (1986) (“injuries inflicted by governmental negligence are not addressed by the United States
Constitution”). Accordingly, Plaintiff’s motion to file a Third Amended Complaint is denied as
futile as are all other pending motions.
Any further attempted amendment would be futile.
IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(1) of the Federal Rules of
Appellate Procedure, if any party wishes to appeal from this Order a notice of appeal, as
provided in Fed. R. App. P. 3, must be filed with the Clerk of Court, United States District Court, at
700 Grant Street, Room 3110, Pittsburgh, PA 15219, within thirty (30) days.
By the Court:
/s/Nora Barry Fischer
United States District Judge
Honorable Maureen P. Kelly
Chief United States Magistrate Judge
P.O. Box 111
Torrance, PA 15779
903 Watson Street
Pittsburgh, PA 15219
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