COGLEY v. COUNTY OF BUTLER, et al

Filing 74

MEMORANDUM ORDER indicating that the 71 Report and Recommendation is adopted as the Opinion of the Court, and 46 Defendant Sgt. Fundark's Motion to Dismiss Plaintiff's Amended Complaint for failure to state a claim pursuant to Federal R ule of Civil Procedure 12(b)(6) is granted in part and denied in part. The motion is: (1) granted as to Plaintiff's state law negligence claims, which are dismissed with prejudice; (2) denied as to Plaintiff's Fourth Amendment excessive fo rce claim and his state law assault and battery claim; and (3) granted as to Plaintiff's Monell claim, which is dismissed without prejudice to amendment. If Plaintiff wishes to file a Second Amended Complaint, he shall do so by 1/28/25, in whic h case Sgt. Fundark shall respond thereto by 2/18/25; and if Plaintiff does not file a Second Amended Complaint by 1/28/25, then his Monell claim will be dismissed with prejudice, and Sgt. Fundark shall respond to the remaining claims in the Amended Complaint by 2/18/25. See Memorandum Order for further details. Signed by Judge W. Scott Hardy on 1/7/25. (lwp)

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

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JAMES A. COGLEY,
Plaintiff,
v.
SGT. R. FUNDARK,
Defendant.

Civil Action No. 23-1152
District Judge W. Scott Hardy
Magistrate Judge Kezia O. L. Taylor

MEMORANDUM ORDER
Presently before the Court is the Report and Recommendation (“R&R”) entered by
Magistrate Judge Kezia O. L. Taylor in this matter on November 18, 2024. (Docket No. 71). The
R&R recommends that the Motion to Dismiss Plaintiff’s Amended Complaint (Docket No. 46),
filed by Defendant Sgt. R. Fundark (“Sgt. Fundark”), be granted in part and denied in part. (Docket
No. 71 at 1, 12-13). Service of the R&R was made on pro se Plaintiff James A. Cogley (“Plaintiff”)
via U.S. Mail and on Sgt. Fundark electronically via CM/ECF, and the parties were informed that
any objections to same by registered CM/ECF users were due by December 2, 2024, while
objections to same by unregistered CM/ECF users were due by December 5, 2024. (Id. at 13 and
Docket text entry). Thereafter, neither party filed any objections to the R&R.
The Federal Rules of Civil Procedure provide that a party may file specific written
objections to the proposed findings and recommendations of a magistrate judge, and a district
judge must conduct a de novo review of any part of the R&R that has been properly objected to.
See Fed. R. Civ. P. 72(b)(2), (3); 28 U.S.C. § 636(b)(1). Here, however, because neither party has
filed any objections to the R&R, which explicitly stated that failure to file timely objections “will

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constitute a waiver of any appellate rights” (Docket No. 71 at 13), we review the magistrate judge’s
decision for plain error. See Brightwell v. Lehman, 637 F.3d 187, 193 (3d Cir. 2011) (citing Nara
v. Frank, 488 F.3d 187, 194 (3d Cir. 2007)); see also Fed. R. Civ. P. 72(b) advisory committee’s
note to 1983 addition (“When no timely objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record in order to accept the recommendation.” (citing
Campbell v. U.S. Dist. Ct. for N.D. Cal., 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879
(1974))).
In this case, upon careful review of the R&R, Plaintiff’s Amended Complaint (Docket No.
43)1, and the entire record, the Court, finding no plain error on the face of the record, will accept
Judge Taylor’s recommendation. As such, the Court will adopt the R&R as the Opinion of the
Court, and will grant in part and deny in part Sgt. Fundark’s motion to dismiss the Amended
Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), as set
forth more fully therein. In so ruling, the Court agrees with Judge Taylor’s determination that, as
to Plaintiff’s Fourth Amendment excessive force claim, Sgt. Fundark is not entitled to qualified
immunity at this early stage of the case, but he is not precluded from reasserting qualified

Plaintiff’s 48-page Amended Complaint, although filed as one document, is comprised of three separate and
distinct amended complaints, titled “Amended Complaint Part - A,” “Amended Complaint Part - B,” and “Amended
Complaint Part - C,” with each part containing claims against various defendants including Sgt. Fundark. (Docket
No. 43). After the defendants filed motions to dismiss the Amended Complaint, Plaintiff moved to voluntarily dismiss
from this action all the defendants except for Sgt. Fundark, and the Court granted Plaintiff’s motion. (See Docket No.
58, Order granting Plaintiff’s Motion to Voluntarily Dismiss all Defendants except for Defendant Fundark). In Sgt.
Fundark’s separately filed motion to dismiss and brief (which were filed before the other defendants were dismissed),
he requests dismissal of Parts B and C of the Amended Complaint since those parts make no allegations against him.
(Docket Nos . 46, ¶ 7; 47 at 16-17). In response to Sgt. Fundark’s motion to dismiss, Plaintiff concedes that Part A is
the only part of the Amended Complaint that relates to Sgt. Fundark. (See Docket Nos. 46, ¶ 6; 56, ¶ 6). Given that
the three sections of Plaintiff’s Amended Complaint deal with three distinct events, Judge Taylor recommends, for
housekeeping purposes, that Plaintiff’s Amended Complaint be comprised of Part A only. (Docket No. 71 at 2-3 n.1).
In light of these events and the nature of the Amended Complaint, the Court agrees with Judge Taylor and
notes that, for purposes of Docket clarity, since all the defendants other than Sgt. Fundark have been dismissed from
this case, since the claims alleged against those defendants in Parts B and C of the Amended Complaint have also
been dismissed, and since the allegations in Parts B and C of the Amended Complaint do not relate to Sgt. Fundark,
accordingly, Part A of the Amended Complaint, which relates to Sgt. Fundark, is the operative remaining
portion of the Amended Complaint.
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immunity, if appropriate, at a later stage of the litigation. (Docket No. 71 at 6-10). The Court also
agrees with Judge Taylor that Plaintiff’s state law negligence claims should be dismissed because
Sgt. Fundark is entitled to immunity under Pennsylvania’s Political Subdivision Tort Claims Act
(“PSTCA”), 42 Pa. C.S.A. § 8541 et seq., and such claims should be dismissed with prejudice
because amendment thereto would be futile. (Docket No. 71 at 10-11). The Court further agrees
that Sgt. Fundark’s motion should be denied to the extent it seeks dismissal of Plaintiff’s state law
assault and battery claim based on immunity under the PSTCA, since assault and battery is an
intentional tort to which immunity under the PSTCA does not extend. (See id. at 11). Additionally,
the Court agrees with Judge Taylor that, to the extent Plaintiff seeks to state a Monell claim against
Sgt. Fundark in his official capacity (under Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S.
658 (1978)), that claim should be dismissed since Plaintiff has not identified any policy or custom
that deprived him of a constitutional right, although such claim should be dismissed without
prejudice so that Plaintiff may amend that claim, if appropriate. (Docket No. 71 at 11-12).
Accordingly, in view of the foregoing, the Court enters the following Order:

AND NOW, this 7th day of January, 2025,
IT IS HEREBY ORDERED that the R&R (Docket No. 71) is ADOPTED as the Opinion
of the Court.
For the reasons set forth in the R&R, IT IS FURTHER ORDERED that Sgt. Fundark’s
Motion to Dismiss Plaintiff’s Amended Complaint for failure to state a claim pursuant to Rule
12(b)(6) (Docket No. 46) is granted in part and denied in part. Accordingly:
1. The motion is granted as to Plaintiff’s state law negligence claims, and those claims
are dismissed with prejudice.

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2. The motion is denied as to Plaintiff’s Fourth Amendment excessive force claim and
his state law assault and battery claim.
3. The motion is granted as to Plaintiff’s Monell claim, and that claim is dismissed
without prejudice to amendment, if appropriate.
4. If Plaintiff wishes to file a Second Amended Complaint to correct the substantial
pleading deficiencies identified in the R&R as to his Monell claim, he shall do so, in a
pleading that fully alleges every claim he wishes to pursue against Sgt. Fundark and
that stands by itself without reference to the original or Amended Complaint, by
January 28, 2025, in which case Sgt. Fundark shall respond thereto by February 18,
2025. If Plaintiff does not file a Second Amended Complaint in accordance with this
Memorandum Order by January 28, 2025, then his Monell claim will be dismissed
with prejudice, and Sgt. Fundark shall respond to the remaining claims in the
Amended Complaint by February 18, 2025.

/s/ W. Scott Hardy
W. Scott Hardy
United States District Judge

cc/ecf:

James A. Cogley (via U.S. Mail)
All counsel of record

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