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Pilchesky v. Miller

October 10, 2006

JOSEPH AND JOANNE PILCHESKY, PLAINTIFFS,
v.
JEFFREY B. MILLER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court are Magistrate Judge Thomas M. Blewitt's Report and Recommendation (Doc. 59), Defendants' Objections to the Magistrate Judge's Report and Recommendation (Doc. 60), and Plaintiffs' Objections to Recommendations on Motions to Dismiss (Doc. 62). For the reasons set forth below, the Court will adopt in part and reject in part the Report and Recommendation.

BACKGROUND

a. Factual Background

The Second Amended Complaint states that the Plaintiffs operated a non-commercial website message board, www.dohertydeceit.com, the purpose of which was to give community members a forum to discuss local (i.e., Scranton, Pennsylvania and vicinage) politics and politicians. (Doc. 40 p. 6.) On that website, community members could specifically discuss Scranton's Director of the Office of Economic and Community Development, Sara Hailstone. (Doc. 40 p. 7.) In either September or early October 2005, the Plaintiffs posted the following on their website:

Who is Sara Hailstone? She's the Executive Director of OECD, and much, much more. Qualifications to be the Executive Director of OECD? None. Responsibilities: Handle tens of millions of dollars, among other things. When recently asked for records by a taxpayer group, she sent a written response that stated, "I refuse." Sara knows where millions of dollars went, and she's the only one who knows. She keeps her lips tight . . . sort of.

(Doc. 40 p. 7.)

On October 3, 2005, the Plaintiffs posted another message, entitled "Wanted: Info. On Hailstone," which stated "Everything and anything. Who is she dating? Has dated? Relations with Doherty? Email me if necessary. Confidentiality assured." (Doc. 40 p. 7-8.)

The Plaintiffs claim that, on October 5 and 7, 2005, in response to the postings, Sara Hailstone's brother, A. James Hailstone, an attorney, conferred with Defendants Talerico and Fozard, who agreed to assist in removing references to Sara Hailstone from the Plaintiffs' website. (Doc. 40 p. 8.) On October 7, 2005, Hailstone's father, Andrew Hailstone, also an attorney, sent a letter to the Plaintiffs on his law firm's letterhead that demanded that the Plaintiffs remove the threatening language relating to Sara Hailstone from their website. Id. On the same day, Plaintiff Joseph Pilchesky sent a fax to Andrew Hailstone, stating that Hailstone should point out the threatening language, and, if the Plaintiff agreed it was threatening, he would take it off the message board. (Doc. 40 p. 9 and Ex. B p. 1.)

On October 6 and 7, 2005, A. James Hailstone allegedly contacted the Plaintiffs' web hosting company, Sparklit Enterprises, Inc. ("Sparklit"), requesting that the entire message board be shut down, which Sparklit did not do. (Doc. 40 p. 9.) Allegedly, Defendant Talerico then called Sparklit to ask it to shut down the message board, which Sparklit again did not do. (Doc. 40 p. 9.)

The Second Amended Complaint states that Defendant Fozard then sent Sparklit a letter requesting it to shut down the message board, "at least temporarily," because of a criminal investigation involving the "harassing posts" it contained. (Doc. 40 p. 10 and Ex. C.) On October 7, 2005, Sparklit responded to Defendant Fozard's letter by shutting down the Plaintiffs' website. (Doc. 40 p. 10.) Defendant Fozard contacted Sparklit on December 22, 2005, after the filing of the initial and First Amended Complaint, to inform it that the criminal investigation had ended. The Plaintiffs' website was reopened in response to the ending of the investigation. (Doc. 40 p. 12.)

b. Procedural History

On October 12, 2005, the Plaintiffs filed their original civil rights action, naming as Defendant the Pennsylvania State Police Department("PSP"). (Doc. 1.) On December 21, 2005, the Plaintiffs filed their First Amended Complaint, adding as Defendants Jeffrey B. Miller, Ralph M. Periandi, Joseph R. Marut, Robert Evanchick, and Derek Fozard, and removing the Pennsylvania State Police Department as a Defendant. (Doc. 16.) On March 7, 2006, the Plaintiffs filed their Second Amended Complaint, adding to the list of Defendants Michael McTavish, Gregory Mitchell, Frank Pawlowski, Brett Waggoner, Andrew Jarbola, and Eugene Talerico. (Doc. 40.)

In response, on March 28, 2006, the PSP Defendants (Michael McTavish, Gregory Mitchell, Frank Pawlowski, Brett Waggoner, Robert Evanchik, Derek Fozard, Joseph Marut, Jeffrey Miller, and Lt. Colonel Ralph Periandi) and the District Attorney's Office of Lackawanna County ("D.A.") Defendants (Andrew Jarbola and Eugene Talerico) separately filed Motions to Dismiss the Second Amended Complaint. (Docs. 41 & 42, respectively.) On April 7, 2006, the D.A. Defendants filed a Brief in Support of their Motion to Dismiss. (Doc. 45.) On April 11, 2006, the PSP Defendants filed their Brief in Support of their Motion to Dismiss. (Doc. 46.) On May 8, 2006, the Plaintiffs submitted their Brief in Opposition to both of the sets of Defendants' Motions to Dismiss, in response to which the two sets of Defendants timely filed separate Reply Briefs. (Docs. 55 & 56.)

On August 8, 2006, Magistrate Judge Thomas M. Blewitt issued his Report and Recommendation. (Doc. 59.) Defendants' Objections to the Report and Recommendation was filed on August 22, 2006. (Doc. 60.) On that same day, Plaintiffs' Objections to the Recommendations on Motions to Dismiss was filed. (Doc. 62.)

On September 6, 2006, Plaintiffs' Response to Defendants' Objections to the Report and Recommendation was filed. (Doc. 69.) On September 11, 2006, both the Defendants' Reply in Support of their Objections to the Report and Recommendation and the Defendants' Response to the Plaintiffs' Objections to the Recommendations on Motions to Dismiss were filed. (Docs. 70 & 71, respectively.)Plaintiffs' Reply Brief to the PSP Defendants was filed on September 15, 2006. (Doc. 72.) Plaintiffs' Reply Brief to the DA Defendants was filed on September 20, 2006. (Doc. 73-1.)

This motion is fully briefed and ripe for disposition.

LEGAL STANDARD

a. Standard of Review of Magistrate Judge's Report and Recommendation

Where objections to a magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. §636(b)(1)(C)), provided the objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984).In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions of the report for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).

b. Motion to Dismiss Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting all factual allegations in the complaint as true and "drawing all reasonable inferences in the plaintiffs' favor, no relief could be granted under any set of facts consistent with the allegations in the complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.1998).

In deciding a motion to dismiss, a court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993). The court may also consider "undisputedly authentic" documents where the plaintiffs' claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir.1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Marion School District, 132 F.3d 902, 906 (3d Cir.1997).

When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court does not consider whether the plaintiff will ultimately prevail. See id. In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). The defendant bears the burden of establishing that the plaintiff's complaint fails to state a claim upon which relief can be granted. See Gould Electronics v. United States, 220 F.3d 169, 178 (3d Cir.2000).

c. Section 1983 Standard

In a civil rights action brought under 42 U.S.C. § 1983, the plaintiff must prove the following two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived the plaintiff of rights, privileges or immunities secured by the laws or Constitution of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981); Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993). Further, § 1983 is not a source of substantive rights. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002). Rather, it is a means to redress violations of federal law by state actors. Id. See also Holocheck v. Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 498-99 (M.D. Pa. 2005).

It is well established that personal liability under § 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, 451 U.S. 527. It is also well settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint's allegations, to have been personally involved in the events or occurrences upon which Plaintiffs' claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998), "[a] defendant in a civil rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal involvement can be ...


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