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Stivala v. Smith

June 25, 2007

MARTIN F. STIVALA, PLAINTIFF
v.
JOSEPH SMITH AND KEVIN WHARTON, DEFENDANTS



The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court

(Chief Judge Kane)

MEMORANDUM

Before the Court are Defendants' motion for summary judgment (Doc. No. 16), Magistrate Judge Smyser's Report and Recommendation (Doc. No. 27), and Plaintiff's objections thereto (Doc. No. 31). Also before the Court is Defendants' motion for leave to file a supplemental motion for summary judgment. (Doc. No. 28.)

I. BACKGROUND

A. Procedural Background

On March 8, 2006, Plaintiff filed a complaint in this Court alleging violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights and various Pennsylvania constitutional rights. (Doc. No. 1.) In his complaint, Plaintiff named three defendants:

(1) Pennsylvania Board of Probation and Parole ("the Board"); (2) Joseph Smith, District Director for the Scranton District Office of the Board; and (3) Kevin Wharton, a parole agent. On May 18, 2006, Defendants Smith and Wharton filed an answer to the complaint with affirmative defenses. (Doc. No. 9.) Also on May 18, 2006, the Board filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds of sovereign immunity. (Doc. No. 8.) Plaintiff concurred with the Board's motion, and Magistrate Judge Smyser dismissed the Board as a party on May 19, 2006. (Doc. No. 10.) Thus, only Smith and Wharton remain as defendants in this case.

On October 2, 2006, Defendants Smith and Wharton filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. No. 16.) The parties briefed the motion. (Doc. Nos. 17-22.) On January 11, 2007, Magistrate Judge Smyser issued a report recommending that Defendants' motion for summary judgment be granted. (Doc. No. 27.) However, Magistrate Judge Smyser recommended that summary judgment not be entered in favor of Defendants on Plaintiff's Sixth and Eighth Amendment claims because Defendants did not address those issues in their motion for summary judgment. (Id.)

Following the report and recommendation, on January 19, 2007, Defendants filed a motion for leave to file a supplemental motion for summary judgment addressing Plaintiff's Sixth and Eighth Amendment claims (Doc. No. 28) and Plaintiff filed objections to Magistrate Judge Smyser's report and recommendation pursuant to Local Rule 72.3 (Doc. No. 31). Both have been fully briefed (Doc. Nos. 29, 30, 36-42) and are ripe for disposition.

B. Factual Background

Plaintiff Martin Stivala is a parolee. He was convicted of an arson-related charge in 1991, sentenced to a term of imprisonment of four to twelve years, and paroled in 1999. On November 4, 2003, Plaintiff was arrested in Scranton, Pennsylvania, upon allegations that he drove his vehicle into Christopher Albright, the brother of Plaintiff's former best friend, Richard Albright.*fn1 Plaintiff was charged with aggravated and simple assault related to the incident, and the Board placed a detainer against him. After an administrative conference between Plaintiff and Defendant Smith held on November 10, 2003, Smith imposed special conditions on Plaintiff as a result of the incident. The special conditions included: (1) an increase in the frequency of Plaintiff's reporting requirement; (2) electronic monitoring; (3) a curfew; (4) a restriction on Plaintiff's permission to drive; and (5) a blanket prohibition against any contact with Christopher Albright or his brother, Richard Albright. On November 26, 2003, the charges against Plaintiff were dropped.

In early March 2004, Defendant Smith received a phone call from Richard Albright. During that phone call, Richard Albright claimed that Plaintiff Stivala continued to harass Christopher Albright. Later that day and at the direction of Defendant Smith, Defendant Wharton arrested Plaintiff.

On March 10, 2004, Plaintiff was charged with two counts of technical violations of his parole. Count I was based upon the November 3, 2003, car incident between Plaintiff and Christopher Albright. The second count was based upon an incident that occurred in 2000 between Plaintiff and Robert McAndrew.*fn2 On March 16, 2004, Hearing Officer Patrick McCrone held a preliminary hearing, after which he concluded that there was probable cause to bind Plaintiff over on both charges. Plaintiff was incarcerated from March 9 until May 13, 2004.

On April 12, 2004, at the request of McAndrew, Count II was withdrawn. On April 27, 2004, a violation hearing was to be held on the merits of Count I, but was continued. On May 13, 2004, the Board rendered a decision to reinstate ...


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