The opinion of the court was delivered by: A. Richard Caputo United States District Judge
(MAGISTRATE JUDGE MANNION)
Presently before the Court are the Report and Recommendation ("R&R") of U.S. Magistrate Judge Mannion (Doc. 91), and Plaintiff Edward Kraft, Jr.'s Objections to the R&R (Doc. 95).*fn1 The R&R recommends that Kraft's Motion for Summary Judgment as to liability (Doc. 44) be denied. The R&R will be adopted, and the motion for summary judgment will be denied.
On May 9, 2008 Edward Kraft, Jr. ("Kraft") was at the Old Country Buffet in Dickson City along with other members of the Pennsylvania Firearm Owners Association. (Kraft Dep. 7:20-8:3, Nov. 14, 2008.) The 911 dispatcher was contacted with a report that two (2) males with firearms on their sides were at the Old Country Buffet. (Gallagher Dep. 50:13-19, Nov. 11, 2008.) The caller stated that the males were not doing anything wrong, but that the caller "felt this was wrong with children running around and requested police to check on it." (Police Report, May 9, 2008, Doc. 50, Ex. 4.) At around 6:30pm, Officers Karen Gallagher ("Gallagher") and Anthony Mariano ("Mariano") received the call to go to the Old County Buffet. (Gallagher Dep. 46:5-22.) At first, Mariano answered that they would not respond because no crime was being committed. (Mariano Dep. 10:10-19, Nov. 11, 2008.) After between one and a half to two minutes, they decided to take a ride down to check it out anyway. (Id. 11:7-18) Both officers were dressed in full police uniform. (Gallagher Dep. 48:3-19; Mariano Dep. 78:1-17.) Both arrived at the Old County Buffet in separate marked Dickson City patrol cars. (Gallagher Dep. 157:3-9.)
Upon arrival, there was a line of patrons extending out the door, and the restaurant was extremely packed. (Gallagher Dep. 82:21-25.) At that time there was no indication that anyone was drawing a firearm or threatening anyone. (Mariano Dep. 16:21-24.) Mariano and Gallagher did observe several males sitting at a table with firearms on their sides. (Gallagher Dep. 83:15-17.) They observed nothing else that was unusual or reasonably suspect, and did not feel that it was an emergency situation. (Mariano Dep. 88:5-13.) Mariano wanted to tell the group why the officers were there so he politely asked them to come outside to the vestibule to speak to him. (Id. 25:13-26:14.) At least one of the gun carrying group members simply chose to ignore the request of Mariano and continued to sit at the table. (Larry Meyer Dep., 14:4-7, Nov. 13, 2008.) Another group member was not present at the time Mariano spoke with the group, and after hearing of Mariano's presence he chose to walk to the vestibule. (Richard Banks Dep., 52:15-53:6, Nov. 13, 2008.) As the group went out, Mariano asked those who were carrying a concealed weapon to stand to his right while those with visible weapons should stand to his left. (Mariano Dep. 29:7-16.) Mariano was dealing with the concealed weapons group, while other officers from outside Dickson City handled the open carry group. (Id. 57:20-24.) Some of the men handed Mariano their driver's licenses or concealed weapons permits. (Mariano Dep. 50:3-23.) Gallagher ran the information from the driver's licenses through the communications center for identification purposes. (Gallagher Dep. 110:23-111:4.) Gallagher and Mariano also took the serial numbers off a few firearms. (Id. 114:15-24.) At some point, the group left the vestibule area and went outside under the overhang. (Id. 169:22-170:4.) It had started to drizzle as they went outside. (Mariano Dep. 94:21-24.) Plaintiff Judy Banks was video taping the occurrence and following the taping she left the vestibule and returned to her table. (Judy Banks Dep. 27:8-28:19, Nov. 13, 2008.)
At around the time Mariano went with the group outside, Gallagher saw Kraft in a booth with a firearm on his side. (Gallagher Dep. 84:8-17.) Gallagher asserts that she asked Kraft to walk out with the others and that he voluntarily did so. (Id. 84:20-23.) Kraft asserts that Gallagher demanded that he walk out. (Kraft Dep. 21:17-22:2.) Kraft also asserts that Gallagher demanded that he give her his driver's license. (Id. 51:13-21.) Gallagher asserts that she asked Mr. Kraft for his identification to carry a firearm. (Gallagher Dep. 171:12-19.) Kraft asserts that Gallagher demanded he produce his concealed weapons permit even though he was not carrying a concealed weapon. (Kraft Dep. 47:18-48:19.) Gallagher does not remember if Kraft asked her whether she was "asking" or "demanding" that he provide his information. (Gallagher Dep. 171:20-24.)
Police Chief William Stadnitski ("Stadnitski") had never had an issue like this arise in his thirty-seven years of law enforcement in Dickson City. (Stadnitski Dep. 31:10-32:6, Nov. 11, 2008.) By the time Chief Stadnitski learned about the incident, it was already finished. (Id. 24:17-22.) Chief Stadnitski never notified his officers prior to May 9, 2008, that it was lawful to carry a firearm in Pennsylvania (Id. 55:4-12.) Chief Stadnitski had occasional meetings with his officers, but did not address updates in the law. (Id. 55:13-21) Training was provided to new officers at the Borough level via one or two ride-along shifts with another officer. (Gallagher Dep. 23:14-22.) Dickson City had a policies and procedures manual (Stadnitski Dep. 9:10-13), but Gallagher had never seen it. (Gallagher Dep. 36:18-24.) Mariano was also not aware of any handbook of procedures. (Mariano Dep. 63:15-18.) The Borough does require that its officers complete their state Act 120 training. (Stadnitski Dep. 22:13-16.)
On June 20, 2008, Kraft filed this suit against Gallagher, Mariano, and Dickson City. (Case No. 08-cv-1177, Doc. 1.) On August 19, 2008, Magistrate Judge Mannion granted a motion to consolidate Kraft's case with the action brought by the other plaintiffs. (Doc. 15.) Kraft filed a motion for summary judgment on June 13, 2009. (Doc. 44.) On August 9, 2009, Magistrate Judge Mannion filed his R&R recommending that Kraft's motion be denied. (Doc. 91.) Kraft objected to the entirety of the R&R on August 18, 2009. (Doc. 95.) Both parties have fully briefed the motion and the R&R objections, and the motion is ripe for disposition.
I. Review of 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, 28 U.S.C. § 636(b)(1)(C), Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In 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. 28 U.S.C. § 636(b)(1)(C); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993) (McClure, J.). 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, 100 S.Ct. 2406, 65 L.Ed. 2d 424 (1980) ("Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations"); Goney, 749 F.2d at 6-7; Ball v. U.S. Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994) (Kosik, J.). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed. 2d 435 (1985) (the statute neither prevents nor requires a particular standard if no objections are filed); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998) (Vanaskie, J.) (citing Advisory Committee notes on Federal Rule of Civil Procedure 72(b), implementing 28 U.S.C. § 636(b)(1)(C)).
II. Motion for Summary Judgment
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the ...