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Richard Banks, et al v. Karen Gallagher

February 22, 2010

RICHARD BANKS, ET AL., PLAINTIFFS,
v.
KAREN GALLAGHER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court is the report and recommendation of Magistrate Judge Malachy E. Mannion. (Doc. 151.) The report recommends that plaintiff Banks's motion for partial summary judgment (Doc. 62) be denied, that plaintiff McCarren's motion for partial summary judgment (Doc. 63) be denied, that plaintiff Meyer's motion for partial summary judgment (Doc. 64) be denied, and that defendants' motion for partial summary judgment (Doc. 71) against plaintiff Kraft be granted. The report further recommends that plaintiff Kraft be granted leave to amend the complaint only for the purpose of specifying that defendants Mariano and Gallagher are being sued in their individual capacities.

I. Background

The facts of this case have been exhaustively described in previous orders. Briefly, the claims in this action arose out of events occurring on May 9, 2008 at an Old Country Buffet restaurant in Dickson City. A group of individuals, including the plaintiffs, arrived at the family dining establishment at around 6:30 p.m. Several were openly carrying firearms. Eventually, the police were called and questioned some in the group in the restaurant's vestibule. Plaintiff Banks was arrested, handcuffed, and placed in the back of a police car.

The plaintiffs contend that they were illegally detained. They brought this action*fn1 pursuant to 42 U.S.C. § 1983 against two Dickson City police officers, the chief of police, and the Dickson City Borough, asserting that their rights under the First, Fourth, Fifth and Fourteenth Amendments were violated.

Three of the plaintiffs and the defendants cross-moved for partial summary judgment. The magistrate judge submitted a report and recommendation disposing of the four motions for partial summary judgment.

Only plaintiff Richard Banks has filed written objections to the report and recommendation. The defendants have responded to his objections. For the reasons stated below, the report and recommendation will be adopted in part and rejected in part.

II. Discussion

A. Legal Standard for Reviewing a Report and Recommendation

Where objections to the 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 district 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 for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376--77 (M.D. Pa. 1998).

Here, the court reviews the portions of the report and recommendation which Banks objects to de novo. The remainder of the report and recommendation is reviewed for clear error.

B. Legal Standard for Summary Judgment

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). 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. Fed. R. Civ. P. 56(c)(2). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248. 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 2D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the court that "the nonmoving party has failed to make a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256--57. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

C. Plaintiff Banks's Objections Will be Overruled

Banks objects to the portion of the report holding that genuine issues of material fact preclude summary judgment on whether Banks was unreasonably seized. He argues that the magistrate judge erred for several reasons; first, he incorrectly stated that Banks did not argue that there was a detention when he was asked for his identification; second, he erred in holding that a fact issue exists as to when or whether Banks was seized in the restaurant's vestibule; third, he disagrees with the portion of the opinion distinguishing two cases; and finally, he objects to the portion of the report concluding that a reasonable factfinder could find that the officers had reasonable suspicion that criminal activity was afoot. Furthermore, the plaintiff objects to the portion of the report concluding that the defendants could have had probable cause to arrest Banks for disorderly conduct and failure to provide identification.

1. Denying Summary Judgment on the Initial Seizure is Appropriate

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Fourth Amendment is incorporated against the states through the Due Process ...


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