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Banks v. Gallagher

May 10, 2010

RICHARD BANKS, JUDY BANKS, ROGER MCCARREN, AND LARRY MEYER, PLAINTIFFS,
v.
KAREN GALLAGHER, ANTHONY MARIANO, WILLIAM STADNITSKI, AND DICKSON CITY BOROUGH, DEFENDANTS.
EDWARD J. KRAFT, JR., PLAINTIFF,
v.
KAREN GALLAGHER, ANTHONY MARIANO, AND DICKSON CITY BOROUGH, DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

(MAGISTRATE JUDGE MANNION)

MEMORANDUM

Presently before the Court are the Report and Recommendation ("R&R") of U.S. Magistrate Judge Mannion (Doc. 137), and Defendants Karen Gallagher ("Gallagher") and Anthony Mariano's ("Mariano") Objections to the R&R (Doc. 142). The R&R recommends that Defendant Mariano's Motion for Summary Judgment (Doc. 66) and Defendant Gallagher's Motion for Summary Judgment (Doc. 69) be granted in part and denied in part. The R&R will be adopted, and the motions will be granted in part and denied in part.

BACKGROUND*fn1

Plaintiffs Richard Banks ("Banks"), Julia Banks ("Mrs. Banks"), Larry Meyer ("Meyer"), and Roger McCarren ("McCarren") are members of a group of "open carry" gun advocates. Defendants Gallagher and Mariano are police officers for Dickson City Borough.

On May 9, 2008, Plaintiffs executed a plan to bring members of the group, armed, into the Old Country Buffet in Dickson City during the dinner hour. (Def. Mariano's Statement of Facts ¶ 1, Doc. 68.) After receiving numerous calls from patrons who were worried, Gallagher and Mariano were dispatched to the Old Country Buffet. Upon arrival, Defendants noticed several visibly armed individuals. After speaking with the officers, the members of the group accompanied the officers out into the vestibule for privacy. Defendants assert that they requested the group members to accompany them (Gallagher Dep. 93:5-10, Nov. 11, 2008), while Plaintiffs assert that they were ordered to follow (Larry Meyer Dep. 13:16-17, Nov. 13, 2008). At least one of the gun carrying group members simply chose to ignore Mariano's request and continued to sit at the table. (Meyer Dep., 14:4-7.) Once out in the vestibule, Defendants spoke with the Plaintiffs about why they were armed and reviewed the identification of at least some of the Plaintiffs. (Doc. 66, Ex. 4.)

Banks was not present at the table when the Defendant arrived, but was told that others had gone out to the vestibule so he followed. (Banks Dep. 50:8-10, Dec. 1, 2008.) While there, Banks asserted that the group members need not show weapons permits if they were openly carrying firearms. (Doc. 66, Ex. 4.) Mariano asserts that Banks refused to identify himself after numerous requests and was therefore taken into custody. (Mariano Dep. 53:7-13, Nov. 11, 2008.) Banks asserts that he verbally identified himself several times. (Banks Dep. 185:17-25.) Gallagher was the officer that handcuffed Banks. (Mariano Dep. 54:2-4.) After being handcuffed, Banks was disarmed, searched, and placed into Gallagher's patrol car. (Mariano Dep. 54:19-55:2; Banks Dep. 187:21-188:1.)

Meyer was at the table when Mariano asked everyone to go outside. (Meyer Dep. 13:4-10.) Meyer got up and went into the vestibule. (Meyer Dep. 13:20-21.) When in the vestibule, Meyer was told by Mariano that they were being detained. (Meyer Dep. 23:13-17.) Mariano also stated to him that refusing to identify yourself can result in an arrest. (Meyer Dep. 27:12-16.) After Gallagher handcuffed Banks, the remaining men gave Officer Mariano "all the ID that he wanted." (Meyer Dep. 27:20-22.) Meyer gave Mariano his license to carry. (Meyer Dep. 28:18-20.) No officers took down the serial weapon or otherwise seized Meyer's weapon. (Meyer Dep. 33:20-23.)

McCarren was in the vestibule with the other group members. (Meyer Dep. 23:12-18.) Gallagher first came over to McCarren and took him outside to get the serial number off his firearm. (Meyer Dep. 35:13-19.) At some point, Gallagher ran the serial number of McCarren's firearm which revealed that the weapon was registered to his wife. Gallagher then went to find McCarren, and told him that if someone was carrying a weapon, it needed to be registered to them. (Gallagher Dep. 120:9-17.) Gallagher asserts that she asked McCarren to step outside to discuss it with her. (Gallagher Dep. 121:20-22.) McCarren asserts that he was ordered outside. (McCarren Dep. 40:4-6.) Gallagher asserts that during this second encounter outside she asked McCarren to turn and face the wall so that she could retrieve the weapon from its holster. (Gallagher Dep. 123:22-124:5.) McCarren asserts that he was ordered against the wall. (McCarren Dep. 42:7-13.) After retrieving the weapon, Gallagher gave it to another officer who unloaded it and placed in Mariano's car. (Gallagher Dep. 123:22-124:5.)

LEGAL STANDARD

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 (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). 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) (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) (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 ...


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