IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
September 30, 2010
ANDRE LAMONT CROMWELL, PLAINTIFF
MICHAEL MANFREDI, OFFICER OF SOUTH STRABANE POLICE DEPARTMENT, SOUTH STRABANE TOWNSHIP, WASHINGTON, PA; CARL MARTIN, OFFICER OF CITY OF WASHINGTON POLICE DEPARTMENT, WASHINGTON COUNTY, PA; JOHN C. PETTIT, FORMER WASHINGTON COUNTY DISTRICT ATTORNEY, WASHINGTON, PA; PATRICK LEARY, STATE POLICE OFFICER OF WASHINGTON COUNTY PA STATE POLICE BARRACKS, WASHINGTON, PA; KENNETH WESTCOTT, THEN MAYOR OF CITY OF WASHINGTON PENNSYLVANIA; CITY OF WASHINGTON PENNSYLVANIA; STATE POLICE DEPARTMENT OF WASHINGTON COUNTY PENNSYLVANIA; CITY OF WASHINGTON POLICE DEPARTMENT WASHINGTON COUNTY PENNSYLVANIA;
The opinion of the court was delivered by: Judge Joy Flowers Conti
Chief Magistrate Judge Amy Reynolds Hay
Re: ECF Nos. 102, 121, & 125
The above-captioned pro se prisoner civil rights action was received by the Clerk of Court on July 28, 2008, and was referred to the now Chief United States Magistrate Judge Amy Reynolds Hay for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and the then in-force local rules.
The Chief Magistrate Judge filed a report recommending the grant of Defendants' motions to dismiss the amended complaint for failure to state a claim upon which relief can be granted. Docket No. 90. Over the objections of the Plaintiff, the Report was adopted and the complaint was dismissed, albeit without prejudice to Plaintiff's right to file an amended complaint within a time certain. Docket No. 92. Plaintiff filed a second amended complaint. Docket No. 99. The Defendants again filed motions to dismiss the second amended complaint. On September 7, 2010, the Chief Magistrate Judge again filed a Report and Recommendation, Docket No. 128, that recommended the case be dismissed because the second amended complaint failed to state a claim upon which relief could be granted. The Plaintiff was informed that in accordance with the Magistrate Judges Act, 28 U.S.C.§ 636(b)(1)(B) and (C), the local rules, he had a specific period of time in which to file his objections. Plaintiff filed his objections. Docket No. 129.
None of the objections merits rejection of the Report or extended comment.
Plaintiff complains that "it appears now that the court is holding the defendants' manfredi [sic] and martin's testimony credible which had to be based on pure conjectural [sic] for the fact that pursuant to the record of the preliminary hearing testimony by both defendants' [sic] there is no accurate testimony in regards to why plaintiff needed to be stopped and Most [sic] importantly the defendants' possessed no information that plaintiff was engaging in or had engaged in any illegal activity or that plaintiff was presently armed and dangerous at the time plaintiff was encountered to warrant the defendant's intrusion." Docket No. 129 at 1. The Report nowhere makes any credibility determinations regarding Defendants; rather, the Report simply found that there was no seizure for Fourth Amendment purposes because Plaintiff never was touched and did not comply with verbal commands. Those facts are reflected in the amended complaint and the Report is legally correct that no seizure occurred under controlling federal precedent, California v. Hodari D., 499 U.S. 621 (1991), irrespective of what state law might find constitutes a seizure for purposes of the state constitution's analogue to the Fourth Amendment. Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996)(rejecting Hodari D. test for seizure under the state constitution).
Plaintiff's argument that "had defendant manfredi's [sic] life been significantly threatened, he would've discharged his firearm himself" Docket No. 129 at 2, for the inference that neither of the officers' lives were threatened by Plaintiff's actions in driving the car toward them or toward one of them is simply foreclosed by his plea of guilty to two counts of Recklessly Endangering Another Person, as correctly pointed out by the Report. The Report in no way credited the account of Defendants in so holding, but simply gave preclusive effect to Plaintiff's guilty plea as the Report should have.*fn1
The court will not further engage Plaintiff's objections because the Report relied upon qualified immunity as one of its alternative bases to recommend dismissal of this case. Plaintiff's objections fail to address this particular holding in any way. The qualified immunity defense, to which Plaintiff specifically failed to object, is sufficient to sustain the dismissal of the complaint.
After de novo review of the pleadings and the documents in the case, together with the Report and Recommendation and objections, the following order is entered:
AND NOW, this ____ day of ___________, 2010;
IT IS HEREBY ORDERED that Defendants' Motions to Dismiss are GRANTED and the complaint is dismissed with prejudice as any further amendment would be futile.
IT IS FURTHER ORDERED that the Report and Recommendation, Docket No. 128, filed on September 7, 2010 by Chief Magistrate Judge Hay, is adopted as the opinion of the court. Any other pending motions are DENIED as moot. The Clerk is to mark the case closed.
Joy Flowers Conti United States District Judge
Honorable Amy Reynolds Hay Chief U.S. Magistrate Judge