The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
Andre Jacobs ("Plaintiff") commenced this civil rights suit with the receipt of a complaint by the Clerk of Court on February 23, 2007 (Docket No. 1). The matter was referred to a United States Magistrate Judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules 72.C and 72.D of the Local Rules for Magistrate Judges. The case was later assigned to another magistrate judge.
The magistrate judge's Report and Recommendation, filed on August 26, 2010 (Docket No. 94), recommended that the motion for judgment on the pleadings filed by defendants Costello, Cesarino-Martin, and Toriano (Docket No. 74) ("DOC Defendants") be converted into a motion for summary judgment in some respects, and granted with respect to all claims save for the those against defendant Toriano premised upon his alleged failure to intervene in defendant Delano's alleged "choking" of Plaintiff. Plaintiff timely filed objections. (Docket No. 96).
Plaintiff's first two objections are premised on the assertion that the magistrate judge, and this court, erred in finding that Plaintiff was collaterally estopped and barred by Heck v. Humphries, 512 U.S. 477 (1994), from claiming that defendants used, or failed to intervene in the use of, excessive force against Plaintiff during events on the afternoon of March 3, 2005, for which Plaintiff was convicted of "Assaulting, Resisting or Impeding a Federal Employee," pursuant to 18 U.S.C. § 111(a)(1) and (b).*fn1 Specifically, Plaintiff argues that this criminal conviction touches on only whether excessive force was used prior to or during his assault, resistance, or impedance of a federal employee, and that any force used after he was subdued on March 3, 2005, is not estopped or barred. (Docket No. 96 at 1-2). Plaintiff argues that a holding by this court that is contrary to the above argument would be precluded by the findings of this court in a prior case involving Plaintiff. See Jacobs v. Beard, No. 04-1592 (W.D.Pa. filed Oct. 18, 2004). Third, Plaintiff argues that Plaintiff's pending motion for reconsideration before this court (Docket No. 81), which seeks reconsideration of the order of this court (Docket No. 78) adopting the magistrate judge's Report and Recommendation of March 3, 2010 (Docket No. 76), and holding that Plaintiff's claims stemming from the aforementioned incident were estopped and barred, invalidates the Report and Recommendation of August 26, 2010 (Docket No. 94).*fn2 The arguments for these two objections ultimately relate to the same issue, and should be addressed together.
Plaintiff's arguments with respect to the collateral estoppel and Heck bar of his claims relating to the March 3, 2005 incident were thoroughly addressed by the magistrate judge in the Report of August 26, 2010 (Docket No. 94 at 6-7), as well as in the Report of March 3, 2010 (Docket No. 76 at 6-9), the latter of which has been adopted as the opinion of this court (Docket No. 78). Furthermore, the ruling of this court in the prior case of Jacobs v. Beard is based on facts that are distinct to that case. As such, these two arguments in support of Plaintiff's first two objections are unpersuasive at this time.
The ultimate disposition of Plaintiff's pending motion for reconsideration (Docket No. 81) could affect the holdings in this order. Thus, while this court will deny Plaintiff's current objections to the magistrate judge's findings with respect to the collateral estoppel and Heck bar issues in her Report of August 26, 2010, this court will entertain a motion for reconsideration on these issues, should its holding in the pending motion for reconsideration (Docket No. 81) be beneficial to Plaintiff's case.
Plaintiff's next objection to the Report and Recommendation (Docket No. 94) is based on the treatment of some aspects of DOC Defendants' motion for judgment on the pleadings (Docket No. 74) as a motion for summary judgment. Plaintiff argues that his right to due process was violated by addressing that motion in such a manner, because it was done without first giving notice to Plaintiff. (Docket No. 96 at 2). Plaintiff asserts that he was denied the ability to make arguments incorporating the proper legal standards. (Docket No. 96 at 2-3).
When a motion to dismiss is converted into a motion for summary judgment, a court must provide notice and opportunity to respond to a nonmoving party.*fn3 Berry v. Klem, 283 Fed. Appx. 1, 3 (3d Cir. 2008). In the case sub judice, notice and opportunity to respond were given to Plaintiff during the objections period between the filing of the Report by the magistrate judge and the filing of his objections of this order. The duration of time between the filing of the Report and Recommendation, August 26, 2010, and the date on which Plaintiff's objections were due, September 24, 2010, was thirty days. Even if, as Plaintiff implies, he did not receive the Report until September 6, 2010, see Pl.'s Mot. for Extension of Time, he still had eighteen days to respond with objections. Plaintiff had notice and ample opportunity to respond. See Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998) (finding that the ten-day time period for filing objections to a magistrate judge's report and recommendation provided adequate notice and opportunity to respond to that court's sua sponte grant of summary judgment).
Furthermore, the rationale for the conversion of these aspects of DOC Defendants' motion for judgment on the pleadings into a motion for summary judgment is based upon the magistrate judge's Report of March 3, 2010 (Docket No. 78), which was adopted as the opinion of this court on March 25, 2010 (Docket No. 78). Plaintiff submitted multiple filings containing substantive arguments attacking the reasoning of that Report on the issue in question. (See Docket Nos. 81 and 90). This court finds that Plaintiff had a fair opportunity to contest this particular issue, as required by the Supreme Court in Celotex Corp. v. Cartett, 477 U.S. 317, 326 (1986). As such, Plaintiff's assertion of a due process violation with respect to this issue is unpersuasive.
Plaintiff argues that he "is not certain whether [D]efendant Cesarino-Martin or others used force on [him] during that March 3,  incident." (Docket No. 96 at 3) (emphasis in original). This issue was addressed thoroughly by the magistrate judge in her Report. (Docket No. 94 at 10-11). Even if Plaintiff were able to show that defendants Cesarino-Martin and/or Toriano had been involved in the use of force against Plaintiff in the elevator, either by engaging in the physical subdual of Plaintiff or by failing to intervene in the same, no liability would attach under § 1983 because, for the reasons stated above and in the Report, no constitutional violation took place during that incident. Id. at 7-11.
Plaintiff argues that the magistrate judge erred in determining whether DOC Defendants were acting within the scope of their employment, presumably with respect to his state-law battery claim. (Docket No. 96 at 3); Report (Docket No. 94 at 13). Plaintiff asserts that, under Pennsylvania law, whether an individual is acting within the scope of his or her employment is a question of fact to be decided by a jury. See, e.g., Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1276 (3d Cir. 1979). In order for there to be a jury question, there must be a factual dispute regarding the matter in issue. As the magistrate judge's Report indicated, when adjudicating a motion made pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (or pursuant to Rule 12(b)(6), for that matter), a court must assume that a plaintiff's well-pleaded factual allegations are true. See e.g., Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); see also Report (Docket No. 94 at 2). Under this standard, there can logically be no issue of fact with respect to Plaintiff's claims. A court must examine a plaintiff's factual allegations and determine whether they, taken as true and viewed in the light most favorable to the plaintiff, "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 127 S.Ct. 1937, 1949 (2009). If the factual allegations do not support this reasonable inference, and leave to amend would be futile, then the claims that they underlay must be dismissed as a matter of law.
For the purpose of sovereign immunity in Pennsylvania, the test for whether an action of a state employee falls within the scope of ...