The opinion of the court was delivered by: Judge Conner
Presently before the court are the reports and recommendations (Docs. 78, 79) of the magistrate judge concerning the disposition of: (1) defendant Trooper Curt A. Szczecinski's ("Szczecinski") motion for summary judgment (Doc. 32) and motion to strike (Doc. 52); (2) defendant CT Corporation, t/d/b/a Mohegan Sun at Pocono Down's ("Mohegan Sun") motion for summary judgment (Doc. 45) and motion to strike (Doc. 60); and (3) plaintiff Richard Piazza's ("Piazza") motion for partial summary judgment (Doc. 40). Szczecinski and Piazza have filed objections (Docs. 80, 82) to the magistrate judge's reports. For the reasons set forth below, the court will adopt the reports and recommendations in part and reject them in part.*fn1
I. Factual Background & Procedural History*fn2
In the early evening hours of September 22, 2007, Piazza arrived at the Mohegan Sun Casino with his wife Marianne Piazza. (Id. ¶ 1). Kevin Martin ("Martin") and Kelly Wallick ("Wallick") were simultaneously patronizing the Mohegan Sun Casino. (Doc. 44 ¶ 2). Mohegan Sun video surveillance footage recorded the events at issue in this lawsuit. The footage shows the following:
1. Piazza is playing slots (6:50 p.m.).
2. On multiple occasions, Piazza looks toward his left in the general direction of Wallick and Martin, who are also playing slots (6:50:22, 6:50:35, 6:50:44, 6:50:49, 6:50:54, 6:51:01).
3. Martin gets up from his slot machine (6:51:11).
4. Martin crosses the aisle to a slot machine five seats to the left of the slot machine where Piazza is sitting (6:51:32).
5. Piazza looks toward his left in the direction of Wallick (6:51:39).
6. An envelope is plainly visible on Wallick's lap (6:51:39).*fn3
7. Wallick crosses the aisle towards Martin and drops the envelope (6:51:44).
8. Piazza looks toward his left in the direction of Wallick and Martin (6:51:59).
9. Piazza stands up, walks towards Wallick and Martin, and bends over to pick an object off the ground (6:52:04-6:52:07).
10. Piazza picks up the envelope (6:52:08).
11. Piazza walks back to his machine and immediately cashes out without speaking to any of patrons in the vicinity including Martin and Wallick (6:52:10-6:52:23).
12. Two casino employees walk into the area and Piazza looks in their general direction (6:52:11, 6:52:13).
13. Piazza walks away in the opposite direction of Wallick and Martin (6:52:24).
14. Piazza throws away the envelope in a trash can on another level of the casino (6:58:43).
(See Doc. 33, Ex. 3). After throwing out the envelope, Piazza put the gaming vouchers on his money roll and continued to gamble at two different slot machines. (Doc. 33 ¶ 21; Doc. 48 ¶¶ 21-22). Pizza knew the envelope contained gaming vouchers and knew the envelope did not belong to him. (Doc. 48 ¶¶ 6, 8). Piazza did not tell any Mohegan Sun employees that he was in possession of the vouchers or ask to be directed to Mohegan Sun's lost and found or security office. (Id. ¶¶ 19-20).
Shortly after Piazza picked up the envelope containing the vouchers, Wallick realized her vouchers were missing. (Doc. 44 ¶ 22). Wallick notified Mohegan Sun
security officer Kris Karnis ("Karnis") that her vouchers were missing. (Doc. 46, Ex. N at 2). Karnis contacted Dan Sepela ("Sepela"), a member of the Mohegan Sun surveillance department, to review the surveillance footage. (Doc. 46, Ex. N at 2). Sepela reviewed the surveillance footage described above. (Id.)
Mohegan Sun security personnel are required to report certain possible criminal behavior to the Pennsylvania State Police ("PSP") and these requirements are conspicuously posted at Mohegan Sun. (Doc. 48 ¶¶ 41-42). Theft is a crime that requires immediate notification to PSP. (Doc. 46, Ex. H). The PSP has jurisdiction to investigate and enforce the criminal provisions of the Commonwealth on the casino floor. 4 PA. CON. STAT. § 1517 (c) (2006) (subsequently amended Jan. 7, 2010).
Sometime after Wallick realized her vouchers were missing, Mohegan Sun personnel notified Pennsylvania State Police Trooper Szczecinski of a possible criminal incident.*fn4 (Doc. 48 ¶ 23).
Szczecinski investigated the possible criminal activity. The investigation involved watching the Mohegan Sun surveillance footage described above and taking statements from both Wallick and Martin. (Doc. 33 ¶¶ 33, 35-36). Mohegan Sun personnel located Piazza in the casino and Szczecinski and two other PSP troopers approached him. (Doc. 48 ¶ 27). Upon questioning, Piazza produced the gaming vouchers from his money roll and admitted that he had thrown out the envelope. (Doc. 33 ¶ 38). Szczecinski and the other troopers escorted Piazza to the trash can where Piazza had thrown out the envelope and Szczecinski recovered the envelope. (Id.) The troopers then took Piazza to a private room in the casino.*fn5
(Doc. 48 ¶ 30). At some point, Szczecinski fingerprinted and photographed Piazza.*fn6
(Doc. 33 ¶ 30). The total time Szczecinski spent with Piazza on September 22, 2007, was approximately five minutes. (Id. ¶ 49). After fingerprinting, Piazza was released and escorted out of the casino by unnamed PSP troopers. (Id. ¶ 30; Doc. 48 ¶ 36). According to Piazza, the entire encounter lasted ninety minutes. (Doc. 48 ¶ 36).
On June 8, 2009, Piazza filed suit against Mohegan Sun and the PSP asserting civil rights violations pursuant to 42 U.S.C. § 1983 and state tort law claims. (Doc. 1). On August 31, 2009, Piazza filed an amended complaint naming Mohegan Sun, the PSP, PSP Trooper Curt A. Szczecinski, and PSP Troopers John Does, Numbers One and Two as defendants. (Doc. 8). Piazza sued the PSP troopers in both their official and individual capacities. (Id. at 2-3). Mohegan Sun filed an answer with affirmative defenses on September 22, 2009, and the PSP, Szczecinski, and Troopers John Does Numbers One and Two (the "Commonwealth defendants") jointly filed a motion to dismiss plaintiff's amended complaint on September 24, 2009. (Docs. 10, 11).
On February 3, 2010, the magistrate judge issued a report recommending granting the Commonwealth defendants' motion to dismiss as to all claims except for Piazza's Fourth Amendment illegal search and seizure claim (Count One) and Piazza's § 1983 malicious prosecution claim (Count Three) against Szczecinski in his individual capacity. (Doc. 15). The magistrate judge also recommended remanding the case to him for further proceedings with respect to the remaining claims against Mohegan Sun and Szczecinski. (Id.) On February 26, 2010, Judge Vanaskie adopted the report and recommendation. (Doc. 16). After remand, Szczecinski filed an answer to Piazza's amended complaint. (Doc. 19).
After the close of discovery, Szczecinski filed a motion for summary judgment on the remaining two claims against him.*fn7 (Doc. 32). Piazza filed a cross motion for summary judgment on the illegal search and seizure claim. (Doc. 40). Szczecinski then filed a motion to strike certain paragraphs in Piazza's statement of material facts and certain exhibits submitted with Piazza's motion for partial summary judgment. (Doc. 52). The magistrate judge recommended granting Szczecinski's motion to strike in part and denying it in part. (Doc. 78, at 45). The magistrate judge further recommended granting Szczecinski's motion for summary judgment to the extent Piazza asserts a Fourth Amendment illegal search claim against Szczecinski,*fn8 and recommended denying both Piazza's and Szczecinski's motions for summary judgment with respect to Piazza's Fourth Amendment unlawful seizure claim. (Id.) Szczecinski filed objections to the magistrate judge's conclusion on Piazza's Fourth Amendment seizure claim. (Doc. 80).
Piazza and Mohegan Sun also filed cross-motions for summary judgment.
(Docs. 40, 45). Mohegan Sun then filed a motion to strike certain
paragraphs in Piazza's statement of material facts and certain
exhibits submitted with Piazza's motion for partial summary judgment.
(Doc. 60). The magistrate judge recommended granting Mohegan Sun's
motion to strike in part and denying it in part. (Doc. 79, at 44). The
magistrate judge further recommended granting Mohegan Sun's motion for
summary judgment and denying Piazza's summary judgment motion with
respect to Piazza's negligence and conspiracy claims.*fn9
(Doc. 78, at 44-45). Piazza filed objections to the
magistrate judge's conclusion that Mohegan Sun is entitled to summary
judgment on his negligence claim. (Doc. 82). The parties have fully
briefed the issues, and the matter is now ripe for
A. Standard of Review for Cross-Motions for Summary Judgment
Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(a). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(a). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
In the instant matter, the parties have filed cross-motions for summary judgment. (Docs. 32, 40, 45). According to the Third Circuit:
Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.
Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008) (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). Each movant must show that no genuine issue of material fact exists; if both parties fail to carry their respective burdens, the court must deny the motions. See Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d Cir. 2008). When reviewing each motion, the court is bound to view the evidence in the light most favorable to the non-movant. FED. R. CIV. P. 56; United States v. Hall, 730 F. Supp. 646, 648 (M.D. Pa. 1980).
B. Standard of Review for a Magistrate Judge's Recommendation
Where objections to a magistrate judge's report and recommendation are filed, the court must perform a de novo review of the contested portions of the report. Supinski v. United Parcel Serv., Civ. A. No. 06-0793, 2009 WL 113796, at *3 (M.D. Pa. Jan. 16, 2009) (citing Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(c)). "In this regard, Local Rule of Court 72.3 requires 'written objections which . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for those objections.'" Id. (citing Shields v. Astrue, Civ. A. No. 07-417, 2008 WL 4186951, at *6 (M.D. Pa. Sept. 8, 2008)).
When parties do not raise objections to a magistrate judge's report and recommendation, the Federal Magistrates Act does not require a district court to review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). As a matter of good practice, however, the Third Circuit expects courts to "afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). The advisory committee notes to Rule 72(b) of the Federal Rules of Civil Procedure indicate that "[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." FED. R. CIV. P. 72(b), advisory committee notes; see also Cruz v. Chater, 990 F. Supp. 375, 378 (M.D. Pa. 1998) (holding that the court's review is limited to ascertaining whether there is "clear error on the face of the record").
The sole objection to the magistrate judge's report and recommendation with respect to the motion to strike is to the magistrate judge's finding that the Mount Airy Casino sign and voucher are irrelevant. The exhibit relates to Piazza's negligence claim against Mohegan Sun. The court has performed a de novo review on this issue. No other objections relating to the ...