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Marc Antwain X. Rivers Muhammad, Sr v. Cleatrice X. Dempsey

March 22, 2012

MARC ANTWAIN X. RIVERS MUHAMMAD, SR., PLAINTIFF,
v.
CLEATRICE X. DEMPSEY, ASYIA RIGSBYE, YORRII (SASKA) HARDING, LUZERNE COUNTY COURT OF COMMON PLEAS - ORPHANS' COURT DIVISION, THE SUPERIOR COURT OF PENNSYLVANIA AND THE SUPREME COURT OF PENNSYLVANIA, DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

(MAGISTRATE JUDGE SMYSER)

MEMORANDUM

Presently before the Court is Magistrate Judge Smyser's Report and Recommendation ("R & R") and Defendant Yurrii Safka Harden's*fn1 Objections. Magistrate Judge Smyser reviewed Ms. Harden's Motion to Dismiss and recommended that it be denied. Because Plaintiff Marc Antwain X. Rivers Muhammad, Sr.'s § 1983 conspiracy claim is not time barred, the R & R will be adopted and Ms. Harden's motion will be denied.

I. Background

A full recitation of the facts in Mr. Muhammad's complaint can be found in the opinion in Muhammad v. Dempsey, No. 3:11-cv-350, 2011 WL 4905513 (M.D. Pa. Oct. 14, 2011). The facts relevant to the instant motion are as follows:

Mr. Muhammad is the biological father of Naseem Johnson. On August 17, 2000, Judge Olszewski granted custody of Naseem to Muhammad and his then wife, Defendant Cleatrice Dempsey. Ms. Dempsey is not Naseem's biological mother.

On March 2, 2001, after numerous physical altercations with Ms. Dempsey, Mr. Muhammad filed for divorce from her. After being served with the divorce complaint, Ms. Dempsey did not return to her residence with Mr. Muhammad. Rather, she called Ms. Harden, a case worker with Luzerne County Children and Youth Services. Ms. Harden then assisted Ms. Dempsey in kidnapping Naseem by sending a cab to Ms. Dempsey's house and advising her on "what to do and how to do it." Mr. Muhammad notified the police that Ms. Dempsey had kidnapped his son, but the police advised him they could not act because of the court order granting custody to Ms. Dempsey.

Mr. Muhammad sought to have criminal charges filed against Ms. Dempsey for the kidnapping of Naseem. After the police and FBI declined to file charges, Muhammad filed a private criminal complaint against Ms. Dempsey. The District Attorney, however, decided not to prosecute that charge. Mr. Muhammad filed a petition for review of the District Attorney's decision; Judge Mundy denied the petition.

On September 24, 2008, Mr. Muhammad filed a petition for modification of custody/visitation. A hearing was held on May 11, 2009. At the hearing, Ms. Harden falsely testified that in September of 2001, Mr. Muhammad called 911 and told the police that if they did not come and take Naseem, Mr. Muhammad would kill the boy. Mr. Muhammad explains that although he did call the police in 2001 and ask them to take Naseem because he did not yet know that the boy was his biological son, he did not threaten Naseem's life. On June 9, 2009, Judge Brown awarded legal and physical custody of Naseem to Ms. Dempsey and granted Mr. Muhammad supervised visitation. Mr. Muhammad appealed the order; the appeal was denied.

Mr. Muhammad filed a complaint with the Middle District of Pennsylvania on February 23, 2010. On October 14, 2011, all his claims were dismissed with the exception of a claim under 42 U.S.C. § 1983 against Ms. Dempsey and Ms. Harden. Ms. Harden moved to dismiss on November 15, 2011; that motion has been fully briefed and is ripe for disposition. Magistrate Judge Smyser issued his R & R on March 1, 2012; Ms. Harden filed objections to the R & R on March 9, 2012.

II. Legal Standards

A. Objections to the Magistrate Judge's Report

Where objections to a magistrate judge's report are filed, a district 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. 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 ...


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