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Lisa Marie Ostuni v. Wa Wa's Mart

June 13, 2012

LISA MARIE OSTUNI, PLAINTIFF,
v.
WA WA'S MART, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Conaboy

(Magistrate Judge Blewitt)

MEMORANDUM

Here we consider Magistrate Judge Thomas M. Blewitt's May 15, 2012, Report and Recommendation concerning Plaintiff Lisa Marie Ostuni's pro se civil action filed pursuant to 42 U.S.C. § 1983. (Doc. 7.) Plaintiff filed the action on April 16, 2012, (Doc. 1) accompanied by an Application to Proceed In Forma Pauperis (Doc.

2). Upon initial screening required by 28 U.S.C. § 1915(e) for cases proceeding in forma pauperis, Magistrate Judge Blewitt recommends Plaintiff's Complaint be dismissed with prejudice. (Doc. 7 at 23.) On June 1, 2012, Plaintiff filed a Response to Report and Recommendation (Doc. 8) which we will construe as objections. For the reasons discussed below, we adopt the Report and Recommendation (Doc. 7) as modified.

I. Background

Plaintiff brings this action, filed on a 42 U.S.C. § 1983 complaint form, against WaWa's Market in Stoudsburg, Pennsylvania, Pauline Counterman (WaWa's cashier), and Officer Paul Duffy of the Stroudsburg Police Department. (Pl.'s Compl. § III; Doc. 1 at 2.)

In her Complaint, Plaintiff sparsely describes her claim.*fn1 (Doc. 1 at 2-3.)

On Sept. 4, 2009 Pauline Counterman accused mo of saying "I said to my son "they give this shit out like candy" misconstruing my word's! Falsely reporting to police "I was taking to long in bathroom I changed my sanittary pad "She told my 13 year old son to leave the store!" Being accused of doing drugs and drunk! Without any test's or surveilance! Paul Duffy "signing sworn document's to superior's of lyes stating "I kicked him in groin"! I didn't walk to my car! I was carried in the air like a rug! Past my son who was sitting in car. (Pl.'s Compl. § IV ¶¶ 1-5; Doc. 1 at 2-3.)

In her Response to Report and Recommendation, Plaintiff adds "1) I was grabbed from behind [by Officer Duffy] never being read my right's[;] 2) Pulled my arm's and hand's behind my back and cuffed me[;] . . . 4) Slammed me down on my right thigh leaving bruises for several week's."*fn2 (Doc. 8 at 1-2.)

In exhibits attached to her Complaint, Plaintiff's son, Rocko

Ostuni-Costa, provides a statement which includes his recollection of the events of September 4, 2009. (Doc. 4 at 4-5.) The statement is dated December 1, 2011, and reads in pertinent part as follows:

On the night my mother was taken away by police, at the WaWa, this is what happened. Our car ran out of gas and my mother called her friends to bring us gas. My mother went inside store to the bathroom. I waited in car, then I went into store and walked around looking at stuff. The lady at the counter thought I was stealing something. I think she called the police. My mom was looking for a cup and some Ice. Then the police came in behind my mother and grabbed her. She got very upset, so they lifted her up in the air, carried her out of the WaWa. They pushed her down into the police car and shoved her in. They asked me if I had somewhere to stay, and drove my mother away. Then they drove me to my friend's house. (Doc. 4 at 4-5.)

In the "Relief" portion of her Complaint, Plaintiff states

I'd like to leave jail immediately! To resume being a mother to my son! To take these horrendous charges off my record! Let this time count for this sentence with nonfelony charges on my accident as well! I was on medication that was prescribed to me. After my 3rd. lumber surgery.

I am in need of a cervical surgery. (Pl.'s Compl. § V ¶¶ 1-3; Doc. 1 at 4.)

Subsequent to her arrest and conviction on charges related to the September 4, 2009, incident, Plaintiff was sentenced to a maximum term of imprisonment of 18 months at the Monroe County Correctional Facility. (Doc. 7 at 5.) Magistrate Judge Blewitt notes that it appears this sentence has been fully served and she is now incarcerated at SCI-Cambridge Springs, in Cambridge Springs, Pennsylvania, serving a sentence imposed on her guilty plea following being charged with homicide by vehicle while driving under the influence and related offenses stemming from a June 23, 2009, incident. (Doc. 7 at 3 n.1, 5.)

Magistrate Judge Blewitt construes Plaintiff's Complaint to raise a Fourth Amendment false arrest claim and a Fourth Amendment excessive force claim regarding her September 4, 2009, arrest. (Doc. 7 at 4.) The Report and Recommendation concludes the following: Plaintiff's Complaint is in clear violation of Rule 8 of the Federal Rules of Civil Procedure (Doc. 7 at 10); certain claims are barred by the favorable termination rule of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (Doc. 7 at 10-11); to the extent Plaintiff challenges the length of her confinement and seeks immediate release from prison, such claims are to be raised in a habeas action after Plaintiff exhausts her state court remedies (id. at 11-12); Plaintiff's ยง 1983 false arrest and malicious prosecution claims are without merit (id. at 14); Plaintiff's unlawful arrest and excessive force claims should be dismissed with prejudice as it would be futile to allow her to amend these claims because the two-year statute of ...


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