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Tyler Hammond and Antonia Hammond v. City of Wilkes-Barre

August 14, 2012

TYLER HAMMOND AND ANTONIA HAMMOND, PLAINTIFFS,
v.
CITY OF WILKES-BARRE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

(MAGISTRATE JUDGE METHVIN)

MEMORANDUM

Presently before the Court is the Report and Recommendation of Magistrate Judge Mildred E. Methvin (Doc. 61), recommending that the Defendants' motions to dismiss (Docs. 39 & 56) be granted. For the reasons below, the Report and Recommendation will be adopted in part and rejected in part.

BACKGROUND

This action was originally filed on November 24, 2009 and was dismissed and closed in a March 30, 2011 Memorandum and Order. Hammond v. City of Wilkes-Barre, 3:09-CV-2310, 2011 WL 1257844 (M.D. Pa. Mar. 30, 2011). Thereafter, on August 15, 2011, a motion to reopen was granted and an amended complaint was filed. (Doc. 38.)

In the Amended Complaint, the plaintiffs allege the following. Plaintiffs Tyler and Antonia Hammond are husband and wife. In August of 2009, the Hammonds sought information on a property they were interested in purchasing, known as the "Old River Road Bakery." The Defendant City of Wilkes-Barre responded that "there were no plans for one of the properties that the Hammond's [sic] were interested in purchasing." (Id. at ¶ 16.)

While these properties were scheduled for a tax sale on September 16, 2009, the "Defendants, with full knowledge that the City did not owe [sic] the property in question, had property Old River Road Bakery . . . removed from the Luzerne County Take Sale List." (Id. at ¶ 18.)

Further, on approximately September 1, 2009, Defendant Leo Glodzik, III, an agent of the Defendant City of Wilkes-Barre, "came on the property that the City did not own and destroyed Plaintiffs' personal property as well as built a fence, that encroaches on Plaintiffs' property." (Id. at ¶ 1.) This action was "directed and/or allowed" by the other Defendants: the City of Wilkes-Barre, Mayor Thomas M. Leighton, and City Assistant Attorney William E. Vinsko, Jr. (Id. at ¶¶ 21-23.) In the process, Hammond suffered damages to his "trees, garden, and personal items." (Id. at ¶ 21.)

In response to these events, the Plaintiffs have brought claims in their Amended Complaint under 42 U.S.C. § 1983 for violations of their rights under the Fourth, Fifth, and Fourteenth Amendments, as well as state-law claims for misrepresentation and interference with contract. In a May 14, 2012 Report and Recommendation, Magistrate Judge Mildred E. Methvin recommended that the motions to dismiss be granted and that the Court decline to exercise supplemental jurisdiction over the remaining state-law claims. The Plaintiffs timely objected. These objections will now be evaluated below.

DISCUSSION

I. Legal Standard for Reviewing a Report and Recommendation

Where objections to the Magistrate Judge's report are filed, the 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. United States 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 district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376--77 (M.D. Pa. 1998). As such, the Court reviews the portions of the Report and Recommendation to which the Petitioner objects de novo. The remainder of the Report and Recommendation is reviewed for clear error.

II. Analysis

A. Count I: Pennsylvania's ...


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