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Tito Moreno v. Penn National Gaming

August 22, 2012

TITO MORENO, PLAINTIFF
v.
PENN NATIONAL GAMING, INC. A.K.A. HOLLYWOOD CASINO AT PENN NATIONAL RACE COURSE, AND MARK LOEWE, AS DIRECTOR OF RACING AND AS AN INDIVIDUAL,
DEFENDANTS



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Plaintiff, Tito Moreno ("Plaintiff" or "Moreno"), a licensed horse trainer, has filed suit under 42 U.S.C. § 1983 claiming that his constitutional rights were violated as a result of sanctions issued against him without a hearing. (Doc. 1.) Before the court is Plaintiff's Application for a Temporary Restraining Order and Preliminary Injunction. On August 10, 2012, the court granted Plaintiff's request for a temporary restraining order and scheduled a hearing on a preliminary injunction for August 16, 2012. (Doc. 6.) For the reasons set forth below, the court will grant Plaintiff's motion for a preliminary injunction.

I. Background

a. Parties

Moreno is a horse trainer licensed by the Pennsylvania State Horse Racing Commission (the "Commission"). Mountainview Thoroughbred Racing Association, Inc. ("Mountainview") and Penn National Turf Club, Inc. ("Turf Club")*fn1 are racing associations under the Race Horse Industry Reform Act, 4 P.S. § 325.101 et seq., that operate the Penn National Race Course ("Penn National"). Defendant Mark Loewe is the Vice President of Racing at Penn National.

b. Facts

On August 1, 2012, two inspectors of the Pennsylvania State Racing Commission ("state inspectors") witnessed Moreno and his son exit a stall in Barn 4 at Penn National. The stall housed a horse that Moreno trained. The state inspectors saw two syringes with needles in Moreno's possession. The inspectors confiscated those materials and subsequently searched Moreno's truck, where they found an injectable bottle Catosal. Pennsylvania state racing regulations provide that it is illegal to possess injection equipment on the track grounds. Specifically, 58 Pa. Code § 163.302(3) provides:

A person other than a veterinarian may not have in his possession equipment for hypodermic injection of a substance for hypodermic administration. A person other than a veterinarian may not have a foreign substance, within the area of the race track complex, which can be administered internally to a horse by a route, except for an existing condition and as prescribed by a veterinarian.

After confiscating the syringes and needles, state inspector Brandon Mitchem was joined at the scene by Track Manager Jeffrey Cassel. Mitchem packaged the needles and syringes for testing. The state veterinarian then arrived and drew blood samples from the horse for testing at a state laboratory. The state inspectors informed the track stewards, who are employees of the Commission tasked with regulating the conduct of racing, about the incident and scratched the horse in question from the race that evening.

Some details surrounding the incident are disputed. Moreno claims that the needles and injectables were for animals on a separate farm and in particular were for use on his goat. He further claims that he rushed to the track that day and was unaware that the syringes were in his pocket. He claims that the syringes contained vitamin B.*fn2 Inspector Mitchem, meanwhile, claims that Moreno tried to hide the syringes in his shirt or pants and that Moreno tried to push past him when confronted.

Defendant Mark Loewe, Vice President of Racing at Penn National, was informed of the incident by David Bailey, Racing Secretary. Loewe further was informed that Moreno was entering and racing horses on August 2, 2012. Loewe called the state stewards to find out why Moreno was permitted to participate, and he was told that no action would be taken against Moreno until the results of the lab tests are known.

Loewe scheduled a meeting with Moreno on August 3, 2012 to discuss the incident and the actions that would be taken in response to the alleged violations. Present at that meeting were Moreno, his attorney Alan Pincus, Loewe, and Bailey. At that meeting, Attorney Pincus asked Loewe not to eject Moreno from the track until the test results were returned, citing to the permanent damage to one's reputation caused by such an ejection.

Loewe considered Attorney Pincus's suggestion and consulted with Christopher McErlean, Corporate Vice President Racing, PNGI. Loewe then called a second meeting that day which was attended by the same individuals -- Moreno, Attorney Pincus, Loewe and Bailey. Loewe acquiesced to Attorney Pincus's request to not formally eject Moreno, and instead issued the following sanctions, memorialized in an August 3, 2012 email from Loewe to Attorney Pincus:

Effective as of this date, no entries will be accepted on Mr. Moreno's horses at any PNG property prior to the release of any information or findings of the PSHRC.

Any horses currently In To Go will be scratched. (A special exemption has been made for Top Exchange due to his entry in a Stake Race on August 3.)

Any further violation of any Penn National rule or policy, or should Mr. Moreno receive any other rule violations from any other recognized jurisdiction, will result in immediate ejection from the grounds of Penn National Race Course and revocation of all racing privileges.

No horses currently under Mr. Moreno's care may be transferred without the approval of the racing office.

All horses under Mr. Moreno's care must be off the grounds of Penn National by Monday August, 13 at 12 noon.

Penn National reserves the right to take further action after the findings of the PSHRC have ...


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