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Anthony Montez Brown v. Patrolman Anthony Calabro

October 3, 2012


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



Presently before the Court is Magistrate Judge Smyser's Report and Recommendation (Doc. 11) recommending dismissal of Plaintiff Anthony Montez Brown's Amended Complaint. (Doc. 7.) Because Mr. Brown fails to state a claim upon which relief may be granted, the Report and Recommendation will be adopted and the Amended Complaint will be dismissed.

I. Background

Mr. Brown commenced the instant action on June 6, 2012 naming Luzerne County as the sole defendant. On June 20, 2012, Mr. Brown filed an Amended Complaint asserting claims against Officer Anthony Calabro, Officer Jessica Bartalotta, Chief Paul Porfirio, and Judge David. W. Lupas. (Am. Compl.)

Mr. Brown alleges that he told Defendant Calabro that he would like to file charges against Mark Davenport for making terroristic threats and shooting his house, car, and pool with a BB gun. Thereafter, Defendant Bartalotta asked Mr. Brown about his firearms, and he informed Defendant Bartalotta that his complaints were unrelated to his firearms. However, Mr. Brown offered to show her his license to carry the firearms. Mr. Brown also claims that Defendants Calabro and Bartalotta informed him that Mr. Davenport admitted to shooting the pool, but that no action would be taken against Mr. Davenport because the officers did not witness the events. Defendant Bartalotta also told Mr. Brown that he could lose his firearms.

Mr. Brown then contacted Defendant Porfirio to complain about the performance of Defendants Calabro and Bartalotta. Defendant Porfirio informed Mr. Brown that there was nothing he could do, and if Mr. Brown filed an action against Mr. Davenport, "bad things" would happen.

Months later, Mr. Brown reported a crime that Charles Hughes, Jr. allegedly committed, but Mr. Brown was falsely accused of the crime. Defendant Calabro then discriminated against Plaintiff and released Mr. Hughes while he was under the influence of alcohol and possessed a gun. Plaintiff was then told by Defendant Bartalotta that he would not be processed because she did not like him. Defendant Porfirio then started to process Mr. Brown, but he was required to wear a hat and face mask for his mug shot. Defendant Porfirio also told an FBI agent that Mr. Brown was a ninja. Additionally, Mr. Brown wished to exercise his right to remain silent, but Defendant Calabro completed a police report and required Plaintiff to sign it.

Defendant Judge Lupas then dismissed Mr. Brown's Rule 600 motion, and, during a court proceeding, Judge Lupas allowed everyone to speak except Mr. Brown and Judge Lupas refused to let Plaintiff see a doctor.

Mr. Brown's Amended Complaint seeks compensatory damages, dismissal of his criminal charges, the return of his firearms, and restoration of his gun permit.

II. Discussion

On July 12, 2012, Magistrate Judge Smyser issued a Report and Recommendation (the "R & R") (Doc. 11) recommending that Plaintiff's Amended Complaint be dismissed for failure to state a claim upon which relief can be granted. According to the Magistrate Judge, to the extent that Mr. Brown asserts that his rights were violated because criminal charges were not filed against Mr. Davenport or Mr. Hughes, the Amended Complaint fails to state a claim because "a private citizen 'lacks a judicially cognizable interest in the prosecution or non-prosecution of another.'" (Id. at 7, (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973))).

Magistrate Judge Smyser also concludes that Mr. Brown's claim seeking return of his firearm should be dismissed because he fails to allege that the named Defendants seized his firearms "nor does he allege anything regarding the circumstances of any seizure of his firearms." (Id. at 8.) Additionally, the Magistrate Judge recommends dismissal of the claims against Defendant Porfirio because Plaintiff does not explain how being required to wear a hat and facemask during a mug shot violated his constitutional rights. Additionally, the Magistrate Judge concludes that Defendant's Porfirio's alleged statement that Plaintiff was a ninja did not amount to a constitutional violation. (Id.)

Furthermore, to the extent that Defendant Calabro made Mr. Brown sign a police report despite his wish to remain silent and have a lawyer, Magistrate Judge Smyser recommends the claim be dismissed because "the plaintiff has not alleged that any statements in the police report were used against him during a trial. Thus, he fails to state a claim upon ...

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