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Malcomb v. McKean

United States District Court, W.D. Pennsylvania

August 27, 2014

Joseph Clifford MALCOMB, Plaintiff,
v.
CRAIG McKEAN, Pennsylvania State Police; and JOSHUA THOMAS, Pennsylvania State Police, Defendants.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

CYNTHIA REED EDDY, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the Defendants' Motion for Summary Judgment (ECF No. 40) be granted, and that the sole remaining count for malicious prosecution in Plaintiff's Complaint be dismissed with prejudice.

II. REPORT

A. Relevant Procedural History

Plaintiff Joseph Clifford Malcomb initiated this action pro se in August 2014 while confined as an inmate at the State Correctional Institution at Greensburg, Pennsylvania, pursuant to 42 U.S.C. §§ 1983 and 1985 alleging violations of his constitutional and state rights against two members of the Pennsylvania State Police ("PSP") - Trooper Joshua Thomas ("Trooper Thomas") and Trooper Craig McKean ("Trooper McKean").[1] (ECF No. 3). On November 23, 2011, the undersigned issued a Report and Recommendation, recommending that the Complaint be dismissed in its entirety with prejudice pursuant to 28 U.S.C. § 1915A. (ECF No. 14). Specifically, the Court recommended dismissing the claim for malicious prosecution on the grounds that the criminal proceeding did not end in Plaintiff's favor. Id. at 7-11. Further, the Court recommended dismissing all of the remaining claims on statute of limitations grounds. Id. at 6. The District Judge adopted said Report and Recommendation on December 19, 2011, (ECF No. 15), which Plaintiff appealed.

On August 15, 2013, the Court of Appeals vacated the Order dismissing Plaintiff's Complaint and remanded the case for further proceedings in accordance with its Opinion. (ECF Nos. 21). The Court of Appeals issued its Mandate on September 11, 2013, (ECF No. 22), and this Court reopened the case on September 17, 2013. (ECF No. 23). Notably, in its Opinion, the Court of Appeals only discussed the dismissal of the malicious prosecution claim, concluding "that Malcomb's complaint should not have been dismissed based on his failure to satisfy the favorable termination prong." (ECF No. 22-2 at 6). It did not address or disturb the dismissal of any of the other claims. Thus, it is reasonable to conclude that those claims were properly dismissed in the District Judge's Memorandum Order from December 19, 2011 adopting the Report and Recommendation. (ECF No. 15).

On December 30, 2013, the Court received notice from Plaintiff that he had been released from prison. (ECF Nos. 31). On February 20, 2014, Defendants filed an Answer to the Complaint. (ECF No. 34). This Court issued a Case Management Order on February 24, 2014, which set forth deadlines for discovery and summary judgment. (ECF No. 35). In said Order, Plaintiff was advised by the Court of his obligation to respond to a Motion for Summary Judgment and was provided with the copied text of Federal Rule of Civil Procedure 56 and this district's Local Rule 56 for guidance. Id. 2-4. Plaintiff was also advised that failure to deny or otherwise controvert any alleged undisputed facts contained in Defendants' Concise Statement of Material Facts would be deemed an admission, and that failure to comply with the Order would result in the Motion being decided without the benefit of his response. Id. at 4.

On March 28, 2014, Defendants filed a Notice Regarding Discovery, certifying that they "mailed all responsive documents in their possession to plaintiff in compliance with the Court's [February 24, 2014 Case Management] Order." (ECF No. 36). On May 5, 2014, the Court received a Notice from Plaintiff regarding his change of address. (ECF No. 39).

On June 18, 2014, Defendants filed a Motion for Summary Judgment, (ECF No. 40), along with a Brief in Support, (ECF No. 41), a Concise Statement of Undisputed Material Facts (ECF No. 42), and an Appendix, (ECF No. 43). On June 23, 2014, out of an abundance of caution, this Court issued a Remark, reminding Plaintiff that the Case Management Order from February 24, 2014 was still in effect and that he had until July 31, 2014 to respond to Defendants' Motion and supporting documents. (Text-Only Remark from 6/23/2014). Notwithstanding the above, Plaintiff has not responded to Defendants' Motion as of the time of this Report. Therefore, as Plaintiff was warned in the previous Order, the matter is ripe for disposition without the benefit of his response.

B. Factual Background

Because Plaintiff has failed to respond to Defendants' Concise Statement of Undisputed Material Facts (ECF No. 42), all of the facts contained therein are deemed to be admitted by Plaintiff. See W.D.Pa. LCvR 56.E. ("Alleged material facts set forth in the moving party's Concise Statement of Material Facts..., which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party."); Emigh v. Miller, 2010 WL 2926213, *4 (W.D.Pa. 2010)("[C]ourts in this district have strictly applied Local Rule 56 and deemed uncontroverted facts to be admitted."). Accordingly, for purposes of Defendants' motion, the following facts from the Concise Statement of Undisputed Material Facts are controlling:

1. Defendant Craig McKean was a Trooper with the Pennsylvania State Police (PSP) at the time of the allegations in this lawsuit. (Ex. 1 ¶1)
2. Trooper McKean was subsequently promoted to Corporal and is now retired following 25 years of service with the PSP. (Ex. 1 ¶1)
3. Defendant Joshua Thomas is a Trooper with the PSP and has served for twelve years in that capacity. (Ex. 2 ¶1)
4. The PSP was investigating a series of burglaries beginning in October 2007 that spanned several counties in western Pennsylvania. (Ex. 1 ¶2, Ex. 2 ¶2, Ex. 3 p. 21, Ex. 4 p. 21');"> 4 p. 21, Ex. 5 p. 6, Ex. 6 p. 2, Ex. 7 p. 2)
FN1: The page numbers for the Incident Report exhibits (Exs. 3-7) are found in a box in the bottom right corner of the pages.
5. It was obvious that the burglaries were related to each other because they shared a common method of entry. (Ex. 1 ¶2)
6. The burglaries were committed by two individuals, James Lunceford and Paul Crisp. (Ex. 1 ¶¶2-3, Exs. 3-7, generally)
7. Lunceford and Crisp brought many of the items they stole to 112 Bauer Road, Monaca, Pa. (Ex. 1 ¶3, Ex. 4 p. 2, Ex. 5, p. 6, Ex. 7, p. 3)
8. 112 Bauer Road was the residence of the plaintiff, Joseph Malcomb. (Ex. 1 ¶1, Ex. 2 ¶2, Ex. 3 p. 3, Ex. 4 p. 1, Ex. 5 p. 7, Ex. 6 p. 1, Ex. 7 p. 1)
9. After storage at plaintiff's residence, the stolen items were sold on the black market in West Virginia. (Ex. 1 ¶3, Ex. 6 p. 2)
10. At that time in 2007, plaintiff was on parole. (Ex. 1 ¶4, Ex. 8 p. 9)
11. On December 5, 2007, parole agents and local police searched plaintiff's residence for an unrelated matter. (Ex 1 ¶4, Ex. 8, p. 8-9)
12. The defendants did not know of this search at the time. (Ex. 1 ¶4, Ex. 2 ¶2)
13. The parole agents found alcohol and a weapon (pocket knife) at plaintiff's residence during the December 5, 2007 search. (Ex. 8 p. 9-10)
14. The possession of alcohol and the weapon were technical violations of plaintiff's parole. (Ex. 8 p. 10)
15. Plaintiff was not present at his residence during the December 5, 2007 search. (Ex. 8 p. 9-10)
16. The following day, December 6, 2007, plaintiff was arrested and incarcerated as a technical parole violator. (Ex. 8 p. 10)
17. Lunceford was arrested and taken into custody on December 6, 2007 by Trooper Thomas when he tried to sell stolen guns out of a motel room. (Ex. 2 ¶2, Ex. 5 p. 2-3)
18. Lunceford was interviewed by Trooper McKean on December 20, 2007. (Ex. 1 ¶2, Ex. 3 p. 2, Ex. 5 p. 6, Ex. 6 p. 2, Ex. 7 p. 3)
19. During that interview, Lunceford stated that he and Crisp were involved in numerous burglaries. (Ex. 1 ¶6, Ex. 5, p. 6, Ex. 6 p. 2)
20. During that interview, Lunceford also stated that he and Crisp brought most of the stolen items from those burglaries to plaintiff's residence. (Ex. 1 ¶6, Ex. 5, p. 6, Ex. 6 p. 2)
21. Lunceford specifically mentioned that he and Crisp brought a Vizio television they had stolen to plaintiff's residence and that it was located in plaintiff's bedroom. (Ex. 1 ¶6, Ex. 5, p. 6)
22. Lunceford also stated that he saw a civil war era pistol in plaintiff's residence that he knew was ...

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