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Banks v. MacHesky

United States District Court, W.D. Pennsylvania

January 12, 2015

FREDERICK BANKS, Plaintiff,
v.
OFFICER MACHESKY, et al., Defendants.

REPORT AND RECOMMENDATION ECF NO. 29

LISA PUPO LENIHAN, Magistrate Judge.

I. RECOMMENDATION

For the reasons that follow, it is respectfully recommended that the Motion to Dismiss (ECF No. 29) filed by Defendants Officer Dave Machesney[1] ("Officer Machesney"), Police Chief Robert McNeilly ("Chief McNeilly"), and the Township of Elizabeth ("Elizabeth Township") (collectively "Defendants") be granted.

II. REPORT

A. Factual Background

The claims in this action stem from an interaction between Plaintiff Frederick Banks ("Plaintiff" or "Banks"), a resident of Allegheny County, Pennsylvania, and Officer Machesney, a police officer employed by Elizabeth Township. (Compl. ¶¶2-3). Prior to the incident at issue, Plaintiff had apparently sent text messages to his former fiance requesting instructions as to how to return some of her possessions to her. (Id. at ¶ 5). According to the complaint, Officer Machesney telephoned Plaintiff on June 5, 2013, and threatened Plaintiff with harassment charges if Plaintiff continued to contact his former fiance. (Id. at ¶¶ 2, 4). When Plaintiff requested a copy of the pertinent police report, Officer Machesney refused to provide one, insisting that Plaintiff would have to travel to Elizabeth Township if he wanted to see it. (Id. at ¶ 5). Plaintiff asked whether he could receive a copy if he contacted his state representative or United States Congressman, to which Officer Machesney replied, "That's what you'd better do." (Id.). Officer Machesney also refused Plaintiff's request to speak with Chief McNeilly or his assistant, causing Plaintiff to question whether Officer Machesney was acting outside of his authority. (Id. at ¶ 6).

On June 13, 2013, after receiving leave to proceed in forma pauperis, Plaintiff filed the instant complaint pursuant to 42 U.S.C. § 1983 against Officer Machesney, Chief McNeilly, Elizabeth Township, United States Congressman Mike Doyle ("Congressman Doyle"), the Commonwealth of Pennsylvania, the Pittsburgh Post-Gazette, the Pittsburgh Tribune-Review, the Pittsburgh City Paper, the Chicago Tribune and the New York Times. (ECF No. 1, 2). In his complaint, Plaintiff alleged that Officer Machesney's threat of prosecution violated his civil rights as secured by the First, Fifth, and Ninth Amendments to the United States Constitution. (Compl. at ¶ 9).

On June 13, 2013, the undersigned issued a Report and Recommendation recommending dismissal of all claims against Congressman Doyle, the Commonwealth of Pennsylvania, the Pittsburgh Post-Gazette, the Pittsburgh Tribune-Review, the Pittsburgh City Paper, and the Chicago Tribune pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). (ECF No. 3). The undersigned also recommended that Plaintiff be permitted an opportunity to attempt to cure the factual deficiencies identified in the Report and Recommendation by filing an amended complaint. (Id.). On July 5, 2013, United States District Judge Nora Barry Fischer adopted the Report and Recommendation. (ECF No. 4). When Plaintiff failed to amend his complaint before the prescribed deadline, Judge Fischer dismissed the claims against each of the aforementioned Defendants with prejudice. (ECF No. 14).

On September 19, 2013, the undersigned issued a second Report and Recommendation recommending that the New York Times be dismissed from this action pursuant to 28 U.S.C. §1915(e)(2)(B)(i)-(ii). (ECF No. 15). The undersigned again recommended that Plaintiff be provided an opportunity to file an amended complaint, and Plaintiff again failed to do so. (ECF No. 17). Judge Fischer adopted the Report and Recommendation on October 17, 2013 (ECF No. 16), and dismissed the New York Times from this action with prejudice on November 6, 2013. (ECF No. 17).

The remaining Defendants filed the instant Motion to Dismiss on May 29, 2014. (ECF No. 29). Despite several extensions of the applicable deadlines, Plaintiff has not responded to the Defendants' Motion to Dismiss. This matter is now ripe for review.

B. Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must be dismissed for failure to state a claim if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (citing Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . (citing Twombly, 550 U.S. at 556). The Supreme Court further explained:

The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the ...

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