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Pino v. Carey

United States District Court, M.D. Pennsylvania

April 28, 2017

JOHN A. PINO, Plaintiff
v.
MICHAEL CAREY, et al., Defendants

          MEMORANDUM

          MALACHY E. MANNION United States District Judge

         Pending before the court are the reports of Magistrate Judge Carlson, (Doc. 59, Doc. 60), which recommend that defendants Allar and Kyper's motion for summary judgment, (Doc. 45), be granted and plaintiff's motion for leave to file a second amended complaint, (Doc. 58), be denied. All of the other defendants in this case, except for defendant Carey, have previously been dismissed.

         By way of relevant background, on June 16, 2015, the plaintiff filed, pro se, the instant civil rights action pursuant to 42 U.S.C. §1983 alleging violations of his constitutional rights by the defendants in relation to events leading to his arrest, conviction and current term of imprisonment at SCI-Houtzdale. (Doc. 1). The plaintiff also filed a motion seeking leave to proceed in forma pauperis along with his complaint. (Doc. 2). After screening the plaintiff's complaint pursuant to 28 U.S.C. §1915(e)(2), Judge Carlson concluded that it failed to state a claim upon which relief can be granted with respect to six of the eight named defendants. By report dated June 23, 2015, Judge Carlson recommended that plaintiff's motion to proceed in forma pauperis be granted and, that his complaint be dismissed without prejudice with respect to defendants Hand, Alexander, Letcavage, Aponick, Kyper and Hamilton. (Doc. 8). No objections were filed to Judge Carlson's report. However, the plaintiff filed an amended complaint on July 9, 2015. (Doc. 9).

         On December 4, 2015, the court adopted Judge Carlson's report in its entirety and recommitted the case to Judge Carlson for further proceedings regarding plaintiff's amended complaint. (Doc. 11, Doc. 12).

         On December 9, 2015, Judge Carlson screened plaintiff's amended complaint and issued another report, (Doc. 13), and recommended that the amended complaint, (Doc. 9), be dismissed with prejudice with respect defendants Hand, Alexander, Letcavage and Aponick for failure to state a cognizable claim against them. No objections were filed to Judge Carlson's report. On January 11, 2016, the court adopted the report in its entirety and dismissed plaintiff's amended complaint with prejudice with respect to defendants Hand, Alexander, Letcavage and Aponick. The court also directed that the amended complaint be served upon the remaining defendants Carey, Allar and Kyper. (Doc. 14, Doc. 15). Since Hamilton, who was previously dismissed without prejudice, was not named as a defendant in plaintiff's amended complaint, he was terminated as a party in this case. The case was then recommitted to Judge Carlson for further proceedings as to the remaining defendants.

         Defendant Carey filed his answer to plaintiff's amended complaint on March 4, 2016, (Doc. 25), and defendants Allar and Kyper filed their answer on April 6, 2016, (Doc. 26). Defendants also raised various affirmative defenses in their answers.

         Discovery then ensued, including the deposition of plaintiff.

         On October 13, 2016, defendant Carey filed a motion for summary judgment. (Doc. 41). On October 24, 2016, defendants Allar and Kyper jointly filed a motion for summary judgment. (Doc. 45). Both motions were briefed by the parties, statements of material facts were filed and exhibits were submitted.

         On December 16, 2016, Judge Carlson issued his report and recommended that defendants Allar and Kyper's motion for summary judgment be granted. (Doc. 59). On December 19, 2016, Judge Carlson issued a report and recommended that plaintiff's December 12, 2016 proposed amended pleading, construed as a motion for leave to file a second amended complaint, (Doc. 58), be denied. (Doc. 60). Plaintiff filed objections to Judge Carlson's reports with attachments. (Doc. 61, Doc. 62, Doc. 63). Plaintiff's Doc. 62 filing appears to be both an objection to Judge Carlson's Doc. 59 report as well as his brief in opposition to defendant Carey's summary judgment motion.

         When objections are timely filed to the report and recommendation of a magistrate judge, the district court must review de novo those portions of the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

         Where no objection is made to a report and recommendation, the court should, as a matter of good practice, “satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give some review to every Report and Recommendation)). Nevertheless, whether timely objections are made or not, the district court may accept, not accept or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1); Local Rule 72.31.

         In two of his filings, (Doc. 62, Doc. 63), plaintiff does not directly address Judge Carlson's pending reports and he does not indicate his specific objections to the reports. Rather, in both documents, plaintiff requests that he be allowed to proceed with respect to his original complaint as against defendants Hand, Letcavage and Aponick. Plaintiff contends that when he filed his original complaint he did not have any evidence against these three PA state trooper defendants. But he states that when he received his transcripts from his June 2 and 3, 2014 criminal trial he saw that these defendants admitted they used physical force on him to remove him from his vehicle after defendant Carey shot him twice with his gun and after defendant Allar shot him with his taser gun at the time he was taken into custody on August 26, 2013. Plaintiff states that the trial transcripts reveal after Allar shot him with his taser, Aponick and Letcavage “used unnecessary physical force” and, that all three defendants removed him from his vehicle and took him to the ground. Plaintiff also states that when he was on the ground, Hand “dry stunned” him on his back with his taser cartridge and shot him with electrical pulse. Plaintiff further states that the transcripts show Letcavage also shot him with a taser gun. (Doc. 62).

         As indicated, plaintiff's amended complaint, (Doc. 9), was previously dismissed with prejudice with respect defendants Hand, Letcavage and Aponick. (Doc. 11, Doc. 12). In fact, the dismissal of these three defendants with prejudice did not come until after Judge Carlson's initial report in which he recommended that plaintiff's original complaint be dismissed without prejudice with respect to several defendants, including Hand, Letcavage and Aponick. As such, plaintiff was given an opportunity to amend his pleading with respect to these three defendants and nonetheless, he still failed to state a cognizable claim against them.

         In any event, since plaintiff was present at is criminal trial, he certainly was aware of the testimonies of defendants Hand, Letcavage and Aponick, as well as the testimonies of all the Commonwealth's witnesses, at the time of his trial. Thus, any claim by plaintiff that he now has newly discovered evidence as to the personal involvement of these three defendants with respect to his constitutional claims is clearly without merit. Additionally, as Judge Carlson has repeatedly pointed out in his reports, the issue is not whether any defendant, including defendants Hand, Letcavage and ...


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