United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION (DOC. NO. 50)
J. Schwab United States District Judge.
prisoner civil rights suit was commenced on May 4, 2016, with
the submission of a complaint and a petition to proceed
in forma pauperis and was referred to United States
Magistrate Judge Cynthia Reed Eddy for pretrial proceedings
in accordance with the Magistrate Judges Act, 28 U.S.C.
§ 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local
Rules for Magistrate Judges.
filed a Motion to Dismiss the Second Amended Complaint (Doc.
No. 35) to which Plaintiff, Shawn Whitenight, responded in
opposition (Doc. No. 41). The magistrate judge filed a report
and recommendation (“R&R”) on April 10, 2017,
recommending that the motion be granted in part and denied in
part. Further, it was recommended that pursuant to the
authority granted courts by 28 U.S.C. §§ 1915(e)(2)
and 1915A, Plaintiff's Equal Protection and Common Law
Civil Conspiracy claims be dismissed for failure to state a
claim upon which relief can be granted.
filed timely objections to the report and recommendation.
(Doc. No. 62). Where, as here, objections have been filed,
the court is required to make a de novo
determination about those portions of the R&R to which
objections were made. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). The district court may accept,
reject, or modify the recommended disposition, as well as
receive further evidence or return the matter to the
magistrate judge with instructions.
Court finds that Plaintiff's objections to not undermine
the recommendation of the Magistrate Judge. Plaintiff raises
several objections, only one of which requires additional
comment. The R&R recommended that Plaintiff's First
Amendment claims be dismissed under Heck v.
Humphrey, 512 U.S. 477 (1994), because the claim goes to
the core of Plaintiff's conviction. As Plaintiff
described in his response to the motion to dismiss, his
“case is an abuse of process.” Now, Plaintiff
argues that his First Amendment claim is a retaliation claim
- that “Defendants retaliated against the Plaintiff for
his arrest by committing illegal wiretapping for personal and
professional gains.” Obj. at 7 (ECF No. 62). No where
in the Second Amended Complaint does Plaintiff present his
First Amendment claim in this fashion. Rather, the Second
Amended Complaint states in pertinent part the following:
73. Defendant, Deputy Nunley's intentional reading of
Plaintiff Whitenight's attorney-client conversations/
correspondence . . . constitutes invasion of attorney-client
privacy under the First Amendment . . . .
77. . Defendant, Deputy Nunley's intentional violations
of attorney work product . . . constitutes attorney-client
work privacy violations under the First Amendment
. . . .
80. Defendant, Deputy Nunley's improper information
gathering . . . violates Plaintiff Whitenight's rights
and constitutes attorney-client privacy under the First
Amendment . . . .
86. Defendant, Thomas Elbel's intentional eavesdropping
of attorney-client conversations . . . constitutes invasion
of attorney-client privacy / custodial interference under the
First Amendment . . . .
91. Defendant, Thomas Elbel's intentional invasion of
attorney-client privacy . . constitutes invasion of
attorney-client privacy under the First Amendment . . . .
95. Defendant, Thomas Elbel's improper information
gathering . . . constitutes attorney-client privacy
violations under the First Amendment . . . .
on these allegations, the R&R correctly stated that
Plaintiff's claims assert that Defendants actions,
coerced him into pleading guilty because the prosecution
listened to his jail telephone conversations with his
attorney and had information which was improperly gleaned
from eavesdropping and reading of his attorney file, ...