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Whitenight v. Elbel

United States District Court, W.D. Pennsylvania

May 19, 2017

SHAWN WHITENIGHT, Plaintiff,
v.
THOMAS ELBEL and DEPUTY NUNLEY, Defendants.

          MEMORANDUM ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DOC. NO. 50)

          Arthur J. Schwab United States District Judge.

         This 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.

         Defendants 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.

         Plaintiff 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.

         The 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 . . . .

         Based on these allegations, the R&R correctly stated that Plaintiff's claims assert that Defendants actions, inter alia:

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, ...

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