United States District Court, M.D. Pennsylvania
Carlson, Magistrate Judge
D. MARIANI, UNITED STATES DISTRICT JUDGE
of This Order
before the Court is Magistrate Judge Martin C. Carlson's
Report and Recommendation (R&R) (Doc. 28) addressing
Defendants' Motion to Dismiss Plaintiffs' Complaint
(Doc. 10). In the August 22, 2019, R&R, Magistrate Judge
Carlson recommends that Defendants' motion be denied.
(Doc. 28 at 30.) Defendants timely filed objections to the
R&R (Doc. 31) and a brief in support of the objections
(Doc. 32). They object to the R&R on three bases: 1) the
Magistrate Judge improperly concluded that Plaintiffs'
Complaint does not assert Fourteenth Amendment claims
separate and apart from Plaintiffs' Fourth Amendment
claims; 2) the Magistrate Judge improperly recommended
denying Defendants' Motion to Dismiss Plaintiffs'
Fourth Amendment claims asserted in Counts I through IV of
the Complaint; and 3) the Magistrate Judge improperly
recommended denying qualified immunity at this stage of the
proceedings. (Doc. 31 at 4-7; Doc. 32 at 5-15.)
District Court may "designate a magistrate judge to
conduct hearings, including evidentiary hearings, and to
submit to a judge of the court proposed findings of fact and
recommendations for the disposition" of certain matters
pending before the Court. 28 U.S.C. § 636(b)(1)(B). If a
party timely and properly files a written objection to a
Magistrate Judge's Report and Recommendation, the
District Court "shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made." Id. at § 636(b)(1)(C); see
also Fed. R. Civ. P. 72(b)(3); M.D. Pa. Local Rule 72.3;
Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).
considering a motion to dismiss, the motion may be granted
only if, "accepting all well-pleaded allegations in the
complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that 'the
allegations in a complaint, however true, could not raise a
claim of entitlement to relief."' Mariotti v.
Mariotti Bldg. Prod., Inc., 714 F.3d 761, 764-65 (3d
Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 558 (2007)).
conducted the required de novo review, the Court
concludes that Defendants' objections are without merit.
First, their argument that Plaintiffs improperly assert
claims under the Fourteenth Amendment separate and apart from
their Fourth Amendment claims because their Complaint states
in Counts II and III that "[Defendants' conduct...
was deprivation under color of state law, of rights
guaranteed to [Plaintiff] Yanira Velardo under the Fourth and
Fourteenth Amendments to the United States Constitution"
(Doc. 32 at 5) is without merit. Although the Magistrate
Judge agreed with the general proposition that Plaintiffs
"may not bring some general freestanding Fourteenth
Amendment claims against these defendants because the actions
of the police officers are subsumed by a more specific
provision of the Bill of Rights, the Fourth Amendment"
(Doc. 28 at 11 (citing Albright v. Oliver, 510 U.S.
266 (1994)), he properly construed the Complaint to allege
Fourth Amendment violations applied to local police officers
through the Fourteenth Amendment. (Doc. 28 at 11.) In that
the Fourth Amendment is made applicable to state actors
through the Fourteenth Amendment, Mapp v. Ohio, 367
U.S. 634 (1961), and the Court must view the Complaint in the
light most favorable to Plaintiffs in reviewing
Defendants' Motion, Mariotti, 714 F.3d at 765,
Defendants' objection is overruled.
Defendants' arguments that Plaintiffs' claims in
Counts I through IV must be dismissed are without merit.
Their assertion that Magistrate Judge Carlson should have
considered an affidavit attached to their reply brief (Doc.
32) is incorrect. Although they correctly assert that
"[t]his Circuit has held that, 'in ruling on a
motion to dismiss, a district court relies on the complaint,
attached exhibits, and matters of public record'"
(Doc. 32 at 7 (quoting Sands v. McCormick, 502 F.3d
263, 268 (3d Cir. 2007)), the hearing transcript attached to
Defendants' reply brief is a matter of public record only
insofar as it is a court record containing sworn testimony.
It does not establish that assertions made therein which
differ from allegations in the Complaint are correct as a
matter of law. Rather, it shows at most that one
officer's version of events are in contrast to
Plaintiffs' version of events. Thus, Defendants raise
issues of credibility which, even at the summary judgment
stage, are not for the Court to determine. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986).
their arguments regarding excessive force, Defendants
essentially assert that the Court should believe their
version of events and construe allegations made in the
Complaint in the light most favorable to Defendants. (Doc. 32
at 10-11.) As Magistrate Judge Carlson properly concluded,
this the Court cannot do. (Doc. 28 at 14-15.) Defendants'
conclusory statement that "Plaintiff Yanira Velardo
simply cannot prove that Defendants failed to intervene, as
she has not shown that excessive force was used, that she was
unjustifiably arrested, and that a constitutional violation
was committed by a fellow officer" (Doc. 32 at 12)
relies on the validity of their excessive force argument.
Because the Court has concluded that they are not entitled to
dismissal of Plaintiffs' excessive force claims, their
argument regarding failure to intervene claims is also
argument that Magistrate Judge Carlson improperly considered
only one prong of the malicious prosecution claim (Doc. 32 at
13) does not show error in that their argument hinges in part
on the success of their showing probable cause which cannot
be determined on the record before the Court. Further, given
federal notice pleading requirements and the plausibility
standard which governs a motion to dismiss, Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009), the Court concludes
Plaintiffs' malicious prosecution claim is not subject to
dismissal for the reasons cited by the Magistrate Judge.
the Court concludes that Magistrate Judge Carlson properly
concluded that Defendants' are not entitled to qualified
immunity at this stage of the proceedings. (See Doc. 28 at
R&R (Doc. 28) is ADOPTED for the ...