Velardo v. Lewko

Opinion

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

YANIRA VELARDO and NAKIA VELARDO, :CIVIL ACTION NO. 3:18-CV-1885 Plaintifts, :(JUDGE MARIANI) :(Magistrate Judge Carlson) v. EDWARD LEWKO, MAIVAN HOUSSEIN and PETER CORDARO, Defendants. : ORDER Background of This Order Pending 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 |

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.) A 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.” /d. 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). When 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). Having 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 I! and Il! that “[DJefendants’

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. Second, Defendants’ arguments that Plaintiffs’ claims in Counts | 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). With 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 without merit.

Defendants’ 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. Finally, 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 24-26.) ACCORDINGLY, THIS [ 3 Ly DAY OF SEPTEMBER 2019, IT IS HEREBY

ORDERED THAT: 1. The R&R (Doc. 28) is ADOPTED for the reasons set out therein; 2. Defendants’ Motion to Dismiss Plaintiffs’ Complaint (Doc. 10) is DENIED. aN.

Robert D. Mariani United States District Judge