Opinion
Civil Action 22-764
06-02-2023
JUSTIN SCHEER Plaintiff, v. ALEXANDRIA TAYLOR, CASSIDY SCHEMM, DISTRICT ATTORNEY FILE NO. 321100 SERGEANT GAHR, SERGEANT KNEER,DETECTIVE RICHNER, DETECTIVE NEE, DETECTIVE BARONE, DETECTIVE NOWE, DETECTIVE LIPPL, DETECTIVE FABUS, DETECTIVE ZELTNER, DETECTIVE GORECKI, and DETECTIVE CRAWFORD Defendants.
Stickman District Judge
REPORT AND RECOMMENDATION
ECF Nos. 26, 28 & 30
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss filed by Defendant District Attorney File No. 321100, identified as ADA Gregory Stein, (ECF No. 26) be granted. It is further recommended that the Motion to Dismiss filed by Defendant Cassidy Schemm (ECF No. 28) be granted. Finally, it is recommended that the Motion to Dismiss filed by Defendants Barone, Crawford, Fabus, Gahr, Gorecki, Kneer, Lippl, Nee, Nowe, Richner, Alexandria Taylor, and Zeltner (ECF No. 30) be granted. It is further recommended that this civil action be dismissed with prejudice and that the Clerk of Court mark the case closed.
II. REPORT
A. Facts
Plaintiff Justin Scheer alleges that on June 6, 2020, he was a victim of an unlawful search and seizure. ECF No. 4 at 6. Plaintiff states that because of this unlawful search, he was charged with possession of a firearm, possession of drug paraphernalia, and possession of a controlled substance. Id. at 11.
On June 6, 2020, Defendant Alexandria Taylor, a detective with the Pittsburgh Police assigned to the child abuse investigation unit, obtained a search warrant for 1007 Wymore Street. 1007 Wymore Street was the residence of Victoria Loadman (“Loadman”), the mother of a twelve-month-old child with marijuana toxicity (“the child”). Plaintiff alleges that the search warrant was fraudulently obtained. ECF No. 4 at 4. Specifically, he states that Children Youth and Family (“CYF”) caseworker Defendant Cassidy Schemm, intentionally gave Detective Taylor false information about Loadman. The alleged false information was that Loadman reported to Schemm that she had taken the child to the park one morning where Loadman noticed people smoking marijuana and the child was exposed to the smoke. Id. Plaintiff alleges that on this basis alone, Detective Taylor obtained a search warrant for Loadman's residence. Id. Plaintiff states that he became a victim of an illegal search because he was present when the search was executed. Id. at 6.
The Affidavit of Probable Cause further indicates that Detective Taylor was assigned to investigate a Childline report of suspected child abuse involving Loadman. On May 27, 2020, Loadman's twelve-month-old child was taken to her primary care pediatrician (“PCP”) by her maternal grandmother because the child was unusually sleepy and unresponsive. Affidavit of Probable Cause, ECF No. 26-1. The child was transported by ambulance from the PCP's office to UPMC Children's Hospital (“CHP”) because the child was unresponsive to stimulus, including IV placement. At CHP, a urine screen was positive for marijuana. Loadman arrived and indicated that they were at a friend's house who may have had marijuana edibles but denied having any in her home. Id.
Although not attached to Plaintiff's Complaint, the Court considers the Affidavit of Probable Cause attached to the moving submissions of Defendant ADA Stein because Plaintiff relies upon the affidavit throughout his Complaint. Plaintiff also relies on the Police Criminal Complaint and supporting Affidavit of Probable Cause attached to the moving submissions of the Police Defendants. See Arizmendi v. Lawson, 914 F.Supp. 1157, 1160-61 (E.D. Pa.1996) (citing Pension Ben. Guar. Corp. v. White Consol. Ind., 998 F.2d 1192, 1196-97 (3d Cir. 1993)) (In resolving a Rule 12(b)(6) motion to dismiss, a court may look beyond the complaint to “documents referenced in the complaint or essential to a plaintiff's claim which are attached to a defendant's motion.”).
Defendant Detective Taylor also stated in the Affidavit that she received the CHP Child Advocacy Consult paperwork, authored by Dr. Carmen Coombs, which indicated that the child's clinical history and laboratory findings were consistent with marijuana toxicity and given her significant symptoms, the exposure was most likely direct rather than secondhand exposure.
Dr. Coombs' report also indicated that Loadman gave a history of the morning and afternoon the child was brought to CHP. Loadman stated that she and the child and her five-year-old brother went to a social gathering at a lake attended by approximately 50 people. Loadman reported that the child was in her care the entire time except when she went to the bathroom. They returned home around noon and napped until approximately 2:00. It was when the child woke up from her nap that she seemed excessively tired. Loadman then took the child to her grandmother's house who then immediately took the child to her doctor, where an ambulance was called and the child transported to the CHP emergency room. Loadman also reported that the day before the child presented to CHP, she and her two children attended a cookout where approximately 25 people were gathered. The child took a nap while there, which Loadman reported was totally normal. They returned home that evening at 11:00 p.m. Dr. Coombs' report further indicated that Loadman admitted to past marijuana use but stated she had not used marijuana or any other illicit drugs since 2018. Loadman denied any suspicion or knowledge that drugs were being used at either of the two social family events and denied any knowledge of anyone bringing marijuana into her home. Id. These two accounts from Loadman contradict her initial statement that the child may have been exposed to edibles.
Taylor's Affidavit further notes that she spoke with Defendant Caseworker Schemm who advised Taylor that Loadman had an extensive history with CYF, in part related to drug abuse. Schemm also advised Taylor that she had spoken with Loadman who provided a different account of events for the morning of May 27, 2020, the day the child was taken to CHP. Loadman reported to Schemm that she had taken the child to the park that morning where Loadman noticed that people were smoking marijuana and the child was exposed to the smoke. In her Affidavit, Taylor notes that this information contradicts the history that Loadman provided to hospital staff that she had no suspicion or knowledge that drugs were being used at the two social events they attended.
Taylor's affidavit further indicates that she ran Loadman through “QuickArrest” which revealed that Loadman had been arrested three separate times for drug related offenses. The first arrest was in 2016 when Loadman was arrested for possession of marijuana and Clonazempam (OTN#: G 755738-4). The second arrest was in 2017 when she was arrested for possession, and possession with intent to deliver heroin, crack cocaine, and marijuana. Loadman was arrested inside of her residence where the narcotics were discovered. At that arrest, Loadman's four juvenile children were present in the residence when she was arrested, and the narcotics were discovered. As a result, she was also charged with four counts of endangering the welfare of children (OTN#: G790103-6). The third arrest was in 2018 when Loadman was arrested for possession of oxycodone (OTN#: G801863-6).
Taylor continues that based on her training and experience, persons who have been known to both use and sell drugs often continue to have them in their possession. She also noted that drug paraphernalia, such as marijuana pipes, are known to be kept in the possession of drug users, even after drugs have been consumed, because they are not as expendable as drugs, are costly, and can be reused over a long period of time. Taylor concludes that due to Loadman's extensive drug history, her statement that the child was in her care the entire time on the morning of May 27, 2020 with the exception of using the bathroom, Loadman's contradictory statements about the child being exposed to marijuana, and because the child lives with Loadman, “all lead to the reasonable conclusion that the drugs in [the child's] system came from Loadman's person, or residence.” Id. at 2-3. Based on all of these facts and circumstances, she requested a search warrant to search Loadman's person and residence at 1007 Wymore, including the curtilage surrounding the residence, to photograph the residence, and to search for, photograph and seize narcotics and drug paraphernalia. Id. at 3.
Plaintiff alleges that Detective Taylor's warrant lacked probable cause because it was full of errors, misrepresentations, and omissions. ECF No. 4 at 6. He alleges that the warrant incorrectly stated the number of children present in Loadman's residence. Id. at 6. He further asserts that the warrant also contained several intentional omissions, including the fact that CYF did not find grounds to temporarily remove Loadman's children from her custody. Id. at 7. Specifically, he alleges that Schemm conducted a home visit on May 29, 2020 and found “nothing of concern.” Id. at 6-7. Plaintiff states that Schemm used these fraudulent statements and omissions to obtain the warrant to search Loadman's residence. Plaintiff concludes that because CYF did not take custody of Loadman's children at the May 29, 2020 home visit, there was no probable cause to search her residence for endangering the welfare of children, and therefore, the search, violated Plaintiff's constitutional rights. Id. at 7-8.
In a responsive brief, Plaintiff states that this home visit occurred around June 1, 2020. See ECF No. 37 at 3.
Further, Plaintiff alleges that Detective Taylor's warrant was overbroad, as it allowed a search for drug paraphernalia. Id. at 8. Plaintiff asserts that while there may have been probable cause to search for marijuana, the warrant allowing a search of the residence for narcotics and drug paraphernalia was overbroad and without cause. ECF No. 40 at 3 ¶ 4; ECF No. 4 at 8. Plaintiff further states that the warrant was stale at the time of the search because the incident Schemm reported to Detective Taylor occurred on May 27, 2020, but the warrant was not applied for until June 6, 2020. Id. at 9. Finally, Plaintiff notes that the Court of Common Pleas found that the affidavit failed to establish probable cause at a suppression hearing. Id. at 5.
The search was executed on June 6, 2020, when Defendants Sergeants Gahr and Kneer, and Detectives Taylor, Richner, Nee, Barone, Nowe, Lippl, Fabus, Zeltner, Gorecki, and Crawford searched Loadman's residence when Plaintiff was present. Id. at 10. Plaintiff alleges that Detective Taylor searched the residence beyond the scope of the warrant, including the search of the serial number of a firearm inside the home. Id. Plaintiff was arrested for illegal possession of a firearm, possession of a controlled substance, and possession of drug paraphernalia. Id. at 11.
A review of the Allegheny County Court of Common Pleas Criminal Docket indicates that as of June 2020, Plaintiff was a convicted felon. He pled guilty in 2010 to charges of Robbery-Inflict Serious Bodily Injury, Aggravated Assault, Firearms Not to Be Carried without a License and Possession of Firearm by a Minor (CP-02-CR-0012731-2009). In 2011, he pled guilty to Aggravated Indecent Assault of a Child, Aggravated Indecent Assault-complainant under 13 years old and Indecent Assault of a Person Less than 13 Years of Age (CP-02-CR-0010087-2010).
Plaintiff alleges that at a preliminary hearing on July 28, 2020, Detective Taylor claimed to have seen Plaintiff within two feet of the firearm, and misstated that Plaintiff acknowledged the presence of the firearm during the search. Id. Plaintiff alleges that these claims are false because Taylor admitted she was not on the same floor as Plaintiff until after he was arrested, and because body camera footage will confirm that he was not within two feet of the gun. Id. at 11. Plaintiff further alleges that Taylor's false statements were used by the district attorney to argue actual possession. Id. at 12. Plaintiff asserts that Detective Taylor's fraudulent assertions and omissions at the preliminary hearing resulted in his incarceration from June 6, 2020, to January 8, 2022. Id. at 12.
Public documents reveal that on November 22, 2021, Judge Randal Todd of the Court of Common Pleas of Allegheny County granted Justin Scheer's Motion to Suppress the firearm found during the search, finding that the Affidavit in support of the issuance of the search warrant did not establish probable cause to search Loadman's residence. Order of Court, ECF No. 28-2. On January 4, 2022, the Commonwealth filed its Petition for Nolle Prosse, which was granted that same day by Judge Todd. ECF No. 28-3.
Plaintiff also alleges that all Defendants engaged in a conspiracy pursuant to 42 U.S.C. §1985(3). Specifically, he alleges that Taylor conspired with the District Attorney to get the search warrant by misrepresenting information within the affidavit. He alleges that Taylor and the District Attorney should have known that the information was deficient before presenting it to the judge. After the warrant was obtained, Taylor gathered a “search party” which consisted of Gahr, Kneer, Richter, Nee, Barone, Nowe, Lippl, Fabus, Zeltner, Gorecki, and Crawford. Id. at 14. He continues that these persons should have known that the warrant was deficient on its face, regardless of judicial approval. Id.
B. Legal Standards
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings ‘in related or underlying cases which have a direct relation to the matters at issue.'”) (citations omitted).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
C. Analysis
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
1. Motion to Dismiss filed by Defendant ADA Gregory Stein (ECF No. 26)
In Support of his Motion to Dismiss, ADA Gregory Stein argues that all actions relating to Plaintiff's claims are protected by absolute prosecutorial immunity. Plaintiff responds that Stein's actions were investigative in nature and therefore not protected.
A prosecutor enjoys absolute immunity from liability for actions taken in connection with judicial proceedings. Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008), aff'd sub. nom. Schneyder v. Smith, 653 F.3d 313 (3d Cir. 2011). Absolute immunity from § 1983 claims attaches to the prosecutor's decision to initiate a prosecution and generally includes activities conducted in court, such as presenting evidence or legal arguments. See Imber v. Pachtman, 424 U.S. 409, 424 (1976). Prosecutorial activities outside the courtroom receive the same protection only if they are “intimately associated with the judicial phase of the criminal process.” Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009) (quoting Imber, 424 U.S. at 430).
The fact that an individual is employed as a prosecutor does not mean the prosecutor is immune from suit for every wrong committed. See Schneyder, 653 F.3d at 331. The “inquiry focuses on ‘the nature of the function performed, not the identity of the actor who performed it.'” Odd, 538 F.3d at 208 (quoting Light v. Haws, 472 F.3d 74, 78 (3d Cir. 2007)). “The court must ascertain just what conduct forms the basis for the plaintiff's cause of action, and it must then determine what function (prosecutorial, administrative, investigative, or something else entirely) that act served.” Id. The court “focuses on the unique facts of each case” and carefully dissects the prosecutor's actions. Id. (citations omitted).
Here, Plaintiff challenges the following actions of Defendant ADA Stein: 1) Defendant Detective Taylor's false statements were used by ADA Stein to argue actual possession of the firearm; and 2) Detective Taylor conspired with the District Attorney to get the search warrant by misrepresenting information within the affidavit. He alleges that Taylor and the District Attorney should have known that the information was deficient before presenting it to the judge.
The first allegation appears to concern Plaintiff's preliminary hearing. This function of ADA Stein is “intimately associated with the judicial phase of the criminal process” and is protected by absolute judicial immunity. See Odd, 538 F.3d at 208.
The second allegation concerns actions “connected with the initiation and conduct of the prosecution.” See Burns v. Reed, 500 U.S. 478, 491-92 (1991) (finding prosecutor's action of appearing before a judge and presenting evidence in support of a search warrant involved the prosecutor's role as “officer of the court” rather than “administrator or investigative officer.”). As noted by the United States Court of Appeals for the Third Circuit:
The decision to initiate a prosecution is at the core of a prosecutor's judicial role. A prosecutor is absolutely immune when making this decision, even where he acts without a good faith belief that any wrongdoing has occurred. Harm to a falsely-charged defendant is remedied by safeguards built into the judicial system-probable cause hearings, dismissal of the charges-and into the state codes of professional responsibility.Kulwicki v. Dawson, 969 F.2d 1454, 1463-64 (3d Cir. 1992) (internal citations omitted). Because ADA Stein was acting in a “quasi-judicial” role, his actions of which Plaintiff complains are protected by absolute prosecutorial immunity.
Because ADA Gregory Stein is protected by absolute prosecutorial immunity, the Court need not reach the parties' arguments regarding qualified immunity.
Therefore, it is recommended that the Motion to Dismiss filed by ADA Gregory Stein be granted. Any attempt to amend would be futile as a matter of law.
This Court recognizes that the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint-regardless of whether the plaintiff requests to do so-when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Given that Plaintiff lacks an arguable basis in the law for his § 1983 claim, it would be futile to allow Plaintiff to amend his Complaint. Therefore, this Court is recommending that the § 1983 claim be dismissed with prejudice.
2. Motion to Dismiss filed by Defendants Barone, Crawford, Fabus, Gahr, Gorecki, Kneer, Lippl, Nee, Nowe, Richner, Taylor, and Zeltner (ECF No. 30)
a. Claims against Taylor: Fourth Amendment-search and arrest warrants
i. Arrest (false arrest/malicious prosecution)
Liberally construing the pro se Complaint, Plaintiff's allegations concerning his arrest suggest violations of his Fourth Amendment protections against false arrest and malicious prosecution. Both of these claims require Plaintiff to show that Defendant Taylor did not have probable cause to arrest him. Throughout his Complaint and responsive briefing, Plaintiff relies heavily on the substance of the state court Brief in Support of the Motion to Quash [Search] Warrant/Motion to Suppress (“underlying Motion”) (ECF No. 28-1 at 10-19) in the criminal proceeding; the one-page Order issued by Judge Randal Todd on the underlying Motion suppressing the firearm (ECF No. 28-2); and the Nolle Prosse that was subsequently entered dismissing his criminal charges (ECF No. 28-3). That is, Plaintiff advances many of these same arguments in support of the underlying Motion and Judge Todd's Order to argue here that probable cause did not support the search warrant and his subsequent arrest.
In his responsive briefing, Plaintiff urges the Court to rely on public documents filed in his underlying criminal case that were attached to the briefings by various Defendants.
First, as to Plaintiff's arrest, neither the exclusionary rule nor the fruit of the poisonous tree doctrine negate the presence of probable cause as to Plaintiff's arrest and subsequent prosecution. See Zamichieli v. Andrews, Civil Action No. 12-cv-3200, 2016 WL 8732421, at *4 (E.D. Pa. April 15, 2016) (finding suppression of a gun found during an unreasonable search “does not prevent [the] court from considering such evidence in connection with its analysis of Zamichieli's § 1983 claims [concerning probable cause for arrest].”); Christian v. Orr, Civil Action No. 08-2397, 2011 WL 710209, at *17 (E.D. Pa. Mar. 1, 2011) (“Whatever the legality of the searches that yielded the marijuana . . ., possession of this drug is illegal in Pennsylvania and thus provides the basis for the police to effect a legitimate arrest.); Konopka v. Borough of Wyo., 383 F.Supp.2d 666, 675 (M.D. Pa. 2005) (concluding that “[w]hile the fruits of the allegedly illegal search may be inadmissible in criminal proceedings under the exclusionary rule, the illegality of the search does not vitiate the existence of probable cause” in relation to Plaintiff's malicious prosecution claim); Padilla v. Miller, 143 F.Supp.2d 479, 491 (M.D. Pa. 2001) (“The lack of probable cause to stop and search does not vitiate the probable cause to arrest ....”).
Here, Taylor's affidavit of probable cause in support of the Criminal Complaint indicates that Plaintiff was charged with Possession of Marijuana and that Scheer admitted that the marijuana located in Loadman's kitchen was his. The police also found drug paraphernalia related to the use and sale of marijuana including a scale and numerous baggies. As a result, even though Judge Todd found that the search of the residence was unsupported by probable cause, probable cause to arrest existed after Plaintiff admitted that the marijuana found in the kitchen was his. Although Plaintiff challenges the probable cause to arrest as it relates to the firearm, he does not challenge the probable cause to arrest on the drug charges. The Third Circuit Court of Appeals has made clear that “[p]robable cause need only exist as to [one of the] offense[s] that could be charged under the circumstances.” Barna v. City of Amboy, 42 F.3d 809, 819 (3d Cir. 1994), quoted in Reedy v. Evanson, 615 F.3d 197, 211 (3d Cir. 2010). Therefore, taking all Plaintiff's factual allegations as true, these facts demonstrate that probable cause to arrest existed as a matter of law. Defendants' Motion to Dismiss Plaintiff's false arrest and malicious prosecution claims should be granted. Any attempt to amend would be futile as a matter of law.
“[P]robable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe than an offense has been or is being committed by the person to be arrested.” Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995).
ii. Illegal Search by Detective Taylor
Defendants also move to dismiss the claim against Taylor for an illegal search in violation of the Fourth Amendment. Defendants argue that any omissions or misstatements in the affidavit of probable cause are immaterial and that the warrant application was reviewed by a neutral magistrate judge who determined that the warrant was supported by probable cause prior to the execution of the search. ECF No. 31 at 6-8. Plaintiff disputes these assertions and further argues that Defendants are collaterally estopped from arguing that there was probable cause for the search because of the findings of Judge Todd in granting the Motion to Suppress in the underlying criminal proceedings.
First, Plaintiff's collateral estoppel argument fails as a matter of law. “Collateral estoppel specifically bars relitigation of an issue that was conclusively determined in a prior adjudication and that was essential to the original judgment.” Zamichieli, 2016 WL 8732421, at *5 (citing Witkowski v. Welch, 173 F.3d 192, 198 (3d Cir. 1999)). The law of the issuing court determines the preclusive effect of a prior judgment. Nationwide Mut. Fire ins. Co. v. George V. Hamilton, Inc., 571 F.3d 299, 310 (3d Cir. 2009). Here, the Court applies state common law principles of issue preclusion because the Court examines the preclusive effect of a prior state court determination on whether a search warrant was supported by probable cause.
Collateral estoppel, or issue preclusion, applies when the following four elements are satisfied:
1) An issue decided in a prior action is identical to one presented in in a later action;
2) The prior action resulted in a final judgment on the merits;
3) The party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and
4) The part against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.Rue v. K-Mart Corp., 713 A.2d 82, 84 (Pa. 1998) (citing Shaffer v. Smith, 673 A.2d 872 (Pa. 1996)). As noted in Zamichieli, collateral estoppel will not apply where the individual defendants were not parties in the underlying criminal proceedings. Moreover, the individual Defendants are not in privity with the Commonwealth. “A defendant in a § 1983 action, sued in his individual capacity, is not considered to be in privity with the government in a prior criminal prosecution.” Zamichieli, 2016 WL 8732421, at *6 (citing Smith v. Holtz, 210 F.3d 186, 199 n.18 (3d Cir. 2000); Kinslow v. Ratzlaff, 158 F.3d 1104, 1106 (10th Cir. 1998) (holding that the dismissal of state criminal charges against plaintiff for lack of probable cause did not preclude defendant police officers in § 1983 action from relitigating the legality of the search and seizure because the officers were not parties to the criminal prosecution, were not in privity with the state, and officers' personal interests, which are not the same as the state's interests, were not at stake in the criminal prosecution)). Therefore, Plaintiff's collateral estoppel/issue preclusion argument fails as a matter of law and collateral estoppel does not bar relitigation of whether the search warrant was supported by probable cause.
As to the search warrant, Defendants argue that “Taylor's warrant application was reviewed and authorized by a neutral and detached, duly appointed magistrate judge, who determined that the warrant was supported by probable cause prior to the execution of the search.” ECF No. 31 at 8. See generally Malley v. Briggs, 475 U.S. 335, 344-45 (1986) (police officers applying for warrants are immune if a reasonable officer could have believed that there was probable cause to support the application). Plaintiff counters, however, that the affidavit of probable cause drafted by Taylor contains four fraudulent misstatements or omissions, and that Wilson v. Russo, 212 F.3d 781 (3d Cir. 2000) sets forth the appropriate analysis. ECF No. 37 at 2-3. The Court agrees that the Wilson analysis is appropriate here.
In Wilson, the United States Court of Appeals for the Third Circuit established the test for evaluating a claim that an officer both asserted and omitted facts in applying for a warrant with reckless disregard for the truth:
(1) omissions are made with reckless disregard for the truth when an officer recklessly omits facts that any reasonable person would know that a judge would want to know; and (2) assertions are made with reckless disregard for the truth when an officer has obvious reasons to doubt the truth of what he or she is asserting.212 F.3d at 783. The Wilson court continued that if none of these reckless misstatements or omissions are material, in that the warrant establishes probable cause even if the officer had not made them, then a plaintiff's right to be free from arrest without probable cause is not violated. See id.
Before turning to the examination of the alleged misstatements and omissions, the Court, taking all of Plaintiff's factual allegations as true and evaluating all documents relied upon by Plaintiff in his Complaint, finds that Taylor's affidavit in support of the search warrant is supported by probable cause on its face. Detective Taylor, a member of the Pittsburgh Bureau of Police tasked with investigating child abuse, was assigned a Childline Report concerning Loadman's 12-month-old child. This Report, in conjunction with the CHP Hospital Child Advocacy paperwork, made note of the child's marijuana toxicity and the child's significant symptoms which were most likely caused by direct rather than second-hand exposure. Given the child's young age and significant symptoms, the child's condition raised “grave concern about the level of supervision and the safety of her environment.” ECF No. 26-1. The affidavit further highlighted Loadman's conflicting accounts of the day the child was brought to CHP, and her denial of any knowledge of marijuana in her home. The Report further indicated that Loadman admitted to past marijuana use but denied usage of any drug since 2018. Finally, the affidavit noted Loadman's arrest history for drug related charges.
Plaintiff argues that the warrant lacks probable cause on its face for several reasons. He contends that the warrant was overbroad because it sought only narcotics and drug paraphernalia. He further contends that the affidavit does not state how Taylor knew that the address listed was the “target's address.” He also contends that the warrant does not suggest that Loadman's home contained contraband; that is, he contends that the details are speculative. ECF No. 37 at 4-6. The Court does not agree. The warrant was specific as to the items being sought; the address listed was Loadman's address; the substance of the Childline Report and the CHP Child Consult paperwork indicated that the exposure was most likely direct; and Loadman's vague and conflicting accounts of the child's possible exposure (edibles, not exposed at the social events, exposed to marijuana smoke at a park) peaked concern about the “level of supervision and the safety of [the child's] environment.” Finally, Plaintiff argues that the warrant was stale because the child's toxicity was discovered on May 27, 2020, but the warrant was not issued until June 6, 2020. The Complaint indicates that there was a home visit on May 29, 2020, and nothing was discovered. Considering the “grave concerns” for the safety of the child's environment, the June 6, 2020 search warrant appears to be a reasonable follow up to the home visit.
The Court now turns to Plaintiff's contentions that Taylor made certain misstatements and omissions in her affidavit of probable cause. Plaintiff alleges that Taylor misstated that Loadman's four (4) children were present when Taylor knew that Loadman only had two (2) children. However, in describing the morning and afternoon of the day the child was taken to the hospital, Taylor refers to Loadman and her two (2) children. Likewise, in describing the events of the day prior to the day that the child was taken to the hospital, Taylor refers to Loadman and “both” of her children. ECF No. 26-1 at 2, ¶¶ 4, 5. The affidavit only references four (4) children in relationship to Loadman's second arrest in 2017 for Possession, and Possession With intent to Deliver Heroin, Crack Cocaine, and Marijuana. ECF No. 26-1 at 2 ¶ 8. Even if the one statement referencing four (4) children at the time of the 2017 arrest was made with reckless disregard for the truth, this misstatement hardly rises to the level of materiality in that the warrant establishes probable cause even if Taylor had not misstated the number of Loadman's children related to the 2017 arrest.
Next, Plaintiff alleges that Taylor omitted the fact that CYF did not take temporary custody of either of Loadman's children and that this fact is material because “child abuse is a lower standard of proof and if CYF didn't have a lower level of proof and the magistrate knew this fact then Taylor could not have had probable cause for the crime of endangering the welfare of children[.]” ECF No. 37 at 3. These allegations are legal conclusions and speculative, at best. See Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). Even if this information had been included, probable cause for the search would still exist when evaluating the substance of the entire Affidavit.
Plaintiff further alleges that the Affidavit omitted that CYF conducted a home visit on or about May 29, 2020 and found “nothing of concern.” He argues that this fact is something that a judge would want to know. Again, Plaintiff's argument is based upon a legal conclusion that finding nothing during a home visit would exculpate Loadman from all suspicion concerning her child's marijuana toxicity. Certainly, a search of the residence pursuant to a warrant would constitute a much more in-depth investigation of the child's safety within the home than a CYF home visit. A judge might want to know this information, but its omission, standing alone, does not negate a finding of probable cause.
Finally, Plaintiff argues that “Taylor fraudulently omitted that the 2017 arrest at Loadman's residence was a different residence in order to make it seem like Loadman had been living at the same address for the duration of the time.” As noted by Defendants, whether done intentionally or with reckless disregard for the truth, Loadman's address, whether past or present, is immaterial to a judge's evaluation of probable cause under the circumstances at bar.
Liberally construing Plaintiff's Complaint, and taking all factual allegations as true, the Court's application of the Wilson factors indicates that the alleged misstatements and omissions, even if made with reckless disregard for the truth, do not defeat the finding of probable cause. Therefore, it is respectfully recommended that the Motion to Dismiss Plaintiff's Fourth Amendment claim against Defendant Taylor for illegal search be granted. Any attempt to amend would be futile.
b. Claim against Defendants Barone, Crawford, Fabus, Gahr, Gorecki, Kneer, Lippl, Nee, Nowe, Richner, and Zeltner for execution of the search warrant
As discussed in detail supra, at II.C.2.a.ii, Plaintiff's allegations and the documents upon which he relies demonstrate that the search of Loadman's residence was pursuant to a facially valid warrant. A facially valid warrant establishes probable cause for an arrest or search and indicates that the officers' actions were objectively reasonable. See Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (“Where the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner or, as we have sometimes put it, in ‘objective good faith.'” (quoting United States v. Leon, 468 U.S. 897, 922-23 (1984)); Illinois v. Krull, 480 U.S. 340, 367 (1987) (“Leon . . . instructs courts that police officers may rely upon a facially valid search warrant.”). Plaintiff has alleged no facts or circumstances in the possession of these Defendant officers to suggest that their reliance on the facially valid warrant was unreasonable. Therefore, these Defendants did not violate Plaintiff's Fourth Amendment protections against illegal search as a matter of law and Defendants' Motion to Dismiss this claim should be granted. Any attempt to amend would be futile.
c. Fourth Amendment claim against Taylor:-exceeding scope of search warrant in searching the serial number of firearm
Plaintiff alleges that Taylor exceeded the scope of the search warrant in searching the serial number of the firearm found near Plaintiff. Investigation into serial numbers on weapons which have come lawfully into the possession of law enforcement does not constitute a search in violation of the Fourth Amendment. See United States v. Long, No. Crim. 04-159, 2005 WL 2807123, at *8 (W.D. Pa. Oct. 27, 2005). Instead, “once police officers come into legal possession of such numbers, they have an affirmative duty to use the lease intrusive methods reasonably available to confirm or dispel their suspicion of criminal behavior.” Long, 2005 WL 2807123, at *8. The Long court continued that “[d]etermining if a gun is stolen is quickly and unintrusively accomplished by comparing its serial number against a computerized database.” Id. (citing United States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989) (holding that the police having “legally come into possession of the gun . . . were entitled, if not expected, to note and to record its serial number.”)). Therefore, Plaintiff's claim that his Fourth Amendment rights were violated when Taylor searched the serial number of the firearm found during the search should be dismissed with prejudice. Any attempt to amend would be futile as a matter of law.
d. Fourth Amendment claim against Taylor-false testimony at preliminary hearing
Defendants also move to dismiss Plaintiff's claim that Taylor gave false testimony at his preliminary hearing. Here, the law is clear that a witness, including a police officer, “has absolute immunity with respect to any claim based on the witness' testimony.” Rehberg v. Paulk, 566 U.S. 356, 367 (2012) (holding that witnesses who testify before the grand jury enjoy absolute immunity from civil liability for their testimony); see also Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983) (holding that trial witnesses, including police officers, are absolutely immune from civil liability based on their testimony). The United States Court of Appeals for the Third Circuit has long held that the doctrine of absolute witness immunity applies to testimony given at pre-trial hearings. See Williams v. Hepting, 844 F.2d 138, 141-43 (3d Cir. 1988). Therefore, it is recommended that the Motion to Dismiss Plaintiff's claim against Defendant Taylor for false testimony at his preliminary hearing be granted. Any attempt to amend would be futile as a matter of law.
e. Claim against Taylor and Pittsburgh Police Officers: Section 1985(3) Conspiracy
Plaintiff attempts to make out a claim for conspiracy pursuant to 42 U.S.C. § 1985(3). Subsection (3) of § 1985 “provides a cause of action against a person who conspires ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.'” Banks v. One or More Unknown Named Confidential Informants of Fed. Prison Camp Canaan, Civ. A. No. 1:06-cv-1127, 2008 WL 2563355, at *11 n. 22 (M.D. Pa. June 24, 2008) (quoting 42 U.S.C. § 1985(3)). The success of Plaintiff's § 1985(3) claim is dependent upon the success of his underlying § 1983 claims. That is, § 1985(3) provides no substantive rights; “it merely provides a remedy for violation of the rights it designates.” Great Am. Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372 (1979).
Here, Plaintiff has failed to make out any claim pursuant to § 1983 against these Defendants, let alone, those rights referenced in § 1985(3). Therefore, Defendants' Motion to Dismiss Plaintiff's Conspiracy claim should be granted. Any attempt to amend would be futile as a matter of law.
f. Qualified Immunity
These Defendants also claim that they are protected by qualified immunity. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity operates to ensure that, before they are subjected to suit, government officials are put on notice that their conduct is unlawful. Hope v. Pelzer, 536 U.S. 730, 739 (2002).
In determining whether qualified immunity applies, the courts conduct a two-pronged inquiry. Pearson, 555 U.S. at 232; Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015). First, the court must determine “whether the facts that the plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right.” Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). “If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end; the officer is entitled to immunity.” Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002). If, however, the plaintiff can establish a constitutional violation, then the court must proceed to the second prong and determine “‘whether the right at issue was “clearly established” at the time of defendant's alleged misconduct.'” Spady, 800 F.3d at 637 (quoting Pearson, 555 U.S. at 232). “The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “This is an objective inquiry, to be decided by the court as a matter of law.” Doe v. Groody, 361 F.3d 232, 238 (3d Cir. 2004). In conducting this analysis, courts have the discretion to decide which of the two prongs should be addressed first based on the circumstances of a particular case. Pearson, 555 U.S. at 236.
Here, the Court need only consider the first prong, as the Plaintiff has failed to make out a constitutionally cognizable claim pursuant to the Fourth Amendment. Therefore, these Defendants are protected by qualified immunity. See Bennett, 274 F.3d at 136 (“If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end; the officer is entitled to immunity.”). Therefore, the Motion to Dismiss filed by Defendants Barone, Crawford, Fabus, Gahr, Gorecki, Kneer, Lippl, Nee, Nowe, Richner, Alexandria Taylor, and Zeltner on the basis of qualified immunity should be granted.
3. Motion to Dismiss filed by Defendant Cassidy Schemm (ECF No. 28)
In his Complaint (ECF No. 4), Plaintiff invokes the protections of the Fourth and Fourteenth Amendments and challenges the actions of Defendant Schemm in providing information in support of the search warrant to investigate Loadman. Specifically, Plaintiff Scheer alleges that the warrant was issued in part because Schemm made a false statement to Detective Taylor that Loadman told Schemm she took the child to the park on May 27, 2020 and the child was exposed to marijuana smoke. ECF No. 4 at 4. Plaintiff posits that the information provided by Schemm to Taylor was false because 1) Schemm did not take emergency custody of the child; and 2) at the conclusion of Schemm's investigation, the abuse allegation was unfounded. Id. at 5. He also contends that Loadman denied making the statement to Schemm.
The United States Supreme Court has established the “more-specific-provision rule” indicating that “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997) (clarifying prior holding in Graham v. Connor, 490 U.S. 386 (1989)). Therefore, the Court looks to the jurisprudence of the more specific constitutional provision, the Fourth Amendment.
a. Illegal Search in Violation of the Fourth Amendment
In his responsive brief, Plaintiff states that his claim against Defendant Schemm is a Fourth Amendment claim for illegal search. ECF No.41 at 2. He argues that the information Schemm provided to Taylor is false because of Schemm's failure to act. Plaintiff reasons that “[i]f this information were true, then Schemm had probable cause that Loadman was the perpetrator of child abuse which only requires negligence. Were this the case then Schemm was obligated to take some action.” Id.
Schemm argues Plaintiff's allegations do not suggest that she applied for a warrant, made an arrest, or determined that probable cause existed to file charges against Plaintiff. Nor do the allegations suggest that she directed Taylor, the District Attorney's Office, or any police defendants to apply for a search warrant. ECF No. 29 at 8.
Here, liberally construing the Complaint, Plaintiff alleges only that Schemm reported a false statement to Detective Taylor about Loadman, and that she knew it was false at the time of the report. Detective Taylor then used that allegedly false statement about Loadman, along with numerous other bases, in applying for a search warrant for Loadman's residence. The statement had nothing to do with Plaintiff Scheer. Instead, it was only after the execution of the search warrant on Loadman's residence, where Plaintiff happened to be an overnight guest, that criminal proceedings were initiated against Plaintiff as a result of the search on Loadman's residence. Schemm's alleged false statement concerned only Loadman and there is simply no causal connection between Schemm's alleged false statement, and Plaintiff's arrest as a result of the search.
Moreover, Schemm was not personally involved in the search of Loadman's residence or the application for the search warrant. Pursuant to § 1983, a state actor is liable only for his or her own misconduct. Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). In fact, according to the Complaint, Schemm's involvement concerns her mandatory reporting of information to Detective Taylor. She was not responsible for drafting the affidavit of probable cause and for executing the search after it was approved by the district ttorney and signed by the neutral magistrate. Schemm's alleged false statement to Detective Taylor was but one piece of information contained in the affidavit of probable cause, that if excised, would not defeat what appeared to be a facially valid warrant. That is, besides Schemm's alleged false statement that Loadman told her the child was exposed to marijuana smoke at a park, the affidavit of probable cause also sets out Loadman's conflicting statements that the child may have been exposed to marijuana edibles at a friend's house versus her statement that the child had no exposure at two social events just before she presented to CHP. Both of these statements raised concerns for the child's safety because of her significant symptoms that were “most likely a [result of] direct rather than second hand exposure.” ECF No. 26-1 at 2. See also discussion of validity of search warrant, supra, at II.C.2.a.ii. Therefore, Defendant's Motion to Dismiss Plaintiff's claim against Schemm for violation of his Fourth Amendment protections against illegal search should be granted.
b. Pennsylvania Child Protective Services Law: 23 Pa. C.S.A. § 6301 et seq.
Defendant Schemm also argues that she is protected by immunity afforded pursuant to 23 Pa. C.S.A. § 6301 et seq. This Pennsylvania statute mandates reporting procedures and investigation into suspected child abuse. The statute provides for a multidisciplinary investigative team and “shall at a minimum include a health care provider, county caseworker and law enforcement official.” 23 Pa. C.S.A. § 6365(c). Defendant directs the Court to that part of the statute that provides for the immunity of case workers from civil liability:
Departmental and county agency immunity. An official or employee of the department or county agency who refers a report of suspected child abuse for general protective services to law enforcement authorities or provides services as authorized by this chapter shall have immunity from civil and criminal liability that might otherwise result from this action.23 Pa. C.S.A. § 6318(b). Courts are clear that this statute provides immunity for state law claims and will not protect those charged with violating federal law. See Good v. Dauphin Cnty. Soc. Servs. for Children, 891 F.2d 1087, 1090-91 (3d Cir. 1989) (quoting Wade v. City of Pittsburgh, 765 F.2d 405, 407-08 (1985) (“[A state] immunity statute, although effective against a state tort claim, has no force when applied to suits under the Civil Rights Act. The supremacy clause of the Constitution prevents a state from immunizing entities or individuals alleged to have violated federal law.”)). Therefore, the Pennsylvania Child Protective Services law will only afford immunity to Schemm for state law claims. It is recommended that Schemm's Motion to Dismiss on this basis be denied.
c. Absolute Immunity
Schemm also argues that she is protected by absolute immunity. Public officials who perform “special functions” may be entitled to absolute immunity. B.S. v. Somerset Cnty., 704 F.3d 250, 261 (3d Cir. 2013). According to the Third Circuit, the “justifications for according absolute immunity to prosecutors sometimes apply to child welfare employees.” Id. at 262. It is the defendant's burden to establish that absolute immunity is appropriate, and that burden is “uniquely heavy.” Fogle v. Sokol, 957 F.3d 148, 160 (3d Cir. 2020).
Absolute immunity will apply when a child welfare employee formulates and presents recommendations to the court regarding a child's custody determination. B.S., 704 F.3d at 262 63. Absolute immunity protects caseworkers' judicial recommendations. It also protects the “‘gathering and evaluation of information' to formulate those recommendations and to prepare for judicial proceedings.” Id. at 269 (citation omitted). Administrative or investigative actions taken “outside the context of a judicial proceeding,” however, are not protected. Id. at 262, 270.
Here, the Court must determine whether Schemm functioned as an advocate for the state when she conducted the home visit of Loadman's residence on May 29, 2020, and when she shared information about Loadman to Detective Taylor, or whether those actions were purely administrative or investigatory in nature. See B.S., 704 F.3d at 265. The Complaint does not suggest that any judicial proceedings were either underway or even contemplated as to Loadman's child. The May 29, 2020, home visit revealed “nothing of concern.” Instead, Schemm's function at the time was purely investigatory as to the child's circumstances in Loadman's residence and whether she was being exposed to harmful substances. Therefore, Schemm's Motion to Dismiss on the basis of absolute immunity should be denied.
d. Conspiracy
Plaintiff withdraws the conspiracy claim against Defendant Schemm, (Plaintiff's Response, ECF No. 41 at 4), so the Court need not reach Defendant's arguments on this issue. Therefore, it is recommended that the Motion to Dismiss be granted on the conspiracy claim against Schemm based upon Plaintiff's withdrawal of the claim.
e. Qualified Immunity
In the alternative, Schemm claims she is protected by qualified immunity.
Here again, the Court need only consider the first prong, as the Plaintiff has failed to make out a constitutionally cognizable claim pursuant to the Fourth Amendment. Therefore, Schemm is protected by qualified immunity. See Bennett, 274 F.3d at 136 (“If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end; the officer is entitled to immunity.”). Therefore, Schemm's Motion to Dismiss on the basis of qualified immunity should be granted.
Finally, because the factual allegations against Schemm are entirely unrelated to Plaintiff Scheer and his eventual arrest, and because the excise of Schemm's allegedly false statement from the affidavit of probable cause will not destroy the existence of probable cause, any attempt to amend would be futile as a matter of law.
III. CONCLUSION
It is respectfully recommended that the Motion to Dismiss filed by Defendant District Attorney File No. 321100, identified as ADA Gregory Stein, (ECF No. 26) be granted. It is further recommended that the Motion to Dismiss filed by Defendant Cassidy Schemm (ECF No. 28) be granted. Finally, it is recommended that the Motion to Dismiss filed by Defendants Barone, Crawford, Fabus, Gahr, Gorecki, Kneer, Lippl, Nee, Nowe, Richner, Alexandria Taylor, and Zeltner (ECF No. 30) be granted. It is further recommended that this civil action be dismissed with prejudice and that the Clerk of Court mark the case closed.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.