Fleming v. Yates

Full title: RONALD L. FLEMING, Plaintiff v. KELLY YATES, et al., Defendants.

Court: United States District Court, Middle District of Pennsylvania

Date published: Apr 19, 2021

CIVIL 1:21-CV-349 (M.D. Pa. Apr. 19, 2021)

Opinion

CIVIL 1:21-CV-349

04-19-2021

RONALD L. FLEMING, Plaintiff v. KELLY YATES, et al., Defendants.

Martin C. Carlson United States Magistrate Judge

Mannion Judge

REPORT AND RECOMMENDATION

Martin C. Carlson United States Magistrate Judge

I. Factual Background

This case comes before us for a second screening review. The plaintiff, Ronald Fleming, is a prodigious, but prodigiously unsuccessful, pro se litigant who has filed multiple lawsuits over the past fifteen years, many of which have been summarily dismissed. Fleming, who has described himself as both bipolar and schizophrenic, (Doc. 6-1), is currently awaiting trial on a variety of state charges including assault, vandalism, DUI, and other driving offenses in the Court of Common Pleas of Adams County. Commonwealth v. Fleming, CP-01-CR-000187-2021.

Fleming filed a pro se complaint (Doc. 1), along with a motion seeking leave to proceed in forma pauperis. (Doc. 5), a motion to amend his complaint, (Doc. 6), and a motion for a temporary restraining order, (Doc. 7), all of which seemed to relate to this on-going state case. Fleming's initial complaint demanded a great deal 1 from the reader. It was often unintelligible and described his displeasure with the pending case in a fashion that lacked content, context, or factual continuity. We directed that the lodged complaint be filed on the docket for screening purposes only, conditionally granted leave to proceed in forma pauperis, but recommended that this complaint be dismissed, and Fleming's motions to amend and for a temporary restraining order be denied. (Doc. 9). The district court adopted this Report and Recommendation, dismissed the complaint without prejudice, and referred this matter to us for further pre-trial management. (Doc. 15).

Fleming has filed an amended complaint, albeit a complaint that suffers from many of the same flaws as his original pleading. (Docs. 10 and 14). With the exception of two specifically alleged excessive force claims against defendants Black and Kerwin, the amended complaint remains largely conclusory, cryptic and flawed in a number of ways. Therefore, with the exception of these excessive force claims, it is recommended that this amended complaint also be dismissed.

II. Discussion

A. Screening of Pro Se Complaints-Standard of Review

This Court has an ongoing statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B)(ii). Specifically, we are obliged to review the complaint to determine whether any claims are frivolous, malicious, or fail to 2 state a claim upon which relief may be granted. This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).

With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 3 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual

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allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id., at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.

Fowler, 578 F.3d at 210-11.

Two years after Fowler, the Third Circuit further observed:

The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts

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“merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.'”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).

In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id.

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).

In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure, which defines what a complaint should say and provides that:

(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Fed. R. Civ. P. 8.

Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se plaintiff's complaint must recite factual allegations that 6 are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.

Judged against these legal guideposts, for the reasons set forth below it is recommended that, with one exception noted below, this amended complaint be dismissed.

B. With the Exception of the Excessive Force Claims Leveled Against Defendants Black and Kerwin, this Amended Complaint Fails as a Matter of Law.

With one exception, this amended complaint fails as a matter of law as described below.

1. The Amended Complaint Continues to Violate Rule 8 and Federal Pleading Standards.

At the outset, dismissal of many of the claims in this amended complaint is warranted because in many respects, Fleming's pleadings still fail to comply with Rule 8's basic injunction that “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” It is well-settled that: “[t]he Federal Rules of Civil Procedure require that a complaint contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' and that each averment be ‘concise, and direct.'” Scibelli v. Lebanon Cnty., 219 Fed.Appx. 221, 222 (3d Cir. 2007) (quoting Fed.R.Civ.P. 8(a)(2), (e)(1)). Thus, when a complaint is “illegible or incomprehensible, ” id., or 7 when a complaint “is not only of an unwieldy length, but it is also largely unintelligible, ” Stephanatos v. Cohen, 236 Fed.Appx. 785, 787 (3d Cir. 2007), an order dismissing a complaint under Rule 8 is clearly appropriate. See, e.g., Mincy v. Klem, 303 Fed.Appx. 106 (3d Cir. 2008); Rhett v. New Jersey State Superior Court, 260 Fed.Appx. 513 (3d Cir. 2008); Stephanatos, 236 Fed.Appx. 785; Scibelli, 219 Fed.Appx. 221; Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 450 n. 1 (5th Cir. 2005).

Dismissal under Rule 8 is also proper when a complaint “left the defendants having to guess what of the many things discussed constituted [a cause of action], ” Binsack v. Lackawanna Cnty. Prison, 438 Fed.Appx. 158, 160 (3d Cir. 2011), or when the complaint is so “rambling and unclear” as to defy response. Tillio v. Spiess, 441 Fed.Appx. 109 (3d Cir. 2011). Similarly, dismissal is appropriate in “ ‘those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.' Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (quotations omitted).” Tillio v. Spiess, 441 Fed.Appx. at 110; Tillio v. Northland Grp. Inc., 456 Fed.Appx. 78, 79 (3d Cir. 2012). Further, a complaint may be dismissed under Rule 8 when the pleading is simply illegible and cannot be understood. See, e.g., Moss v. United States, 329 Fed.Appx. 335 (3d Cir. 2009) (dismissing illegible complaint); Radin v. Jersey City Medical Center, 375 Fed.Appx. 205 8 (3d Cir. 2010); Earnest v. Ling, 140 Fed.Appx. 431 (3d Cir. 2005) (dismissing complaint where “complaint fails to clearly identify which parties [the plaintiff] seeks to sue”); Oneal v. U.S. Fed. Prob., CIV.A. 05-5509 (MLC), 2006 WL 758301 (D.N.J. Mar. 22, 2006) (dismissing complaint consisting of approximately 50 pages of mostly-illegible handwriting); Gearhart v. City of Philadelphia Police, CIV.A. 060130, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006) (dismissing illegible complaint).

These principles are applicable here and compel the dismissal of many of the averments in this amended complaint, which are unintelligible, inscrutable, and lack coherent factual averments. Consequently, in many instances the amended complaint continues to leave “defendants having to guess what of the many things discussed constituted [a cause of action].” Binsack, 438 Fed.Appx. at 160.

Furthermore, Fleming's efforts to correct the deficiencies in his prior pleadings are unavailing and, in most instances, consist of little “more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions [a form of pleading which] will not do.” Bell Atlantic Corp., 550 U.S. at 555. Accordingly, many of these averments continue to fail as a matter of law and are subject to dismissal. 9

2. Younger Abstention Applies Here.

Further, the amended complaint, and Fleming's motion for preliminary injunction, (Doc. 13), still invite us to issue an injunction in this pending state case. To the extent that Fleming invites this court to enjoin aspects of a pending state case, this pro se pleading runs afoul of a settled tenet of federal law, the Younger abstention doctrine.

The Younger abstention doctrine is inspired by basic considerations of comity that are fundamental to our federal system of government. As defined by the courts: “Younger abstention is a legal doctrine granting federal courts discretion to abstain from exercising jurisdiction over a claim when resolution of that claim would interfere with an ongoing state proceeding.” Kendall v. Russell, 572 F.3d 126, 130 (3d Cir. 2009) (citing Younger v. Harris, 401 U.S. 37, 41 (1971) (“[W]e have concluded that the judgment of the District Court, enjoining appellant Younger from prosecuting under these California statutes, must be reversed as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances”)).

This doctrine, which is informed by principles of comity, is also guided by these same principles in its application. As the Third Circuit has observed:

“A federal district court has discretion to abstain from exercising jurisdiction over a particular claim where resolution of that claim in

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federal court would offend principles of comity by interfering with an ongoing state proceeding.” Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir. 2005) (citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). As noted earlier, the Younger doctrine allows a district court to abstain, but that discretion can properly be exercised only when (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claims. Matusow v. TransCounty Title Agency, LLC, 545 F.3d 241, 248 (3d Cir. 2008).

Kendall, 572 F.3d at 131.

Once these three legal requirements for Younger abstention are met, the decision to abstain rests in the sound discretion of the district court and will not be disturbed absent an abuse of that discretion. Lui v. Comm'n on Adult Entm't Establishments, 369 F.3d 319, 325 (3d Cir. 2004). Moreover, applying these standards, federal courts frequently abstain from hearing requests for injunctive relief which necessarily interfere with on-going state criminal cases. Id.; Zahl v. Harper, 282 F.3d 204 (3d Cir. 2002).

In this case, the plaintiff's pro se amended complaint continues to reveal that all of the legal prerequisites for Younger abstention are present here with respect to those claims that seek to enjoin an ongoing state case. First, it is evident that there are state proceedings in this case. Second, it is also apparent that those proceedings afford Fleming a full and fair opportunity to litigate some of the issues raised in this lawsuit in the state case. See Sullivan v. Linebaugh, 362 Fed.Appx. 248, 249-50 (3d Cir. 2010). 11 Finally, it is clear that the state proceedings implicate important state interests, since these matters involve state criminal law enforcement, an issue of paramount importance to the state. See, e.g., Lui, 369 F.3d 319; Zahl, 282 F.3d 204.

Since the legal requirements for Younger abstention are fully met here, the decision to abstain from addressing these requests for injunctive relief rests in the sound discretion of this Court. Lui, 369 F.3d at 325. Given the important state interest in enforcement of its criminal laws and recognizing that the state courts are prepared to fully address the merits of these matters, we believe that the proper exercise of this discretion weighs in favor of abstention and dismissal of these requests for injunctive relief. Lui, 369 F.3d 319; Zahl, 282 F.3d 204.

As for any articulable claims for damages, we recommend that this case be stayed pending completion of the state criminal proceedings. In this regard, the Court of Appeals has observed in the past when applying the Younger abstention doctrine that:

With respect to Plaintiffs' claims for damages and attorney fees . . . in their individual capacities, however, we have held that “a district court, when abstaining from adjudicating a claim for injunctive relief, should stay and not dismiss accompanying claims for damages and attorney fees when such relief is not available from the ongoing state proceedings.” Williams v. Hepting, 844 F.2d 138, 144-45 (3d Cir.1988) (internal quotation marks & citation omitted).

Howard v. New Jersey Div. of Youth & Family Servs., 398 Fed.Appx. 807, 811 (3d Cir. 2010). Therefore, if the district court determines that Fleming has amended this 12 complaint in a manner that states a plausible damages claim arising out of this pending state case, further proceedings on any damages claims should be stayed until the criminal prosecution has concluded.

3. Fleming May Not Bring a Civil Rights Action for Malicious Prosecution Until the State Case Has Been Resolved in a Fashion That is Favorable to the Plaintiff.

Further, many of the claims in this amended complaint fail because they rest on a yet another fatally flawed legal premise. At bottom, the plaintiff appears to seek to bring a civil rights action premised, in part, on claims of malicious prosecution without showing that his state criminal case has been resolved in a fashion that was favorable to him.

This he cannot do.

Quite the contrary, it is well-settled that an essential element of a civil rights malicious prosecution claim is that the underlying criminal case must have been terminated in favor of the civil rights claimant. Therefore, where, as here, the civil rights plaintiff brings a malicious prosecution or false arrest claim in a setting where he has not achieved a favorable outcome in the underlying state case, the plaintiff's claim fails as a matter of law. The Third Circuit has aptly observed in this regard:

The Supreme Court has “repeatedly noted that 42 U.S.C. § 1983 creates a species of tort liability.” Heck v. Humphrey, 512 U.S. 477, 483, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (quoting Memphis Cnty. School Dist. v. Stachura, 477 U.S. 299, 305, 106 S.Ct. 2537, 91 L.Ed.2d 249

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(1986) (internal quotation marks omitted)). Given this close relation between § 1983 and tort liability, the Supreme Court has said that the common law of torts, “defining the elements of damages and the prerequisites for their recovery, provide[s] the appropriate starting point for inquiry under § 1983 as well.” Heck, 512 U.S. at 483 (quoting Carey v. Piphus, 435 U.S. 247, 257-58, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). The Supreme Court applied this rule in Heck to an inmate's § 1983 suit, which alleged that county prosecutors and a state police officer destroyed evidence, used an unlawful voice identification procedure, and engaged in other misconduct. In deciding whether the inmate could state a claim for those alleged violations, the Supreme Court asked what common-law cause of action was the closest to the inmate's claim and concluded that “malicious prosecution provides the closest analogy ... because unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process.” Heck, 512 U.S. at 484. Looking to the elements of malicious prosecution, the court held that the inmate's claim could not proceed because one requirement of malicious prosecution is that the prior criminal proceedings must have terminated in the plaintiff's favor, and the inmate in Heck had not successfully challenged his criminal conviction. Id.

Hector v. Watt, 235 F.3d 154, 155-156 (3d Cir. 2000).

Thus, “our precedents are clear that § 1983 plaintiffs alleging arrest and prosecution absent probable cause may bring malicious prosecution claims under the Fourth Amendment but are entitled to relief only if they are innocent of the crime for which they were prosecuted.” Washington v. Hanshaw, 552 Fed.Appx. 169, 173 (3d Cir. 2014) (citing Hector, 235 F.3d at 156)). Therefore, “a plaintiff claiming malicious prosecution must prove actual innocence as an element of hisprima facie case.” Steele v. City of Erie, 113 Fed.Appx. 456, 459 (3d Cir. 2004). 14

In this case, it is evident that this state criminal prosecution did not terminate favorably for the plaintiff since record records reveal that this case remains pending. In the absence of such a favorable termination of the state criminal case, this federal civil rights malicious prosecution lawsuit cannot proceed. In short, this amended complaint remains based upon the fundamentally flawed legal premise that the plaintiff can sue the state for malicious prosecution even though he has not prevailed in the underlying state case. Since this premise is simply incorrect, this aspect of the amended complaint still fails as a matter of law. See Galloway v. Kane, No. 1:15-CV-1007, 2015 WL 3953112, at *5-6 (M.D. Pa. June 29, 2015).

4. Fleming May Not Bring Damages Claims Against the State or any State Agency.

Moreover, to the extent that Fleming is seeking damages from a state agency, this pro se amended complaint runs afoul of basic constitutional and statutory rules limiting lawsuits against state agencies and officials.

First, as a matter of constitutional law, the Eleventh Amendment to the Constitution provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the . . . States . . . .” U.S. Const. amend XI. By its terms, the Eleventh Amendment strictly limits the power of federal courts to entertain cases brought by citizens against the state and state agencies. Moreover, a suit brought against an 15 individual acting in his or her official capacity constitutes a suit against the state and therefore also is barred by the Eleventh Amendment. Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989).

Pursuant to the Eleventh Amendment, states, state agencies, and state officials who are sued in their official capacity are generally immune from lawsuits in federal courts brought against them by citizens. Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996). Under the Eleventh Amendment, the Commonwealth's immunity exists as a matter of law unless waived by the state, or expressly and unequivocally abrogated by Congress. In this case, it is apparent that Congress has not expressly abrogated this constitutional immunity with respect to federal civil rights lawsuits against these state agencies and the Commonwealth clearly has not waived its immunity. See Lavia v. Pennsylvania, Dep't of Corr., 224 F.3d 190, 195 (3d Cir. 2000); Foster v. Pennsylvania Human Relations Comm'n., 157 Fed.Appx. 488, 490 (3d Cir. 2005) (holding that the District Court's finding of immunity for the PHRC and the PDLI was proper, as they were all clearly state agencies). Quite the contrary, the Commonwealth has specifically invoked its Eleventh Amendment immunity under 42 Pa. Cons. Stat. § 8521(b). Thus, while Pennsylvania has, by law, waived sovereign immunity in limited categories of cases brought against the Commonwealth in state court, see 42 Pa. Cons. Stat. § 8522, section 8521(b) flatly 16 states that: “Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.” 42 Pa. Cons. Stat. § 8521(b). Beyond these constitutional considerations and as a matter of statutory interpretation, the plaintiff cannot bring a damages action against the Commonwealth since it is also well-settled that a state, a state agency, or a state official acting in an official capacity is not a “person” within the meaning of 42 U.S.C. § 1983, the principal federal civil rights statute. Will, 491 U.S. at 71.

These basic legal tenets apply here and defeat the plaintiff's damages claims against the state or any state agency. In sum, as to any state agency, this federal civil rights claim for damages is barred both by the Eleventh Amendment to the United States Constitution and by cases construing the federal civil rights statute, 42 U.S.C. § 1983. Therefore, since the state cannot be sued in this fashion in federal court, this claim should be dismissed. Ponds v. Pennsylvania Bd. of Prob. & Parole, No. 1:20-CV-15, 2020 WL 497144, at *5 (M.D. Pa. Jan. 7, 2020), report and recommendation adopted sub nom. Ponds v. Pa. Bd. of Prob. & Parole, No. 4:20-CV-00015, 2020 WL 489014 (M.D. Pa. Jan. 30, 2020). 17

5. The Excessive Force Claims Against Defendants Black and Kerwin May Proceed.

While the vast majority of Fleming's claims still fail as a matter of law, we believe that Fleming has-barely-alleged excessive force claims against defendants Black and Kerwin that are not barred at this time while his state case proceeds forward. See Nelson v. Jashurek, 109 F.3d 142, 143 (3d Cir. 1997). Accordingly, these claims, and these claims only, should be allowed to proceed forward at this time, with the understanding that proceedings on the amended complaint may well be stayed pending the completion of his state criminal case.

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that, with the exception of the excessive force claims made against Defendants Black and Kerwin, the plaintiff's amended complaint be dismissed and his motion for a preliminary injunction (Doc. 13), be denied.

The plaintiff is further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing

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requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

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