Ostrowski v. John Doe, CIVIL ACTION NO. 3:14-CV-429

ANDREW OSTROWSKI, Plaintiff, v. OFFICER JOHN DOE and FRANK D'ANDREA, Defendants.

CIVIL ACTION NO. 3:14-CV-429

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

March 7, 2016

(JUDGE CAPUTO)

(MAGISTRATE JUDGE SAPORITO)

MEMORANDUM

Presently before me is Magistrate Judge Joseph F. Saporito's Report and Recommendation (Doc. 16) ("R & R") recommending that Plaintiff Andrew Ostrowski's Amended Complaint (Doc. 4) be dismissed for failure to state a federal claim. Mr. Ostrowski filed timely objections asking that I reject the recommendation. (Docs. 17-18) Defendant Frank DeAndrea¹ seeks dismissal of Mr. Ostrowski's claims against him for relief under 42 U.S.C.A. § 1983 and for defamation under Pennsylvania state law pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 8) Because Mr. Ostrowski fails to state claims against Mr. DeAndrea under Section 1983, I will adopt Magistrate Judge Saporito's recommendation and decline to exercise jurisdiction over Mr. Ostrowski's defamation claim.

I. Background

A. Factual and Procedural Background

According to Mr. Ostrowski's Amended Complaint and as set forth more fully in Magistrate Judge Saporito's R & R, Mr. Ostrowski was a United States congressional candidate running in Pennsylvania's Eleventh Congressional District. (Amended Complaint "Am. Compl.", 1.) Mr. Ostrowski's campaign efforts were being assisted by a large numberof dedicated volunteers. (Am. Compl. at ¶ 8.)

On March 4, 2014, one volunteer² was circulating Mr. Ostrowski's nomination petitions and gathering signatures on Alter Street in Hazleton, Pennsylvania. (Id. at ¶¶ 9-10.) The volunteer, while on a public sidewalk, was stopped, detained and taken into custody by a police officer, named as Officer John Doe. (Id. at ¶ 10, 12.) Officer Doe then searched her person and effects. (Id. at ¶ 11.) Officer Doe confiscated three pages of signed petitions the volunteer had collected, told her she needed a permit to circulate nominating petitions on the streets of Hazleton, released her and ordered her to move on. (Id. at ¶¶ 13-14.) Officer Doe took the petitions as he walked off. (Id. at ¶ 14.) There is no ordinance in Hazleton.³ (Id. at ¶ 15.) The confiscated signatures were a crucial and necessary part of the petition gathering function undertaken by Mr. Ostrowski because the signatures were required to place him on the ballot and were an expression of support for his candidacy. (Id. at ¶ 19.)

Mr. Ostrowski filed a complaint (Doc. 1) on March 7, 2014. (ECF Docket Report) The complaint was filed to "ensure the integrity of [Mr. Ostrowski's] access to the ballot, given his history as a civil rights lawyer, [he] knew that, in the event he suffered a ballot challenge, he may need to seek injunctive relief, and that it was necessary to make all efforts to obtain the signatures." (Id. at ¶ 22.) Mr. Ostrowski then called Mr. DeAndrea, the Hazleton CityChief of Police⁴, three times on March 10, 2014, the day before the nominating petitions were due to be filed, in an effort to get the petitions back. (Id. at ¶ 23.) Mr. Ostrowski was not connected with Mr. DeAndrea. (Id.) Mr. Ostrowski then sent Mr. DeAndrea an email but did not receive a response (Id. at ¶ 24.)

On March 10 and 11, 2014, Mr. Ostrowski filed his nominating petitions, meeting the numerical signature requirement for his name to be placed on the ballot. (Id. at ¶ 24.)

On March 17, 2014, Mr. Ostrowski was told Mr. DeAndrea was going to be holding a press conference and Mr. Ostrowski was asked if he would be available for comment, and he said he would. (Id. at ¶ 25.) Mr. Ostrowski believed Mr. DeAndrea was going to return the petitions. (Id.) Mr. DeAndrea did not return the petitions, which Mr. Ostrowski believes were in his personal possession. (Id. at ¶ 26.) Instead, during the press conference, Mr. DeAndrea accused Mr. Ostrowski of fabricating the entire event for political purposes. (Id.)

On July 7, 2014, Mr. Ostrowski filed an Amended Complaint against Officer John Doe and added Mr. DeAndrea as a defendant. (Doc. 4) On February 11, 2015, Mr. DeAndrea filed a motion to dismiss the claims against him for failure to state a claim. (Doc. 8) On February 19, 2015, the case was referred to Magistrate Judge Saporito. On February 25, 2015, Mr. DeAndrea filed a brief in support of his motion to dismiss.⁵ (Doc. 9) On April1, 2015, Mr. Ostrowski filed a brief in opposition to the motion to dismiss. (Doc. 14) On April 20, 2015, Mr. DeAndrea filed a reply brief. (Doc. 15) Magistrate Judge Saporito issued the R & R on August 11, 2015. (Doc. 16) On August 27, 2015, Mr. Ostrowski filed his objections to the R & R (Doc. 17) and a brief in support (Doc. 18). Mr. DeAndrea did not file a response. The R & R and the objections thereto are ripe for disposition.

In the R & R, Magistrate Judge Saporito states Mr. Ostrowski's claims as follows:

(1) Mr. DeAndrea made false and defamatory statements regarding Mr. Ostrowski at the press conference on March 17, 2014;

(2) Mr. DeAndrea made those statements in retaliation for the filing of the original complaint in this litigation;

(3) Mr. DeAndrea's statements were intended to interfere with Mr. Ostrowski's right to run for elected office;

(4) Mr. DeAndrea was a conspirator in the alleged unlawful detention of the campaign volunteer and confiscation of the nominating petitions.

(Doc. 16, 4.) Mr. Ostrowski alleges the above actions violated his First, Fourth and Fourteenth Amendment rights. (Id.) Magistrate Judge Saporito recommends that all of Mr. Ostrowski's federal claims be dismissed for failure to state a claim upon which relief can be granted. It is also recommended that discretionary jurisdiction over Mr. Ostrowski's state law defamation claim be declined based on the dismissal of the federal claims. It is, however, recommended that Mr. Ostrowski be granted leave to amend his Amended Complaint. In his objections, Mr. Ostrowski seeks permission to amend his Amended Complaint if the R & R is adopted. (Doc. 18, 2.) However, Mr Ostrowski maintains he has adequately pled hisclaims and his seven (7) objections to Magistrate Judge Saporito's R & R are summarized as follows:

(1) Magistrate Judge Saporito fails to appreciate the proper First Amendment context for this case, in that this case is not simply about Mr. DeAndrea holding a press conference, but rather it is a "case of a rogue police officer in a City marked by nepotistic and bigoted practices using a position of power to quell dissent and political opposition, and D'Andrea [sic] becoming complicit in that conduct, and further involved in the violations of Plaintiff's rights, and compromised the integrity of the electoral process."

(2) Magistrate Judge Saporito minimizes the allegations against Mr. DeAndrea. The R & R fails to take into consideration Mr. Ostrowski's allegations that Mr. DeAndrea was in possession of the petitions and that the press conference and purported investigation in to the whereabouts of the petitions was contrived for the political purpose of damaging Mr. Ostrowski's chances because of Mr. DeAndrea's relationship with the incumbent congressman, leading Mr. DeAndrea to become a conspirator in the original unlawful act, its concealment and the effort to interfere with Mr. Ostrowski's attempt to get elected.

(3) Magistrate Judge Saporito mischaracterizes Mr. Ostrowski's seizure pleading and argument in that Mr. Ostrowski pled a Fourth Amendment seizure claim and did not raise or argue a "substantive due process" claim. Mr. Ostrowski pled a Fourth Amendment Seizure without Fourteenth Amendment due process claim and the seizure of property without due process is actionable under Section 1983.

(4) Magistrate Judge Saporito improperly recommends dismissing his conspiracy claim because Mr. Ostrowski's Amended Complaint presents facts establishing Mr. DeAndrea's personal involvement in a conspiracy and further course of conduct, to interfere with Mr. Ostrowski's protected First Amendment activities, his rights of association and that Mr. DeAndrea's actions were taken in retaliation for the protected exercise of his rights.

(5) Magistrate Judge Saporito fails to address Mr. Ostrowski's First Amendment associational rights claim. This claim is based on Mr. DeAndrea's unlawful conduct and conspiracy to compromise Mr. Ostrowski's standing in the political party and among voters.

(6) Magistrate Judge Saporito fails to address Mr. Ostrowski's claims under the Pennsylvania Constitution, which he avers are protected by Section 1983.

(7) Magistrate Judge Saporito fails to reach the merits of his defamation claimbased on jurisdictional discretion but the state law claim should remain viable along with his federal claims.

(Doc. 18) The recommendations and Mr. Ostrowski's objections thereto are addressed below.

B. Legal Standards

1. Report and Recommendation

Where objections to a magistrate judge's R & R are filed, the Court must conduct a de novo review of the contested portions. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)). This only applies to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984).

In conducting a de novo review, a court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the law permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the least, the court should review uncontested portions for clear error...