IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH PAVUSCKO, :

: 4:08-cv-1878

Plaintiff, :

: Hon. John E. Jones III

v. :

: Hon. Malachy E. Mannion

KATRINA FIALA, :

:

Defendant. :

MEMORANDUM

August 4, 2010

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

This matter is before the Court on the Report and Recommendation

(“R&R”) of Magistrate Judge Malachy E. Mannion (Doc. 22), filed on June 22,

2010, which recommends that we: (1) grant the Defendant’s Motion for Summary

Judgment on Plaintiff’s Intentional Infliction of Emotional Distress (“IIED”)

claim; (2) deny the Motion with respect to Plaintiff’s Fourth and Fourteenth

Amendment claims; and (3) schedule this matter for trial.

Defendant filed objections to the R&R on July 7, 2010. (Docs. 23 and 24). 

Plaintiff has not filed objections to the R&R, and the time to do so has lapsed. 

Accordingly, this matter is ripe for our review. For the reasons that follow, we

shall adopt the Magistrate Judge’s recommendation in part and reject it in part. 

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I. STANDARDS OF REVIEW

A. Review of Magistrate Judge’s R&R

When objections are filed to the report of a magistrate judge, the district

court makes a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objections are made. 28 U.S.C. §

636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may

accept, reject, or modify, in whole or in part, the magistrate judge’s findings or

recommendations. Id. Although the standard of review is de novo, 28 U.S.C. §

636(b)(1) permits whatever reliance the district court, in the exercise of sound

discretion, chooses to place on a magistrate judge’s proposed findings and

recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423

U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984). 

B. Summary Judgment

Summary judgment is appropriate if the record establishes “that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). Initially, the moving party bears the

burden of demonstrating the absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by

pointing to an absence of evidence supporting an essential element as to which the

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non-moving party will bear the burden of proof at trial. Id. at 325. Once the

moving party meets its burden, the burden then shifts to the non-moving party to

show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is

“genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find

for the non-moving party, and a factual dispute is “material” only if it might affect

the outcome of the action under the governing law. Anderson v. Liberty Lobby,

Inc, 477 U.S. 242, 248-49 (1986).

In opposing summary judgment, the non-moving party “may not rely merely

on allegations of denials in its own pleadings; rather, its response must ... set out

specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The

non-moving party “cannot rely on unsupported allegations, but must go beyond

pleadings and provide some evidence that would show that there exists a genuine

issue for trial.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). 

Arguments made in briefs “are not evidence and cannot by themselves create a

factual dispute sufficient to defeat a summary judgment motion.” Jersey Cent.

Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). 

However, the facts and all reasonable inferences drawn therefrom must be viewed

in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of

Educ., 442 F.3d 848, 852 (3d Cir. 2006).

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Summary judgment should not be granted when there is a disagreement

about the facts or the proper inferences that a factfinder could draw from them. 

Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, “the

mere existence of some alleged factual dispute between the parties will not defeat

an otherwise properly supported motion for summary judgment; there must be a

genuine issue of material fact to preclude summary judgment.” Anderson, 477

U.S. at 247-48. 

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 10, 2008, plaintiff Joseph Pavuscko (“Plaintiff” or Pavuscko”),

proceeding pro se, filed the instant action against Defendant Katrina Fiala

(“Defendant” or “Fiala”) pursuant to 42 U.S.C. § 1983. The following facts are

drawn from the Defendant’s statement of material facts filed with the Motion for

Summary Judgment. (Doc. 21). Inasmuch as Plaintiff has not filed an opposition

to the Defendant’s Motion for Summary Judgment, pursuant to Local Rule 56.1, all

of the facts as set forth by the Defendant are deemed admitted. 

Plaintiff brings this action against Defendant, his ex-girlfriend and former

Swatara Township Police Officer. Plaintiff and Defendant began dating in 2005

and it appears they dated until some point in June 2006. After the relationship

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ended, the Plaintiff was arrested, prosecuted and convicted of stalking the

Defendant. In addition, in 2006, the Defendant obtained a Protection from Abuse

Order against the Plaintiff.

The incident giving rise to this lawsuit occurred on the night of October 10,

2006. On that evening, the Plaintiff was driving in his Cadillac in Swatara

Township. Plaintiff was driving from Walmart to his father’s home, where he

was residing, when he made a wrong turn. He then entered a parking lot to turn

around. 

At this time, the Defendant was on duty, in uniform, and operating a marked

police vehicle. At about 9:20 p.m., she observed a Cadillac pull out from a bar

parking lot and enter into another parking lot. She then observed the Cadillac

leave that parking lot and begin to drive erratically. Consequently, Defendant ran

the tag number of the Cadillac on her vehicle’s computer. The vehicle came back

registered to her ex-boyfriend, the Plaintiff. Plaintiff had obtained the Cadillac

after he and the Defendant had broken up, and Defendant did not know Plaintiff

was operating the Cadillac she had observed driving erratically until she ran the

tags.

In order to avoid a potential conflict, the Defendant contacted another police

officer, namely Police Officer Morris of the Swatara Township Police Department,

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and informed him of what she had observed. More specifically, she told him that

the Cadillac was swerving back and forth and that she believed the operator of the

vehicle might be driving under the influence. Defendant then told Officer Morris

that she thought the driver could be the Plaintiff, her ex-boyfriend.

Officer Morris informed the Defendant that he would pull over Plaintiff’s

vehicle and handle the interaction. Defendant then drove the behind the Cadillac

until Officer Morris pulled the vehicle over. Defendant then remained behind

Officer Morris and did not approach the vehicle any closer than was necessary to

confirm that it was Plaintiff who was driving. Officer Morris then handled the

interaction with the Plaintiff. 

When Officer Morris approached Plaintiff’s vehicle, Plaintiff asked Officer

Morris why he was being pulled over. Officer Morris responded that another

officer had reported he was driving erratically. The Plaintiff then asked who the

officer was that made the claim regarding his driving. Officer Morris responded

that he did not know. Plaintiff asked Officer Morris a second time who the officer

was that made the claim. This time Officer Morris stated that it was none of

Plaintiff’s business and that he could not tell him that information. Officer Morris

then stated that the Plaintiff smelled like he had been drinking. Plaintiff replied

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that he had not been drinking. In addition, Plaintiff maintained that he was not

driving erratically.

Officer Morris then asked for Plaintiff’s driver’s license, registration and

proof of insurance. Accordingly, Plaintiff provided that information to Officer

Morris, and Officer Morris returned to his vehicle. Upon returning to Plaintiff’s

vehicle, Officer Morris issued Plaintiff a traffic warning for careless driving as he

ultimately did not find any grounds to believe that Plaintiff was driving under the

influence. The entire traffic stop took no more than thirty (30) minutes. 

Following the October 10, 2006 incident, Plaintiff alleges that he tried to file

a complaint against Defendant through the Swatara Township Police Department,

but that he was denied the opportunity to do so as he did not receive a citation. 

Because the Swatara Township Police Department did not allow him to file a

complaint, Plaintiff contacted the Pennsylvania State Police for assistance with

investigating the incident. The investigation by the Pennsylvania State Police

revealed his vehicle registration had been queried, but did not reveal the officer

responsible for the query. In addition, the Plaintiff was later informed by the

Dauphin County District Attorney’s Office that the Defendant did not run his

license plate, but rather, Officer Morris ran his plate.

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Based on the foregoing, Plaintiff filed this action against Defendant on

October 10, 2008. Plaintiff asserts that Defendant, while acting under color of

state law, deprived Plaintiff of his constitutional rights secured by the Fourth and

Fourteenth Amendment of the United States Constitution. 

After the close of discovery, on September 14, 2009, Defendant filed a

Motion for Summary Judgment, accompanied by a brief in support and statement

of material facts. Plaintiff did not oppose the Defendant’s Motion. As noted

above, on June 22, 2010, Magistrate Judge Mannion issued a R&R on the

Defendant’s Motion, recommending it be granted in part and denied in part. 

Defendant objects to the recommendation, arguing that the Motion for Summary

Judgment should be granted in its entirety. 

III. DISCUSSION

Magistrate Judge Mannion makes three recommendations within the R&R. 

We shall discuss each in turn.

A. Fourth Amendment Claim

The Fourth Amendment, which is applicable to the States through the

Fourteenth Amendment, protects citizens from unreasonable searches and seizures. 

See U.S. Const. amend. IV. The Supreme Court has stated that the temporary

detention of individuals during a traffic stop, even if only for a brief period and for

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a limited purpose, constitutes a “seizure” of “persons” under the Fourth

Amendment. Whren v. United States, 517 U.S. 806, 809-10 (1996).

Consequently, an automobile stop is “subject to the constitutional imperative that it

not be ‘unreasonable’ under the circumstances.” Id. at 810. Thus, the Fourth

Amendment requires a police officer conducting a traffic stop to have reasonable

suspicion of criminal activity. Delaware v. Prouse, 440 U.S. 648, 654 (1979). See

also Commonwealth v. Andersen, 753 A.2d 1289, 1292-1293 (Pa. Super. Ct.

2000)(under Pennsylvania law, a police officer must meet the “reasonable and

articulable” standard in order to stop a motor vehicle). Moreover, courts determine

whether reasonable suspicion exists by examining the totality of the circumstances. 

Whren, 517 U.S. at 810; Delaware, 440 U.S. at 654; Terry v. Ohio, 392 U.S. 1, 21-

22 (1968).

Magistrate Judge Mannion recommends that summary judgment be denied

on Plaintiff’s Fourth Amendment claim because a material issue of fact remains as

to whether the traffic stop was reasonable. Magistrate Judge Mannion reasons that

Plaintiff disputes that he was driving erratically, thus Defendant’s observations of

Plaintiff’s driving cannot be used to find that the traffic stop was reasonable.

We respectfully disagree with the Magistrate Judge’s recommendation. 

First, it is undisputed that Plaintiff obtained the Cadillac after he and the Defendant

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broke up, and that the Defendant was unaware that the Plaintiff was operating the

vehicle until after she observed his erratic driving and ran the tags. Further,

Plaintiff does not dispute the Defendant’s contention that he made several turns in

parking lots and changed directions prior to being stopped by Officer Morris. 

Plaintiff admitted at his deposition that he realized he was driving in the wrong

direction and used a business parking lot to change direction. 

We simply cannot find that a genuine issue of material fact remains as to

whether the Defendant had a reasonable and articulable basis upon which to

effectuate a traffic stop on the Plaintiff. Defendant observed a vehicle, unknown to

her at the time, that was driving erratically by changing direction in parking lots,

while the Defendant was on duty and in uniform. 

Moreover, we find that Plaintiff’s testimony that once he saw the police

cruiser behind him he made a conscious effort to “stay within the confines of the

speed limit and [was] . . . probably a bit more cautious of, you know, turning on

[my] . . .turn signals and stuff of that nature . . .” does not raise an issue of material

fact as to whether the Plaintiff was driving erratically when first observed by the

Defendant. (Pavucsko Dep. 62:4-15). This testimony of Plaintiff merely states

that he made a conscious effort to drive lawfully after observing the officer, not

whether he was driving in a lawful and correct manner at the time the officer first

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observed him. It is of no moment to our Fourth Amendment analysis whether

Plaintiff corrected his erratic or careless driving after observing a police cruiser in

his rear view mirror. 

Accordingly, we find that there remains no genuine issue of material fact for

trial on the Plaintiff’s Fourth Amendment claim. We shall reject the Magistrate

Judge’s recommendation on this point and grant the Defendant’s Motion for

Summary Judgment on this claim.1

B. Fourteenth Amendment Claim

Magistrate Judge Mannion recommends the following:

Although not addressed by defendant, the court finds that

plaintiff has also brought a Fourteenth Amendment substantive due

process claim against defendant Fiala. Because defendant Fiala has

failed to raise any argument with respect to plaintiff’s Fourteenth

Amendment claim, the court should allow this claim to proceed.

(R&R, p. 17). The Defendant objects to this finding and recommendation by the

Magistrate Judge.

It is our view, based upon a review of the Complaint in this matter, that the

Plaintiff has not asserted a Fourteenth Amendment claim. However, even if the

1

 We further note that Defendant is protected by qualified immunity inasmuch as she is a

government official shielded “from liability for civil damages insofar as [her] conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have know.” Pearson v. Callahan, ___ U.S. ___, 129 S. Ct. 808, 815 (2009)(quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1992)). 

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Complaint were construed to contain a Fourteenth Amendment claim, this claim

cannot be maintained by the Defendant against the Plaintiff for the reasons that

follow.

To establish a Fourteenth Amendment claim against Defendant, Plaintiff

must plead facts that meet the “shocks the conscience” test applied “to all

substantive due process claims” asserted in the courts of the Third Circuit. See

Levin v. Upper Makefield Twp., 90 Fed. Appx. 653, 660 n. 2 (3d Cir. Mar. 8,

2004), cert. Denied, 125 S. Ct. 811 (2004). Thus, the Plaintiff must plead

“executive abuse of power as that which shocks the conscience,” to proceed against

the Defendant on a Fourteenth Amendment claim. County of Sacramento v. Lewis,

523 U.S. 833, 846 (1998).

Thus, assuming arguendo that Plaintiff has sufficiently pled a substantive

due process claim, we find that he has failed to meet his evidentiary burden on this

claim, inasmuch as he has only pled subjective ill will of his former stalking

victim, the Defendant. Moreover, as we have discussed above, it is undisputed that

Defendant’s initiation of the traffic stop of Plaintiff’s vehicle was supported by

reasonable suspicion, thus it cannot be found that Defendant engaged in

conscience-shocking behavior. 

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Accordingly, based on the foregoing, to the extent that Plaintiff has

attempted to state a Fourteenth Amendment claim, this claim shall be dismissed.

C. IIED Claim

In the R&R, Magistrate Judge Mannion recommends that summary

judgment be granted in favor of the Defendant on Plaintiff’s IIED claim because he

has failed to offer objective proof, namely competent medical evidence, to support

his claim of emotional distress. Neither party has rendered an objection to the

Magistrate Judge’s conclusion on this point. Because we agree with the sound

reasoning that led the Magistrate Judge to this conclusion, we shall not rehash his

reasoning herein, but refer the reader to the R&R at pages 14 to 17 for a full

analysis of this claim.

IV. CONCLUSION

Accordingly, for the reasons set forth above, the Magistrate Judge’s R&R is

adopted in part and rejected in part. The Defendant’s Motion for Summary

Judgment shall be granted in its entirety and this matter shall be closed. An

appropriate Order shall issue.

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