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According to the docket entries in this case, it appears that Defendant Jason Ahlbrandt was improperly identified by

Plaintiff as an Erie Police Officer and was purportedly served with the summons and complaint in this matter when

the papers were erroneously accepted by the Erie Police Department on his behalf. [Document # 10]. As is

apparent from his trial court testimony, however, Mr. Ahlbrandt is not a police officer and is not, in any way,

affiliated with the Erie Police Department. (See jury trial transcript attached as Exhibit B to Document # 14, at pp.

87-90). As a result, Mr. Ahlbrandt has never been properly served in this matter and no appearance has ever been

entered by an attorney on his behalf.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DALE TREIBER, )

Plaintiff ) C.A. 05-278 Erie

)

v. ) District Judge McLaughlin

) Magistrate Judge Baxter

ERIE POLICE DEPARTMENT, et al., )

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectively recommended that the motion for summary judgment filed on behalf of

Defendants Erie Police Department, Goozdich, and Talarico [Document # 14] be granted.

It is further recommended that, pursuant to the authority granted to courts in the Prison

Litigation Reform Act, Plaintiff’s complaint be dismissed for failing to state a claim upon which

relief can be granted as against Defendant Ahlbrandt.1

II. REPORT

A. Procedural History

On September 27, 2005, Plaintiff Dale Treiber, an inmate incarcerated at the State

Correctional Institution at Coal Township, Pennsylvania (“SCI-Coal”), filed this pro se civil

rights action pursuant to 42 U.S.C. § 1983. Named as Defendants are: Erie Police Department

(“E.P.D.”); Officer William Goozdich of the E.P.D. (“Goozdich”); Officer Anthony Talarico of

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the E.P.D. (“Talarico”); and Jason Ahlbrandt (“Ahlbrandt”).

Plaintiff alleges that Defendants committed assault and malicious prosecution in

violation of his rights under the first, sixth, eighth, and fourteenth amendments to the United

States Constitution. In particular, Plaintiff claims that: 

... the Defendants arrested Plaintiff, and while handcuffed, Officers beat

the Plaintiff causing the Plaintiff permanent loss of 50% of feeling in

Plaintiff’s hands and wrists... As a direct and proximate result of the

acts of the Defendants, (Police Officers), Plaintiff suffered lacerations

to his face, so no one could recognize Plaintiff’s identity.... As a result

of the Defendants attack, assault, the Defendants falsely used a

kidnapping [sic] charge, inter alia, which Defendants committed

Malicious Prosecution, Willful Misconduct, with Malice to conflict

[sic] and cover up the attack, assault on Plaintiff.... As a direct and

proximate result of the acts of the Defendants, (Police Officers), with

the directions of unknown Police Officers, Plaintiff has suffered

emotional distress, physical pain and severe shock to the Plaintiff’s

nervous system, which is permanent and will continue to cause Plaintiff

great pain and suffering.

As relief for his claims, Plaintiff seeks and injunctive relief and compensatory damages.

Defendants E.P.D., Goozdich, and Talarico have filed a motion for summary judgment

[Document # 14] asserting that Plaintiff has failed to state a claim upon which relief may be

granted. Plaintiff has filed a response to Defendants’ motion essentially restating the bases for

the claims set forth in his Complaint. This matter is now ripe for consideration.

B. Relevant Factual History

On September 14, 2004, a jury found Plaintiff guilty of thirteen criminal counts related

to his kidnaping of a fifteen year old female from a parking lot located on West 19th and Peach

Streets in Erie, Pennsylvania, on September 29, 2003. (See Opinion of The Honorable William

R. Cunningham (“Trial Court Opinion”), attached as Appendix 1 to Document # 14, at p. 1). 

After abducting the female, Plaintiff attempted to elude police officers, who gave chase after

noticing the high rate of speed Plaintiff was traveling and his failure to obey numerous stop

signs. (Id.). The chase ended when Plaintiff crashed his vehicle into an apartment occupied by

Defendant Ahlbrandt. (Id.; Document # 14, Appendix 2, at pp. 87-88). Plaintiff alleges that he

was then apprehended by police, handcuffed, and beaten by Defendants Goozdich and Talarico.

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(Complaint at Section IV.C).

C. Standard of Review

1. Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted

if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Rule 56(e) further provides that when

a motion for summary judgment is made and supported, “an adverse party may not rest upon the

mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is

a genuine issue for trial. If the adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.” Id. 

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial

burden of proving to the district court the absence of evidence supporting the non-moving

party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v.

Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further,

“[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential

fact <to demand at least one sworn averment of that fact before the lengthy process of litigation

continues.’” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting

Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574 (1986);

Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance -

which supports each element of his claim to defeat a properly presented motion for summary

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judgment). The non-moving party must go beyond the pleadings and show specific facts by

affidavit or by information contained in the filed documents (i.e., depositions, answers to

interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will effect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving

for summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Co. of Newark, N.J. v.

DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the

dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury

could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

2. Pro Se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim 

if it appears “beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972) quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should be done so despite failure to cite

proper legal authority, confusion of legal theories, poor syntax and sentence construction, or

litigant’s unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982);

United States ex rel. v. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition

prepared by prisoner may be inartfully drawn and should be read “with a measure of tolerance”);

Smith v. U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992); Freeman v. Department of

Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court

should construe all allegations in a complaint in favor of the complaint. Gibbs v. Roman, 116

F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63,65 (3d Cir. 1996)(discussing

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Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d

Cir. 1990)(same).

D. Discussion

1. Excessive Use of Force Claim

Plaintiff alleges that Defendants Goozdich and Talarico beat him while he was

handcuffed, causing him to suffer facial lacerations and “permanent loss of 50% of feeling in

[his] hands and wrists.” (Complaint at Section IV.C). Defendants counter that the sworn

testimony and evidence elicited at trial demonstrate that their actions were reasonably necessary

to subdue Plaintiff after he violently resisted arrest.

In Groman v. Township of Manalapan, 47 F.3d 628 (3d Cir.1995), the Third Circuit

explained the elements of an excessive force claim:

An excessive force claim under § 1983 arising out of law enforcement

conduct is based on the Fourth Amendment's protection from

unreasonable seizures of the person. Graham v. Connor, 490 U.S. 386,

394- 95 (1989). A cause of action exists under § 1983 when a law

enforcement officer uses force so excessive that it violates the Fourth

and Fourteenth Amendments to the United States Constitution. Brown v.

Borough of Chambersburg, 903 F.2d 274, 277 (3d Cir.1990). Police

officers are privileged to commit a battery pursuant to a lawful arrest,

but the privilege is negated by the use of excessive force. Edwards v.

City of Phila., 860 F.2d 568, 572 (3d Cir.1988).

When a police officer uses force to effectuate an arrest that force must be

reasonable. Graham, 490 U.S. at 396. The reasonableness of the

officer's use of force is measured by "careful attention to the facts and

circumstances of each particular case, including the severity of the crime

at issue, whether the suspect poses an immediate threat to the safety of

the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight." Id. The reasonableness inquiry is

objective, but should give appropriate scope to the circumstances of the

police action, which are often "tense, uncertain, and rapidly evolving."

Id. at 397.

Id. at 633-34.

At Plaintiff’s criminal trial, Defendant Ahlbrandt testified that, after his apartment was

struck by Plaintiff’s vehicle, he witnessed police officers pulling Plaintiff from the vehicle, after

which Plaintiff “resisted pretty strongly... [j]ust flailing his arms around and trying to crawl

away....” (Document # 14, Appendix 2, at p. 89). Ahlbrandt testified further that it took at least

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two police officers to get Plaintiff under control. (Id.). 

Defendant Goozdich testified that he arrived at the accident scene after Plaintiff had

already been pulled from the vehicle and taken into custody by two police officers: Defendant

Talarico and Officer Onderko. (Document # 14, Appendix 3, at pp. 68-69). Goozdich testified

that Plaintiff “seemed to be mentally unstable or under the influence of some type of narcotic by

the way that he was shaking,” and “seemed uncontrollable.” (Document # 14, Appendix 3, at p.

70). Defendant Goozdich testified further that the officers had difficulty getting Plaintiff under

control. (Id.). 

Officer Onderko testified that, after Plaintiff was removed from the vehicle, “[h]e began

to resist, was very belligerent...” and “[h]is manner was very aggressive.” As a result, Plaintiff

had to be forced to the ground, after which Plaintiff “was attempting to get back up several

times while we were attempting to handcuff him.” (Document # 14, Appendix 4, at p. 79). 

Officer Onderko testified further that “[i]t took approximately a minute to get [Plaintiff]

handcuffed,” because Plaintiff was “flinging his arms around, swinging them,” and that “[o]nce

[Plaintiff] was handcuffed he was still very uncooperative” and “had to physically be carried to

an ambulance.” (Document # 14, Appendix 4, at p. 80).

Defendant Talarico testified that “[Plaintiff] was resisting our attempts to take him into

custody.” In particular, Talarico stated that, while Plaintiff was on his stomach, “[Officer

Onderko] was down trying to get his arm behind him” and “I was on [Plaintiff’s] back and he

was trying to get up... [h]e was fighting pretty good.” (Document # 14, Appendix 5, at p. 108). 

Defendant Talarico testified further that Plaintiff “was acting like he was high on something”

and “was acting so wild and out of it we called for Emergycare to come up to assist.”

(Document # 14, Appendix 5, at p. 109).

Plaintiff has not produced any evidence to contradict the foregoing version of events. 

There is simply no evidence of record to support Plaintiff’s allegations that he was assaulted and

beaten by Defendant Goozdich, Defendant Talarico, and Officer Onderko. The substantial

weight of evidence before this Court indicates that Plaintiff was actively and violently resisting

the officers’ attempts to place him in handcuffs and take him into custody. According to

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Defendant Ahlbrandt and all officers at the scene, Plaintiff was acting irrationally and out of

control, and had to forcibly be subdued. Weighing the circumstances surrounding the use of

force in this case, this Court concludes that the actions of Defendants Goozdich and Talarico,

and Officer Onderko, did not constitute excessive force and summary judgment should be

granted in this regard. 

2. Malicious Prosecution and Wilful Misconduct Claims

Plaintiff claims that, “[a]s a result of the Defendants attack, assault, the Defendants

falsely used a kidnapping [sic] charge, inter alia, which Defendants committed Malicious

Prosecution, Willful [sic] Misconduct, with Malice to conflict and cover up the attack, assault

on Plaintiff.” (Complaint at Section IV.C.4). Thus, in essence, Plaintiff is claiming that the

kidnaping charge, of which he was ultimately found guilty, was “false” and, therefore, he is

entitled to receive monetary damages. In order to recover damages for an allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that

“the conviction or sentence has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such a determination, or called into

question by a federal court’s issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S.

477, 486-87 (1994). “A claim for damages bearing that relationship to a conviction or sentence

that has not been so invalidated is not cognizable under § 1983.” 512 U.S. at 487 (emphasis in

the original).

Plaintiff’s claim that he was falsely accused of kidnaping clearly implicates the validity

of his conviction; yet, Plaintiff has made no showing that the conviction has been declared

invalid. Therefore, Plaintiff’s claims for monetary damages against the Defendants should be

dismissed.

3. The Prison Litigation Reform Act

The Prison Litigation Reform Act provides that: 

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Title 28 U.S.C. §1915(e)(2) provides: “Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--(B) the action or appeal--(i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against

a defendant who is immune from such relief.”

8

(b) Grounds for dismissal– On review, the court shall identify cognizable claims

or dismiss the complaint, or any portion of the complaint, if the complaint– (1) is

frivolous, malicious, or fails to state a claim upon which relief may be granted; 

or (2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C.A. § 1915A. Under Section 1915A, not only is a court permitted to sua sponte

dismiss a complaint which fails to state a claim, but it is required to do so. Nieves v. Dragovich,

1997 WL 698490, at *8 (E.D. Pa. 1997)(“Under provisions of the Prison Litigation Reform Act

codified at 28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c), the district courts are

required, either on the motion of a party or sua sponte, to dismiss any claims made by an inmate

that are frivolous or fail to state a claim upon which relief could be granted.”).

The PLRA also amended the statutory provisions with respect to actions brought by

prisoners who are proceeding in forma pauperis. See 28 U.S.C. §1915(e)(2)2. Under this

provision as well, not only is a court permitted to sua sponte dismiss a complaint which fails to

state a claim, but it is required to do so by mandatory language. See, e.g., Keener v.

Pennsylvania Bd. of Probation and Parole, 128 F.3d 143, 145 n.2 (3d Cir. 1997) (describing 28

U.S.C. § 1915(e)(2)(B) as “the PLRA provision mandating sua sponte dismissal of in forma

pauperis actions that are frivolous or fail to state a claim.”). In performing a court’s mandated

function of sua sponte reviewing a complaint under 28 U.S.C. § 1915(e) and under § 1915A to

determine if it fails to state a claim upon which relief can be granted, a federal district court

applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure

12(b)(6). See, e.g., Tucker v. Angelone, 954 F. Supp. 134, 135 (E.D. Va. 1977) (“Under 28

U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c) the courts are directed to dismiss any

claims made by inmates that ‘fail to state a claim upon which relief could be granted’”).

The record reflects that Defendant Ahlbrandt has not been properly served in this case;

however, it is clear from the Complaint that the only allegations Plaintiff has made against

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Defendant Ahlbrandt arise from Plaintiff’s misidentification of him as one of the police officers

allegedly involved in assaulting Plaintiff on September 29, 2003. Since Defendant Ahlbrandt

has never been employed as a police officer, and since Plaintiff has not made any other

allegations against said Defendant, this lawsuit should be dismissed as against Defendant

Ahlbrandt for Plaintiff’s failure to state a claim upon which relief may be granted. 

III. CONCLUSION

For the foregoing reasons, it is respectively recommended that the motion for summary

judgment filed on behalf of Defendants Erie Police Department, Goozdich, and Talarico

[Document # 14] be granted.

It is further recommended that, pursuant to the authority granted to courts in the Prison

Litigation Reform Act, Plaintiff’s complaint be dismissed for failing to state a claim upon which

relief can be granted as against Defendant Ahlbrandt.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date

of service to file written objections to this Report and Recommendation. Any party opposing

the objections shall have seven (7) days from the date of service of objections to respond

thereto. Failure to file timely objections may constitute a waiver of any appellate rights.

S/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief U.S. Magistrate Judge

Dated: October 27, 2006

cc: The Honorable Sean J. McLaughlin 

United States District Judge

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