ANTHONY MONTEZ BROWN, Plaintiff
v.
PATROLMAN ANTHONY CALABRO, et al., Defendants

CIVIL NO. 3:12-CV-01065

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

This case is decided July 12, 2012 by recommendation of Magistrate Judge J. Andrew Smyser.
That recommendation was then adopted by order of District Judge A. Richard Caputo.
Then on appeal to the Third Circuit, per curiam opinion before Circuit Judges Scirica, Hardiman and Greenaway.

All three of these opinion make reference to the “ninja”, an allegation that this words as name-calling was defamatory.

From Judge Smyser’s version of the facts:

The plaintiff commenced this action by filing a complaint and an application to proceed in forma pauperis. The complaint named Luzerne County as the defendant. We granted the plaintiff’s application for leave to proceed in forma pauperis. After reviewing the complaint in accordance with 28 U.S.C. § 1915(e)(2), we concluded that it failed to state a claim upon which relief may be granted. We granted the plaintiff leave to file an amended complaint.

The plaintiff filed an amended complaint. The defendants are: 1) Patrolman Anthony Calabro; 2) Patrolman Jessica Bartalotta; 3) Chief Paul Porfirio; and 4) Judge David W. Lupas. The plaintiff alleges the following facts in his amended complaint.

The plaintiff told defendant Calabro that he wanted to file charges against Mark Davenport for making terroristic threats and shooting his house, his car, and the West Pittston pool with a BB gun. Defendant Bartalotta asked the plaintiff about his firearms. The plaintiff told her that his firearms had nothing to do with filing charges against Davenport, but he offered to show her his license to carry the firearms. She told him that he could lose his guns one of these days. Defendants Calabro and Bartalotta refused to file charges against Davenport. The plaintiff then called defendant Porfirio to complain about defendants Calabro and Bartalotta. Defendant Porfirio told the plaintiff that there was nothing that he could do and that if the plaintiff sued Davenport bad things would happen.

Months later the plaintiff reported that Charles Hughes Jr. had committed a crime, but the plaintiff was falsely accused of the crime that he had reported. Defendant Calabro released Hughes, who was under the influence of drugs and alcohol and who had a gun. Defendant Bartalotta told the plaintiff that she was not going to process him because she did not like him. Defendant Porfirio then started to process the plaintiff. He threatened the plaintiff and told him to put his hat and face mask on for his mug shot. He also told an FBI agent that the plaintiff was a ninja, thereby defaming his character. Although the plaintiff wished to remain silent and to have a lawyer, defendant Calabro completed a police report and made the plaintiff sign it.

Defendant Lupas dismissed the plaintiff’s Rule 600 motion. During a court proceeding, he allowed everyone to speak except the plaintiff and he refused to let the plaintiff see a doctor.

The plaintiff is seeking compensatory damages, dismissal of his criminal charges, the return of his firearms, and restoration of his gun permit.

And in discussion:

Although the plaintiff seeks return of his firearms, he does not allege that the named defendants seized his firearms. Nor does he allege anything regarding the circumstances of any seizure of his firearms.

The plaintiff is seeking to hold defendant Porfirio liable for making him put his hat and facemask on for his mug shots. But he has not alleged how that violated his rights.

The plaintiff claims that defendant Porfirio’s statement to an FBI agent that the plaintiff is a ninja defamed his character. It is doubtful that such a statement could be seen as defamatory. But, even assuming for the sake of argument that the statement was defamatory, it was not a violation of the plaintiff’s constitutional rights.

The plaintiff claims that defendant Calabro prepared a police report and made him sign it even though he had wished to remain silent and to have a lawyer. The plaintiff has not alleged that any statements in the police report were used against him during a trial. Thus, he fails to state a claim upon which relief may be granted. See Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003)(holding that a plaintiff may not base a § 1983 claim on the mere fact that police questioned her in custody without providing Miranda warnings when there is no claim that the plaintiff’s answers were used against her at trial).

This Magistrate Judge recommendation for dismissal was adopted by District Judge A. Richard Caputo who wrote in opinion October 3, 2012:

Months later, Mr. Brown reported a crime that Charles Hughes, Jr. allegedly committed, but Mr. Brown was falsely accused of the crime. Defendant Calabro then discriminated against Plaintiff and released Mr. Hughes while he was under the influence of alcohol and possessed a gun. Plaintiff was then told by Defendant Bartalotta that he would not be processed because she did not like him. Defendant Porfirio then started to process Mr. Brown, but he was required to wear a hat and face mask for his mug shot. Defendant Porfirio also told an FBI agent that Mr. Brown was a ninja. Additionally, Mr. Brown wished to exercise his right to remain silent, but Defendant Calabro completed a police report and required Plaintiff to sign it.

and

Magistrate Judge Smyser also concludes that Mr. Brown’s claim seeking return of his firearm should be dismissed because he fails to allege that the named Defendants seized his firearms “nor does he allege anything regarding the circumstances of any seizure of his firearms.” (Id. at 8.) Additionally, the Magistrate Judge recommends dismissal of the claims against Defendant Porfirio because Plaintiff does not explain how being required to wear a hat and facemask during a mug shot violated his constitutional rights. Additionally, the Magistrate Judge concludes that Defendant’s Porfirio’s alleged statement that Plaintiff was a ninja did not amount to a constitutional violation. (Id.)

On subsequent appeal to the Third Circuit, the unanimous three judge panel writes:

Because the appeal presents no substantial question, we will summarily affirm the District Court’s order.

and

In the complaint, as amended, he claimed that the defendants – three Luzerne County police officers and one Court of Common Pleas judge – committed various forms of alleged misconduct, including: failing to arrest his neighbor for shooting a BB gun at Brown’s house; failing to arrest a driver for driving while intoxicated; defaming Brown by referring to him as a “ninja“; filing a police statement on Brown’s behalf under false pretenses; and prosecuting Brown for a crime committed by someone else.

and specific to the defamation claim:

[D]efamation is actionable under 42 U.S.C. § 1983 only if it occurs in the course of or is accompanied by a change or extinguishment of a right or status guaranteed by state law or the Constitution.” Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing Paul v. Davis, 424 U.S. 693, 701-12, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976)); see also Sturm v. Clark, 835 F.2d 1009, 1012 (3d Cir. 1987) (“Absent the alteration or extinguishment of a more tangible interest, injury to reputation is actionable only under state defamation law.”) (internal citation omitted). Here, Brown alleged only that Defendant Porfiro referred to him as a ninja. Brown did not allege that he suffered the extinguishment of a right or status guaranteed by state law or the Constitution, and has not stated a civil rights action for defamation.

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