Pilchesky v. Federal Marshal's Office of the United States et al

Filing 102

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 7/31/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH W. PILCHESKY,

:
CIVIL ACTION NO. 3:14-0381

Plaintiff

:

v.

:

DEPUTY U.S. MARSHAL
BARONE, et al.,

(MANNION, D.J.)
(CARLSON, M.J.)

:
:

Defendants
MEMORANDUM
Pending before the court is the report of Magistrate Judge Martin C.
Carlson, (Doc. 99), in which he recommends that defendants’ motion for
summary judgment, (Doc. 84), be granted with respect to plaintiff’s remaining
Fourth Amendment claim. He also recommends that plaintiff’s cross-summary
judgment motion, (Doc. 85), be denied. Specifically, Judge Carlson
recommends that the court grant the motion for summary judgment of
defendant Deputy U.S. Marshals’ (“DUSM”) with respect to plaintiff’s
constitutional claim raised in this civil rights action alleging that the DUSMs
unlawfully searched his home, without a search warrant, looking for his
fugitive girlfriend who was wanted by state officials and for whom an arrest
warrant had been issued. Judge Carlson also finds that the DUSMs are
entitled to qualified immunity shielding them from liability. Upon review of
Judge Carlson’s report, plaintiff’s objections thereto, (Doc. 100), and
defendants’ brief in opposition to plaintiff’s objections, (Doc. 101), the court

will ADOPT IN ITS ENTIRETY the report and OVERRULE plaintiff’s
objections.

I.

BACKGROUND
By way of relevant background, on March 4, 2014, plaintiff Joseph W.

Pilchesky filed, pro se, a Bivens1 civil rights action pursuant to 28 U.S.C.
§1331. (Doc. 1). Plaintiff also filed motions to proceed in forma pauperis.
(Doc. 2, Doc. 3). His complaint was given preliminary consideration pursuant
to 28 U.S.C. §1915(e)(2), (Doc. 4), after which it was determined that plaintiff
had improperly named a federal agency as a defendant, i.e., U.S. Marshals
Office, and that his claims for specific sums of unliquidated damages should
be stricken from his complaint under Fed.R.Civ.P. 12(f). See FDIC v. Meyer,
510 U.S. 471, 483 (1994). Plaintiff was, however, permitted to file an
amended complaint and his in forma pauperis motions were granted. Plaintiff
filed his amended complaint on May 5, 2014, (Doc. 5), naming four Jane/John
Doe defendants. After his amended complaint could not be served on the Doe
defendants, plaintiff filed a second amended complaint on June 27, 2014,
(Doc. 10), in which he named Martin Payne, U.S. Marshal, as a defendant,di

1

Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971). A Bivens-type action, which alleges that a federal official
violated plaintiff’s constitutional rights, is the federal counterpart to a civil
rights action filed under 42 U.S.C. §1983. See Paton v. LaPrade, 524 F.2d 82
(3d Cir. 1975); Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001).
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as well as the original Jane/John Doe defendants. Plaintiff stated that after he
identified the Doe defendants, he would move to file a third amended
complaint. Judge Carlson, then directed service of plaintiff’s second amended
complaint upon defendant Payne and instructed plaintiff to move to amend his
pleading after he discovers the identities of the Doe defendants. (Doc. 12).
After being served, defendant Panye filed a motion to dismiss plaintiff’s
second amended complaint. (Doc. 20). Plaintiff then indicated that he wished
to move to amend his pleading to name the Doe defendants and Judge
Carlson allowed him to file such motion. (Doc. 26).
On January 5, 2015, plaintiff filed his third amended complaint (“TAC”)
naming as defendants DUSM Maggie Barone, Sharon Summa, Joseph
Brozowski, and Robert Lenahan. (Doc. 27). Since plaintiff did not re-name
Payne as a defendant in his TAC, Payne was terminated as a party and his
Doc. 20 motion was dismissed as moot. In his TAC, plaintiff alleges that
defendant DUSMs violated his rights under the Fourth Amendment when they
conducted a warrantless search of his home seeking to serve a valid arrest
warrant on his girlfriend Stephanie Tarapchak (“Tarapchak”). Plaintiff also
raised a Fourteenth Amendment class of one equal protection claim alleging
that defendants unfairly singled out his home to search for Tarapchak who
was wanted on a state arrest warrant.
On March 23, 2015, the four defendants jointly filed a motion to dismiss,
or alternatively, motion for summary judgment with respect to plaintiff’s TAC.
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(Doc. 32). Defendants also filed their brief in support, (Doc. 34), statement of
material facts, (Doc. 34-1), and exhibits. Plaintiff filed a motion for an
extension of time on July 8, 2015, (Doc. 44), which Judge Carlson construed
as a Rule 56(d) motion to defer ruling on summary judgment motions until
discovery is completed. Plaintiff did not file a brief in opposition to defendants’
dispositive motion or a response to their statement of material facts.
On January 27, 2016, Judge Carlson issued a report. (Doc. 50), in which
he recommended that defendants’ motion for summary judgment, (Doc. 32),
be granted, in part, with respect to plaintiff’s Fourteenth Amendment equal
protection claim. He also recommended that defendants’ summary judgment
motion be denied with respect to plaintiff’s Fourth Amendment claim regarding
the warrantless search of his home for a fugitive without prejudice to
defendants to re-assert their motion after discovery was completed. Further,
Judge Carlson recommended that plaintiff’s motion for an extension of time,
(Doc. 44), be granted insofar as its it was construed as a motion under
Fed.R.Civ.P. 56(d) to defer ruling on summary judgment motions until further
discovery regarding his Fourth Amendment claim. Defendants filed objections
to the report on February 10, 2016, (Doc. 53), and a brief in support of their
objections, (Doc. 55). Plaintiff did not file any objections to Judge Carlson’s
report. On February 29, 2016, plaintiff filed a motion for leave of court to file
an untimely answer to defendants’ objections, (Doc. 56), with his proposed
answer attached, (Doc. 56-1). On March 7, 2016, plaintiff filed a supplement
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to his answer to defendants’ objections, (Doc. 60).
After review of Judge Carlson’s report, (Doc. 50), the defendants’
objections thereto, (Doc. 53), and plaintiff’s responses, (Doc. 56, Doc. 60), the
court adopted in its entirety Judge Carlson’s report. (Doc. 62). The case was
then recommitted to Judge Carlson for further proceedings.
Following discovery, the parties filed their cross-motions for summary
judgment on March 13, 2017. (Doc. 84, Doc. 85). Subsequently, both motions
were briefed and exhibits were submitted.
On May 30, 2017, Judge Carlson issued his (Doc. 99)report. On June
12, 2017, plaintiff filed his objections to the report, (Doc. 100), and on June
23, 2017, defendants’ brief in opposition to plaintiff’s objections, (Doc. 101).

II.

STANDARD OF REVIEW2
When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of the
report to which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue,
649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent
of review is committed to the sound discretion of the district judge, and the
court may rely on the recommendations of the magistrate judge to the extent
it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000)
2

Since Judge Carlson states the applicable standard for summary
judgment in his report, (Doc. 99, pp. 8-9), the court does not repeat it herein.
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(citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.

III.

DISCUSSION
The court now considers plaintiff’s Fourth Amendment illegal search

claim. Plaintiff basically alleges that on December 30, 2013, defendants
unlawfully entered and searched his home located at 819 Sunset Street,
Scranton, Pennsylvania, when they possessed an arrest warrant for his
girlfriend Tarapchak. Since Judge Carlson has detailed the undisputed facts
of this case that are supported by the evidence as well as the applicable legal
standards, the court adopts them and will not repeat them, in detail, herein.
Recently, the Third Circuit considered the issue of what the applicable
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standard is for officials to enter a home with an arrest warrant to search for a
fugitive. See United States v. Vasquez–Algarin, 821 F.3d 467 (3d Cir. 2016).3
The Third Circuit held that “[i]n order to enter a home pursuant to an arrest
warrant, law enforcement officers must possess ‘probable cause to believe
[the] arrestee resides at and is then present within the residence.’” Estate of
Martin v. U.S. Marshals Service Agents, 649 Fed.Appx. 239, 242 (3d Cir.
2016) (quoting United States v. Vasquez–Algarin, 821 F.3d 467, 480 (3d Cir.
2016)). As Judge Carlson thoroughly explains, “the undisputed evidence
demonstrates that the deputy marshals had probable cause to believe that
Stephanie Tarapchak resided with Pilchesky, at least part of the time, and was
within the home when they arrived, and, therefore, the deputies were
authorized under existing Fourth Amendment jurisprudence to enter the
premises to attempt to arrest her pursuant to a valid arrest warrant.” (Doc. 99,
p. 8). Judge Carlson details the precise information which the deputy
marshals had when they arrived at plaintiff’s house on December 30, 2013.
(Id., pp. 3-4). The evidence also shows that the deputy marshals entered the
house for the purpose of executing an arrest warrant on Tarapchak. Plaintiff
argues that Judge Carlson erred in finding that the deputy marshals had

3

In his report, (Doc. 99, pp. 11-15), Judge Carlson examines the Third
Circuit’s decision in Vasquez-Algarin and he correctly applies it to the facts of
this case. The court adopts this portion of Judge Carlson’s report and
incorporates it herein by reference.
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probable cause to enter his house and that there was insufficient evidence in
the record to make such a finding.
The court finds, as a matter of law, that the stated information provided
sufficient probable cause for the deputy marshals to believe Tarapchak
resided at plaintiff’s house, at least fifty percent of the time, and was present
in the house on December 30, 2013. In determining if the deputy marshals
had probable cause, “the relevant question is whether the facts and
circumstances within the knowledge of the Defendants, when viewed in
relation to the totality of the circumstances, were sufficient to warrant a person
of reasonable prudence and caution to believe that [Tarapchak] was residing
and present within the residence at the time of the [search].” Adams v.
Springmeyer, 17 F.Supp.3d 478, 495 (W.D.Pa. 2014) (citation omitted). “The
constitutionality of the Defendants’ conduct must be considered in light of the
information that was available to them at the time of their actions.” Id. (citation
omitted). “When probable cause exists, a law enforcement officer may act
without undertaking an exhaustive investigation to validate his or her
understanding of the relevant factual circumstances.” Id. at 497. Although,
“the existence or absence of probable cause generally presents a question of
fact for the jury”, Adams, 17 F.Supp.3d at 498 (citing Montgomery v. De
Simone, 159 F.3d 120, 124 (3d Cir. 1998)), “[a] court can conclude that
probable cause existed as a matter of law only if the evidence, when viewed
in the light most favorable to the nonmoving party, would not support a finding
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to the contrary.” Id. (citing Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d
Cir. 2003)).
The court finds that plaintiff’s attempt to rely on the facts of the
Vasquez-Algarin case to support his contention that the deputy marshals did
not have probable cause in his case is unavailing. As defendants explain,
(Doc. 101, pp. 9-10), in their brief in opposition to plaintiff’s objections:
First, Mr. Pilchesky conceded in his own complaint and deposition
testimony that Ms. Tarapchak resided at 819 Sunset Street. See
SMF [Doc. 90] ¶¶ 9-23. Second, although the DUSMs in this case
relied upon similar information as the DUSM in Vasquez-Algarin,
viz., a tip and police information, the DUSMs did here what the
DUSM in Vasquez-Algarin did not. DUSM Summa specified that
she relied on information provided by Ms. Tarapchak’s
ex-husband, whose children were staying with Ms. Tarapchak at
the 819 Sunset Street address. See SMF ¶¶4-5 (citing Supp.
Interrogatory Resp. of Sharon Summa (Ex. F)). Unlike the
unspecified tips provided by undisclosed informants in
Vasquez-Algarin, the DUSMs here, presented specific information
that Mr. Tarapchak told officers that Ms. Tarapchak lived at the
819 Sunset Street address at least 50% of the time. See Supp.
Interrogatory Resp. of Sharon Summa (Ex. F to SMF). In addition,
to the information provided by Mr. [Alex] Tarapchak, DUSM
Summa did her own personal research and relied upon
information provided by the Pennsylvania Attorney General that
Ms. Tarapchak resided at the address with her paramour Mr.
Pilchesky. See SMF ¶¶4-5. Neighbors also corroborated that Ms.
Tarapchak resided in the home. See 3d Am. Compl. (Introduction
paragraph.) at 2.; SMF [¶’s 29-30].
Also, as defendants note, Tarapchak’s ex-husband, Alex Tarapchak,
was not “like the anonymous sources found to be insufficient in
Vasquez-Algarin, the ex-husband of Ms. Tarapchak should know where his
ex-wife lived, as they had minor children together, and thus, would be a
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reliable source of information.” (Doc. 101, p. 10 n. 1) (citing SMF ¶¶3-23).
Additionally, “... Mr. Tarapchak reported that on that day he had telephone
calls from his daughter, Fallon, who told her father that she was with her
mother at Pilchesky’s home that day.” (Doc. 90, ¶¶7-8). Further, the Third
Circuit in Vasquez-Algarin, 821 F.3d at 481, stated that “once the predicate
of residency is established, that alone carries significant weight in establishing
probable cause to believe that the arrestee is present, necessarily reducing
the quantum of proof needed to meet Payton’s second prong.”
Since the court finds that no genuine issue of material fact exists as to
whether the deputy marshals had probable cause to believe that Tarapchak
was residing in Pilchesky’s Sunset Street house and was present within the
house at time of the search, and since the deputy marshals entered the house
with a warrant for Tarapchak’s arrest, defendants’ summary judgment motion
will be granted and plaintiff’s summary judgment motion will be denied. The
facts of Vasquez-Algarin are distinguishable from the instant case. In
Vasquez-Algarin, 821 F.3d at 481-82, the evidence showed that the deputy
marshal had significant doubt whether the arrestee actually resided at the
North 13th Street, Harrisburg, PA house and he indicated that he wanted
someone to answer the door after he knocked so he could try and get consent
to enter the house.4 The Third Circuit also indicated that in concluding that the
4

Specifically, at trial, the Deputy Marshal testified that he continued to
(continued...)
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intended arrestee (Rivera) lived at the house in question, “[the deputy] did not
identify the number of informants, their reliability based on any prior
interactions he may have had with them, the specific information they related,
or even whether he obtained information from ‘informants on the street’
firsthand or through the other officer.” Id. at 480. On the contrary, the evidence
in the instant case shows no such doubt and demonstrates that the deputy
marshals relied on corroborated and specific information and, that they had
probable cause. See Vasquez-Algarin case, 821 F.3d at 480 (Considering the
“totality of the circumstances” “in the context of second-hand information,
encompasses considerations such as the basis and reliability of the
information and the receiving officer’s ability to corroborate its content.”)
(citations omitted).
Even if Tarapchak’s daughter Fallon did not give the deputy marshals
consent to search plaintiff’s house, an issue which is disputed by the parties,
based on the totality of the circumstances, they still had ample probable cause
to believe that Tarapchak lived in the house and was present at the time of the
search based on the information they had. See Estate of Martin v. U.S.
Marshals Service Agents, 649 Fed.Appx. at 242-43. Thus, as Judge Carlson

4

(...continued)
knock on the door of the apartment since “[t]he address was not the address
of record for Mr. Rivera [the fugitive subject to an arrest warrant], so we
wanted to knock and attempt to gain contact with somebody inside and gain
their consent to search the address.” Vasquez-Algarin, 821 F.3d at 471.
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notes, (Doc. 99, p. 5 n. 1), the consent issue does not need to be addressed.
Finally, Judge Carlson finds the undisputed evidence shows that the
deputy marshals are also entitled to qualified immunity since a reasonable
officer could have concluded that Tarapchak resided at plaintiff’s Scranton
home, at least half of the time, and that she was present at his house at the
time of their entry. Plaintiff argues that Judge Carlson erred in finding that the
deputy marshals are entitled to qualified immunity since they lacked probable
cause to enter his house. The court finds that Judge Carlson did not err with
respect to his qualified immunity recommendation.
“Qualified immunity bars claims against government officials ‘as long as
those officials’ actions d[id] not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Paoli
v. Stetser, 651 Fed.Appx. 123, 125 (3d Cir. 2016). “Qualified immunity exists
to give ‘government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who
knowingly violate the law.’” Id. at 126. The qualified immunity analysis has two
prongs. Pearson v. Callahan, 555 U.S. 223, 232 (2009). One prong of the
analysis is whether the facts that the plaintiff has alleged or shown make out
a violation of a constitutional right. Id. The other prong of the analysis is
“whether such right was clearly established in light of the specific factual
context.” Paoli, 651 Fed.Appx. at 125 (citing Saucier v. Katz, 533 U.S. 194,
201 (2001).
12

Defendants’ evidence shows that they did independent research and
relied on specific and sufficient information, including statements of plaintiff’s
neighbors and Alex Tarapchak, that was corroborated. (Doc. 99, p. 17, Doc.
90-6, p. 2). Plaintiff contends defendants’ evidence was not credible, including
the information from unidentified neighbors, an unnamed person in the
Pennsylvania Attorney General’s Office and from Alex Tarapchak, and that it
was based largely on hearsay. He also states that his evidence, including
Tarapchak’s Declaration that she did not reside in his house, creates disputed
factual issues as to whether the deputy marshals had probable cause. While
plaintiff attempts to discredit each particular piece of evidence upon which the
deputy marshals relied, Judge Carlson properly considered all of the evidence
submitted by the parties and found that the deputy marshals had probable
cause based on the totality of the circumstances. See Maryland v. Pringle,
540 U.S. 366, 371, 124 S.Ct. 795 (2003) (probable cause “deals with
probabilities and depends on the totality of the circumstances.”). Plaintiff
contends that further investigation would have revealed that Tarapchak did
not reside in his house 50% of the time. However, “[i]f the Defendants had
probable cause to believe that [Tarapchak] was residing and present within
the [819 Sunset Street] residence on [December 30, 2013], ‘the likely result
of any additional investigation that could have been conducted is irrelevant.’”
Adams, 17 F.Supp.3d at 497 n. 18 (quoting Dintino v. Echols, 243 F.Supp.2d
255, 264 (E.D.Pa. 2003)).
13

As discussed, the court agrees with Judge Carlson’s probable cause
determination for the reasons detailed in his report. “It is well-settled that ‘an
arrest warrant founded on probable cause implicitly carries with it the limited
authority to enter a dwelling in which the suspect lives when there is reason
to believe the suspect is within.’” Paoli, 651 Fed.Appx. at 125 (citing Payton
v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371 (1980)). “If an officer does
not have reason to believe a suspect resides at the dwelling to be searched,
he may not enter the home to effect an arrest without obtaining a search
warrant for the home in the absence of exigent circumstances.” Id. at 125-26
(citing United States v. Vasquez–Algarin, 821 F.3d 467 (3d Cir. 2016) (In
Paoli, the Third Circuit noted that the Vasquez–Algarin case “requir[es]
officers to have reason to believe that an arrestee lives in the residence
subject to a Payton search and otherwise treating the home as a third party’s
home”).
The deputy marshals had probable cause, based on their investigation,
to believe that Tarapchak was in plaintiff’s house on the day in question and
that she lived there at times, and they were attempting to apprehend a fugitive
suspect for whom an arrest warrant had been issued on December 19, 2013
by the Lackawanna County Court, charging her with several offenses,
including drug delivery resulting in death, 18 Pa.C.S.A. §2506. “Based on the
facts before [the deputy marshals] at the time, there is no reason to think that
[they were] plainly incompetent or knowingly violating the law.” Id. at 126;
14

Ziglar v. Abbasi, 137 S.Ct. 1843, 1866-67 (2017) (Supreme Court stated that
“an official loses qualified immunity only for violating clearly established law”
and that “qualified immunity protects ‘all but the plainly incompetent or those
who knowingly violate the law.’”) (citation omitted).
Judge Carlson finds that “no reasonable deputy United States Marshal
would have believed that his or her act of entering a home where they
reasonably believed [“based upon information that they had received from law
enforcement, neighbors, and Tarapchak’s own family”] a fugitive or other
defendant subject to a valid arrest warrant was residing had violated the
Fourth Amendment.” (Doc. 99, pp. 8, 24). The court concurs with Judge
Carlson’s recommendation that the qualified immunity defense of defendants
be granted. See Paoli, 651 Fed.Appx. at 125; Ziglar, 137 S.Ct at 1867 (“if a
reasonable officer might not have known for certain that the conduct was
unlawful—then the officer is immune from liability.”).
Accordingly, the court shall adopt Judge Carlson’s report, (Doc. 99), and
overrule plaintiff’s objections, (Doc. 100). Defendants’ summary judgment
motion, (Doc. 84), shall be granted. Plaintiff’s motion for summary judgment,
(Doc. 85), shall be denied. An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: July 31, 2017
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