Tarapchak et al v. Lackawanna County et al

Filing 321

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Mark A Kearney on 10/23/17. (ao)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STEPHANIE TARAPCHAK
v.
LACKAWANNA COUNTY, et al.

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CIVIL ACTION
NO. 15-2078

KEARNEY, J.

October 23, 2017

MEMORANDUM
While in custody awaiting trial on multiple felony and misdemeanor charges, the Court of
Common Pleas allowed Dr. Stephanie Tarapchak the privilege of home detention. After months
of compliance, she slipped up and admittedly, albeit very briefly, went outside her defined home
area. Upon reporting, the County director responsible for the home detention program held a
prison misconduct hearing without notice to obtain facts to report to the judge before bail
revocation. Through a series of adjournments following her requests to have judges and lawyers
excused, a judge did not hold a hearing on the Commonwealth’s immediate motion for bail
revocation based on the home detention violation for several months. She admits violating the
home detention program. But with the extensive aid of her non-lawyer friend Joseph Pilchesky,
she still pro se sued everyone involved, including judges and lawyers, alleging they deprived her
of due process before taking her liberty as a bailee. Following extensive analysis, we allowed
her to proceed on a supervisory liability claim against Lackawanna County. She failed to adduce
the identified evidence at trial and we granted Lackawanna County’s motion for judgment
following her case.

She now asks for a new trial.

After careful review of the transcript, we

confirm Ms. Tarapchak failed to produce evidence to allow a reasonable jury to find for her on

the supervisory liability claim against Lackawanna County.

In the accompanying Order, we

deny Ms. Tarapchak’s motion for new trial.
I.

Background

After her January 2, 2014 arrest on multiple charges returned by a grand jury relating to
the drug distribution and perjury, 1 Ms. Tarapchak could not post bail and served months in
custody as a pretrial detainee.2 On May 2, 2014, Pennsylvania Court of Common Pleas Judge
Vito Geroulo placed Ms. Tarapchak on house arrest in a defined area with electronic monitoring
as a condition of release. 3 After months of apparent compliance with the house arrest, Ms.
Tarapchak allegedly violated the terms of her house arrest on October 22, 2014 by leaving the
area defined by her electronic ankle bracelet.4
The next day, Patrick Lynn, the Director of Lackawanna County’s house arrest program,
caused Lackawanna County to arrest Ms. Tarapchak for violating the terms of her house arrest.5
On October 24, 2014, Director Lynn went to the Lackawanna County Prison to conduct a
misconduct hearing with Ms. Tarapchak concerning her house arrest violation.6 Ms. Tarapchak
refused to participate.7 Director Lynn created a report which found Ms. Tarapchak violated the
terms of her house arrest and recommended a judge should revoke her bail upon motion.8 The
Pennsylvania Attorney General moved to revoke Ms. Tarapchak’s bail.9 On November 7, 2014,
Judge Geroulo began the bail revocation hearing. 10 Ms. Tarapchak asked for a continuance.
After a series of recusals of judges and lawyers caused by Ms. Tarapchak’s motions, the state
court rescheduled Ms. Tarapchak’s continued bail revocation hearing on April 4, 2015 where
Judge Michael Barrasse found she violated the conditions of her bail by violating terms of house
arrest.11 The state court continued her pre-trial custody and, following the jury’s conviction of
her on the underlying state law charges, sentenced Ms. Tarapchak to prison.

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While awaiting her state court trial, Ms. Tarapchak through her boyfriend non-lawyer
Joseph Pilchesky sued Director Lynn, Lackawanna County, and others under 42 U.S.C. § 1983.12
She alleged several claims for violations of her due process rights.13 Ms. Tarapchak also alleged
supervisory liability Monell claims against the County for failing to train Director Lynn and for a
custom of unconstitutional misconduct hearings.14
We dismissed all but Ms. Tarapchak’s Monell claim at summary judgment.15 We allowed
this claim because Director Lynn answered discovery which could have been interpreted as
defining a common custom for the internal misconduct hearings violative of the County’s
policies and possibly creating a custom of disregarding the policy.16 As specifically defined in
our memorandum partially denying summary judgment, the sole issue left for trial consisted of
Ms. Tarapchak’s Monell claim against the County by: 1) creating a custom of illegal misconduct
hearings; and 2) failing to properly train Director Lynn how to hold misconduct hearings. 17
After several continuances of the date certain trial including to try to find counsel for Ms.
Tarapchak, we began a jury trial where Ms. Tarapchak called two witnesses before resting her
case: Director Lynn and Robert LeBar, the prosecutor from the Pennsylvania Attorney General’s
Office who had handled her criminal charges in state court. 18 At all times including in the
pretrial conference, during voir dire and examining witnesses, Ms. Tarapchak competently
represented herself and demonstrated an acuity of mind we would expect of a medical doctor.
First, Ms. Tarapchak called Director Lynn.19 Ms. Tarapchak asked Director Lynn about
the formal misconduct hearings. 20 Director Lynn testified as the Director of Lackawanna
County’s House Arrest Program, he holds approximately one hundred formal misconduct
hearings per year. 21 Director Lynn testified when county officials took Ms. Tarapchak into
custody on October 23, 2014, he told Ms. Tarapchak he would hold a misconduct hearing with

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her in a few days’ time.22 Director Lynn testified he did not give notice to Ms. Tarapchak’s
lawyer about the misconduct hearing.23 Director Lynn admitted he routinely fails to give notice
about misconduct hearings to counsel in other cases.24
Ms. Tarapchak asked Director Lynn about his training. 25 Director Lynn testified
Lackawanna County employed him for approximately twenty years.26 Director Lynn testified he
had been trained as he worked his way up through the ranks to become the director of the Home
Detention Program.27 Director Lynn admitted he has no training as a law enforcement office and
lacks arrest training. 28 Ms. Tarapchak did not ask Director Lynn what type of training
Lackawanna County gave him concerning misconduct hearings.
Ms. Tarapchak also asked Director Lynn about her misconduct hearing. Director Lynn
testified he met with Ms. Tarapchak in his office the day after Ms. Tarapchak violated the terms
of her house arrest.29 At the meeting, Ms. Tarapchak admitted violating the terms of her house
arrest.30 After the meeting, Lackawanna County officials took Ms. Tarapchak into custody.31
Director Lynn informed Ms. Tarapchak he would visit the Lackawanna County Prison within
two days to conduct a misconduct hearing about her house arrest violation.32 On October 24,
2014, Director Lynn went to the Lackawanna County Prison to conduct Ms. Tarapchak’s
misconduct hearing.33 Ms. Tarapchak chose not to participate or answer any of Director Lynn’s
“silly questions.” 34 Director Lynn testified a misconduct hearing is not a bail revocation
hearing.35 The misconduct hearing is a chance for Ms. Tarapchak to tell her side of the story for
the report Director Lynn sends to the judge.36 Director Lynn stressed a misconduct hearing is
only an administrative proceeding.37 Director Lynn testified Ms. Tarapchak’s bail would not be
revoked until she appeared before a judge for a bail revocation hearing.38

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But Ms. Tarapchak went no further. She did not ask Director Lynn about the substance
of the other misconduct hearings. Nor did Ms. Tarapchak ask Director Lynn whether policy
makers in Lackawanna County knew or assented to Director Lynn’s policy of holding formal
misconduct hearings without counsel. Ms. Tarapchak did not ask Director Lynn whether his
practice of conducting formal misconduct hearings without counsel is permanent. Ms. Tarapchak
also did not ask Director Lynn whether any other members of the House Arrest Program failed to
include counsel in formal misconduct hearings. We have no idea whether Director Lynn ever
acted as judge and prosecutor in any other misconduct hearing.

All we heard is Director Lynn

viewed this “hearing” as an investigative tool to allow him to report facts to the judge.
Ms. Tarapchak then called Attorney Robert LeBar to testify. Mr. LeBar prosecuted Ms.
Tarapchak’s state court criminal case.

He works for the Pennsylvania Attorney General’s

Office.39 He moved to revoke Ms. Tarapchak’s bail after she violated the terms of her house
arrest. 40 Mr. LeBar testified his office moved to revoke bail and served Ms. Tarapchak’s
attorney on October 24, 2014, two days after Ms. Tarapchak’s admitted violation of house
arrest.41 Mr. LeBar testified he attended a November 7, 2014 bail revocation hearing for Ms.
Tarapchak before Judge Geroulo.42 Ms. Tarapchak asked for a continuance of her bail revocation
hearing because she wanted Judge Geroulo to recuse himself.43 Mr. LeBar testified on April 10,
2015, Ms. Tarapchak attended a bail revocation hearing before Judge Michael Barasse. 44
Following Mr. LeBar’s testimony, Ms. Tarapchak rested.
Lackawanna County moved for judgment as a matter of law under Federal Rule of Civil
Procedure 50(a) arguing Ms. Tarapchak had not produced evidence for a reasonable jury to find
in her favor on her Monell claim. After hearing argument, we granted the County’s motion for

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detailed reasons on the record and entered judgment as a matter of law in the County’s favor.
Ms. Tarapchak timely moved for a new trial.
II.

Analysis

Ms. Tarapchak argues we abused our discretion by granting Lackawanna County’s
motion for judgment as a matter of law on her Monell claim. She seeks a new trial because we:
1) failed to appoint counsel; 2) did not allow her friend to assist her at counsel table; 3) allowed a
witness to remain in the courtroom after testifying; 4) permitted uniformed prison guards to sit in
the gallery; 5) allowed counsel for Lackawanna County to use prejudicial language during his
opening statement; and 6) improperly denied her motion to compel Director Lynn to produce
documents. Each of her arguments lack merit.
Ms. Tarapchak moves for a new trial under Fed. R.Civ. P. 59. While the text of Rule 59
does not specify grounds for a new trial,45 courts have granted a new trial where “(1) there is a
significant error of law, to the prejudice of the moving party; (2) the verdict is against the weight
of the evidence; (3) the size of the verdict is against the weight of the evidence; or (4) counsel
engaged in improper conduct that had a prejudicial effect on the jury.” 46 “The decision to grant
or deny a new trial is confided almost entirely to the discretion of the district court.”47 “When
the granting or denial of a new trial is contested on appeal, substantial deference must generally
be given to the decision of the trial judge, who saw and heard the witnesses and has the feel of
the case which no appellate printed transcript can impart.”48 A court should only exercise its
discretion to grant a new trial when “the verdict was against the weight of the evidence when the
failure to do so would result in injustice, or would shock the conscience of the
court.”49 Requests for a new trial are disfavored by the law.50 A trial court will not grant a new

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trial on the basis of trial error unless the error resulted in prejudice.51 In other words, no injustice
will be found in non-prejudicial trial errors.52
1. We did not abuse our discretion in granting the County’s motion for judgment.
Ms. Tarapchak argues she is entitled to a new trial because we abused our discretion in
granting Lackawanna County’s motion for judgment as a matter of law on Ms. Tarapchak’s
Monell claim. Federal Rule of Civil Procedure 50(a) provides “[i]f during a trial by jury a party
has been fully heard on an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue, the court may determine the issue against that
party and may grant a motion for judgment as a matter of law ... with respect to a claim or
defense that cannot under the controlling law be maintained or defeated without a favorable
finding on that issue.”53 “Generally, a Rule 50 motion should be granted only if evidence is not
sufficient for a jury reasonably to find liability.”54 After viewing all the evidence which has been
tendered and should have been admitted, in the light most favorable to the party opposing the
motion, the court must consider whether any reasonable jury could decide in that party's
favor. 55

Although judgments as a matter of law should be granted sparingly, a mere

scintilla of evidence is not enough for the court to deny the motion. 56 The question is not
whether there is literally no evidence supporting the nonmoving party but whether there is
evidence upon which the jury could properly find a verdict for the nonmoving party.57
Ms. Tarapchak’s only claim at trial consisted of a Monell claim under § 1983. Before trial
and to defeat summary judgment, Ms. Tarapchak argued Lackawanna County: 1) had a custom
of conducting unconstitutional formal misconduct hearings; and 2) acted in a deliberately
indifferent manner by failing to train Director Lynn to conduct constitutional misconduct

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hearings.58 At the close of her case, we had no evidence which could allow a reasonable jury to
find in her favor on either of these theories.
a. Ms. Tarapchak failed to adduce evidence the County had a custom of
conducting illegal misconduct hearings.
A municipality may be liable under § 1983 when it causes the constitutional violation at
issue.59 To succeed on her Monell claim, Ms. Tarapchak had to prove she “(1) possessed a
constitutional right of which [she] was deprived; (2) the municipality had a policy [or custom];
(3) the policy [or custom] amounted to deliberate indifference to [her] constitutional right; and
(4) the policy [or custom] was the moving force behind the constitutional violation.” 60 To
establish a custom under Monell, Ms. Tarapchak had to prove “a given course of conduct,
although not specifically endorsed or authorized by law, is so well settled and permanent as
virtually to constitute law.”61 Practices so permanent and well settled are ascribable to municipal
decision makers.62 Even if a custom or policy has not been formally approved by an appropriate
decision maker, it may fairly subject a municipality to liability on the theory that the relevant
practice is so widespread as to have the force of law.63
In our summary judgment memorandum, we specified the evidence necessary to show
denial of due process to Ms. Tarapchak: lack of prior notice of this hearing; depriving the
opportunity to retrieve and proffer evidence; and, Director Lynn held the hearing even though he
is not impartial.

We also opined lack of counsel at this misconduct hearing is not required as

this is not a critical stage of the proceedings.

As we opined, even if Ms. Tarapchak showed

Director Lynn engaged in one or more of these deprivations, Ms. Tarapchak must show the
County can incur supervisory liability.
At trial, Ms. Tarapchak showed Director Lynn failed to provide notice and personally
held the hearing even though he is not impartial. She met the first step of supervisory liability.

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But she did not adduce evidence of the practice or custom amounting to deliberate
indifference which became the moving force in the due process violation. Following the close
of her case, the jury heard only about Director Lynn holding the hearing and not allowing her
counsel. Ms. Tarapchak now limits her argument to the County having a practice and custom of
holding illegal misconduct hearings by denying bailees the right to counsel during the hearing.64
We understand why she limits her present argument: the only evidence she adduced of conduct
common in multiple misconduct hearings is based on Director Lynn’s admission he never
contacts counsel for the bailees. But she is arguing a point we rejected on summary judgment:
neither Director Lynn nor the County deprived her of due process by not notifying a public
defender of her violating a home arrest condition. She focused on a non-issue when she needed
to show a custom or practice of depriving bailees of notice or the opportunity to retrieve and
proffer evidence or Director Lynn personally participated in these hearings.
Ms. Tarapchak did not introduce instances where Director Lynn or another County
official violated a bailee’s due process rights.

Even if she did show those instances, Ms.

Tarapchak also needed to show evidence the County knew of this policy or custom and endorsed
it, making the policy so well settled and permanent as to have the force of law. Director Lynn
admitted he conducts approximately one hundred misconduct hearings every year.65 He also
admits never alerting counsel about a formal misconduct hearing, 66 but we already held Ms.
Tarapchak is not entitled to counsel at this misconduct hearing as it is not a critical stage of the
proceeding. Ms. Tarapchak failed to present evidence constitutional violations occurred at other
misconduct hearings. Ms. Tarapchak produced no evidence policy-making County officials
knew Director Lynn held misconduct hearings himself without notice and without affording
notice or the opportunity to gather materials.

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Judgment as a matter of law for the County is appropriate because Ms. Tarapchak
presented no evidence a reasonable jury could use to find in her favor.

Allowing Ms.

Tarapchak’s Monell claim to go to the jury would require the jury to wildly speculate about other
instances of alleged misconduct and the County’s knowledge. Given this lack of evidence, the
jury could not have found for Ms. Tarapchak.
b. Ms. Tarapchak did not show the County failed to adequately train
Director Lynn on conducting constitutional misconduct hearings.
Ms. Tarapchak failed to introduce evidence a reasonable jury could use to find the
County failed to properly train Director Lynn to conduct constitutional misconduct hearings.
“Establishing municipal liability on a failure to trail claim under § 1983 is difficult. A plaintiff
pressing a § 1983 claim must identify a failure to provide specific training that has a causal
nexus with their injuries”67 Ms. Tarapchak also had to “demonstrate that the absence of [the]
specific training can reasonably be said to reflect a deliberate indifference to whether the alleged
constitutional depravations occurred.”68 Ms. Tarapchak had to identify “the specific training [the
County] should have offered.” 69 “Mere proof that an injury could have been avoided if the
municipal officer or employee had ‘better or more training is not enough to show municipal
liability’ under a ‘failure to train’ Monell claim.”70 Ms. Tarapchak had to prove the County’s
failure to train Director Lynn caused a pattern of violations.71
At trial, Ms. Tarapchak asked Director Lynn only three questions about his training.72
Ms. Tarapchak asked Director Lynn about his training as director of the House Arrest Program.
Director Lynn responded he gained experience and training as he worked his way up the ranks.73
Ms. Tarapchak then asked Director Lynn whether he had any law enforcement training or arrest
training. Director Lynn responded “no” to both questions.74 This evidence is not enough to
show the County acted in a deliberately indifferent manner by failing to train Director Lynn. Ms.

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Tarapchak did not introduce evidence of additional training the County could have given
Director Lynn. Ms. Tarapchak did not show the County failed to train Director Lynn at all. Nor
did Ms. Tarapchak introduce evidence showing a failure to train caused a pattern of
constitutional violations.
We deny Ms. Tarapchak’s motion for a new trial on her failure to train argument because
she failed to produce evidence a reasonable jury could use to find in her favor. Allowing Ms.
Tarapchak’s failure to train claim to go to the jury again would have required wild speculation
about what other training is available and whether it would have made a difference in Ms.
Tarapchak’s case. Given the lack of evidence, the jury could not have found the County failed to
adequately train Director Lynn how to conduct constitutional misconduct hearings. We deny Ms.
Tarapchak’s motion for a new trial on her failure to train claim.
2. Ms. Tarapchak is not entitled to a new trial because we failed to persuade
lawyers to volunteer as trial counsel.
Ms. Tarapchak claims we abused our discretion by not appointing her trial counsel. Ms.
Tarapchak argues she is entitled to a new trial because: 1) we stopped searching for counsel to
represent Ms. Tarapchak; 2) Ms. Tarapchak’s medication interfered with her ability to represent
herself; and 3) prison officials withheld Ms. Tarapchak’s trial documents until she arrived in
court.75
Ms. Tarapchak has neither a constitutional nor statutory right to counsel in this civil
rights matter.76 We have the statutory authority to “request” appointed counsel for indigent civil
litigants. 77 However, we cannot force private attorneys to represent indigent clients because
Congress has limited our authority to “make coercive appointments of counsel.” 78 We have
“broad discretion” to determine whether appointing counsel in a civil case is appropriate.79

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Ms. Tarapchak claimed she could not adequately represent herself at trial based on her
lack of legal experience and medical condition. We repeatedly implored Ms. Tarapchak to retain
private counsel but she failed to do so. 80 She represented she could go forward or she was
attempting to privately retain counsel. After we denied her first request because she failed to
show she could not afford an attorney, Ms. Tarapchak moved in forma pauperis under 28 U.S.C.
§ 1915(e) on the eve of a date certain trial asking us to appoint pro bono counsel for her. After
We granted Ms. Tarapchak’s motion after analyzing the Tabron81 factors and sought counsel to
represent her.82 We spent months searching for counsel to represent Ms. Tarapchak pro bono.83
As we advised the parties, after contacting over ten (10) qualified attorneys about representing
Ms. Tarapchak with no success, and with the continued trial date quickly approaching, we
reluctantly ordered Ms. Tarapchak represent herself. 84 Ms. Tarapchak now claims our efforts
prejudiced her, as she claims “it is well settled pro se inmates should be afforded counsel at
trial.”85
Ms. Tarapchak is incorrect in a civil case. Ms. Tarapchak has no right to counsel in a
civil case. While we are sensitive to Ms. Tarapchak’s medical condition and her ability to try a
difficult case, we are limited in our ability to appoint her counsel. We did all we could to provide
Ms. Tarapchak with pro bono counsel. We cannot force private attorneys to take a case they do
not wish to take. As the plaintiff in a civil case, Ms. Tarapchak bears the ultimate burden of
securing counsel. Our search for pro bono counsel for Ms. Tarapchak did not result in prejudice
to her.
We find no basis for appointment of counsel because of her medicines.

Upon

reassignment, we promptly held a hearing on her boyfriend non-lawyer Joseph Pilchesky’s
attempt to proceed as a “next friend” and denied this request. She always presented as competent

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and knowledgeable on the steps being taken in court, particularly after either the Court, or in
some instances, the County’s experienced counsel, explained the legal steps to her.

When she

did not understand the steps, she asked the proper questions. She explained, with much skill,
why she needed documents not sent along with her in transfer from her original facility and
persuaded us to grant a continuance. We heard no basis for a guardian or other representative to
protect Ms. Tarapchak because of her medicine. We watched Ms. Tarapchak for over a year.
Ms. Tarapchak also claims she suffered prejudice because correctional personnel
withheld her trial materials for an extended period of time. We disagree. Ms. Tarapchak failed to
present evidence she lacked access to her files. In any event, we granted Ms. Tarapchak another
last-minute adjournment of her trial date so she could receive her materials and prepare for
trial.86 As she has proven no actual prejudice, we deny Ms. Tarapchak’s motion for a new trial
on these grounds.
3. Ms. Tarapchak is not entitled to have her boyfriend sit at counsel table.
Ms. Tarapchak claims she suffered prejudice because we forbade her friend Mr.
Pilchesky from sitting at counsel table with her. Ms. Tarapchak had no right to have Mr.
Pilchesky sit at counsel table. Mr. Pilchesky is neither a member of the Bar of this Court nor a
party to Ms. Tarapchak’s lawsuit.87 To the contrary, state officials prosecuted Mr. Pilchesky for
practicing law without a license.88 We held an extensive hearing and denied Mr. Pilchesky “next
friend” status.89 Ms. Tarapchak has not shown how Mr. Pilchesky’s presence at counsel table
would have assisted her with the presentation of her case. Ms. Tarapchak has shown no prejudice
resulting from lack of his assistance during the presentation of her evidence.
Ms. Tarapchak argues she suffered prejudice because the County used an assistant to
operate electronic devices to display evidence.90 She also claims she suffered prejudice because

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the screen on her table failed, and while counsel for County offered the use of his screen, she
could not see it.91 Ms. Tarapchak has no right to be informed of the use of technology in her
presentation of evidence. Nor does the County’s use of an assistant give her the right to have Mr.
Pilchesky sit at her table. Ms. Tarapchak has failed to show prejudice because her screen failed
or because Mr. Pilchesky sat in the gallery and not at her table.
4. Ms. Tarapchak is not entitled to remove Director Lynn from the courtroom
after his testimony.
Ms. Tarapchak claims she is entitled to a new trial because Director Lynn remained in the
courtroom for the entire trial. Ms. Tarapchak claims the lack of sequestration on Director Lynn
after his testimony prejudiced her. If a party wishes to sequester a witness, the party must move
to do so.92 Federal Rule of Evidence 615 allows the representative of a non-natural party to
remain in the courtroom during the entirety of a trial.93 Ms. Tarapchak did not move to sequester
Director Lynn. Regardless, Director Lynn is the County’s representative. No other Lackawanna
County officials attended the trial. We ruled Director Lynn could remain in the courtroom
throughout the trial and could do so following his testimony.94 Ms. Tarapchak has not shown
how Director Lynn’s presence in the courtroom prejudiced her.
5. Ms. Tarapchak is not entitled to remove the Commonwealth’s uniformed prison
guards from the gallery during trial.
Ms. Tarapchak argues she suffered prejudice because the Commonwealth’s uniformed
prison guards sat in the front row of the gallery. She did not ask for this relief during trial. Even
if she did, we disagree she has a right to remove the prison guards.
In Holbrook v. Flynn, 95 the Supreme Court held criminal defendants did not suffer
prejudice when uniformed state troopers remained in the courtroom during the defendant’s trial.
The defendants moved to have the troopers dress in civilian clothes during the trial.96 The trial

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court denied their request. On appeal, the defendants argued they suffered prejudice because the
jury would be more likely to conclude they were guilty based on the trooper’s presence in the
courtroom.97 The Supreme Court disagreed. The Court held the presence of uniformed officers
did not prejudice the defendants based on the need to provide courtroom security for incarcerated
defendants. 98 The court held “we simply cannot find an unjustifiable risk of prejudice in the
spectacle of four such officers quietly sitting in the first row of a courtroom’s spectator
section.”99 The same logic applies here.
Ms. Tarapchak did not suffer prejudice because the Commonwealth’s uniformed prison
guards remained in the courtroom during her trial. Unlike Holbrook, Ms. Tarapchak never
moved to have the prison guards dress in civilian clothes.

Also unlike Holbrook, Ms.

Tarapchak’s case is civil, not criminal. If criminal defendants are not prejudiced by uniformed
officers in the courtroom, it seems unlikely Ms. Tarapchak could suffer prejudice in her civil
case. As in Holbrook, the prison guards did no more than sit quietly in the front row of the
gallery. Prison guards are necessary to insure the continued custody of an incarcerated person
such as Ms. Tarapchak. Ms. Tarapchak has shown no evidence the jury is more or less likely to
find against her based on the prison guard’s presence. Regardless, Ms. Tarapchak suffered no
prejudice because her case did not reach the jury. We granted Lackawanna County’s motion for
judgment as a matter of law, removing the jury from consideration.
6. Ms. Tarapchak is not entitled to a new trial because of comments in opening
statements.
Ms. Tarapchak argues she suffered prejudice because the County’s counsel made
inappropriate comments during opening statements. Ms. Tarapchak claims counsel highlighted
her incarcerated status, her criminal conviction, and noted her previous legal actions against
Lackawanna County.100 Ms. Tarapchak claims counsel maliciously made these statements with

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the intent to improperly influence the jury. 101

Ms. Tarapchak claims these statements

improperly influenced the jury and no jury instruction could remedy the problem.
We disagree. Ms. Tarapchak did not object when counsel for Lackawanna County made
the allegedly prejudicial comments. Generally, a court will not grant a new trial where the
moving party did not object at trial. 102 Regardless, the jury never made a decision in Ms.
Tarapchak’s case because we granted the County’s motion for judgment as a matter of law. The
jury’s verdict cannot have been tainted by allegedly prejudicial comments if the jury never
rendered a verdict in the first place. Ms. Tarapchak’s claim fails.
7. Ms. Tarapchak is not entitled to a new trial because dismissed Director Lynn
failed to produce discovery.
Ms. Tarapchak claims she is entitled to a new trial because Director Lynn failed to
produce evidence Ms. Tarapchak felt she needed to prove her Monell claim. Ms. Tarapchak
claims we violated her due process rights by allowing Director Lynn to withhold records of other
inmate’s misconduct hearings. 103 Director Lynn claimed the discovery requests were overly
broad and excessively burdensome.104 Ms. Tarapchak claims she could not prove Lackawanna
County had a practice or custom of illegal misconduct hearings without obtaining the records
from Director Lynn.105
A motion for a new trial because a party allegedly withheld evidence is best analyzed
under Federal Rule of Civil Procedure 60(b)(3).106 Rule 60 provides a court may “relieve a party
or its legal representative from a final judgment, order, or proceeding for the following reasons:
... (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct
by an opposing party....”107 Evidence to support a new trial under Rule 60(b)(3) must be “clear
and convincing.” 108 Non-production of evidence does not, by itself, require a new trial. 109
Discovery misconduct can require a new trial “only if Plaintiff was deprived of the opportunity

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to fully and fairly present her case.”110 Granting a new trial in response to a discovery violation
is a “drastic” penalty, only appropriate in “extreme” circumstances.111 Courts will only grant a
new trial for a discovery misconduct, where a party shows willfulness or bad faith and prejudice
on the part of the other party or their attorney.112
Ms. Tarapchak claims she could not prove a practice or custom of illegal misconduct
hearings because we did not compel Director Lynn to produce discovery relating to other
similarly situated persons. On October 14, 2016, Ms. Tarapchak opposed Director Lynn’s
summary judgment motion. Ms. Tarapchak’s motion also asked us to compel Director Lynn to
respond to her interrogatories and requests for the production of documents.113 On October 17,
2016, we ordered Director Lynn to provide fulsome responses to Ms. Tarapchak’s discovery
requests. 114 On October 18, 2016, Director Lynn responded to Ms. Tarapchak’s motion,
attaching several documents including the completed answers to interrogatories and document
requests. 115 We then denied Ms. Tarapchak’s earlier motion and noting, in an abundance of
caution, Ms. Tarapchak may not have received everything she required from Director Lynn in
the attachments to his motion and directed the County to file a certification of full production.116
On October 24, 2016, the County filed a certificate of full production, stating it had answered all
relevant requests for documents and interrogatories.117
Ms. Tarapchak argues she did not receive everything she requested in discovery, despite
County’s certification. A closer inspection of Director Lynn’s responses to Ms. Tarapchak’s
request for documents shows Director Lynn claimed several of the requests fell outside of the
Rule 26 requirements.118 Ms. Tarapchak asked for a copy of every letter Director Lynn sent to a
judge about misconduct hearings in 2014 and a copy of every misconduct report Director Lynn
authored in 2014. 119 Director Lynn objected, claiming Ms. Tarapchak’s interrogatories were

17

“overly broad, unduly burdensome, and unlikely to lead to the discovery of discoverable
information.”120 Director Lynn noted each letter and report are kept in an individual prisoner’s
file would require excessive effort to produce in discovery.121
Ms. Tarapchak is only entitled to a new trial for a discovery violation if counsel for the
County willfully denied Ms. Tarapchak access to discovery or acted in bad faith. There is no
evidence of willful misconduct or bad faith on this record. The County’s counsel determined
producing the hundreds of documents Ms. Tarapchak sought posed an undue burden. Had Ms.
Tarapchak moved to compel, we may have ordered further discovery.
certification, we may not have.

But given the

Even assuming we came to a different conclusion, we cannot

say, without more, the County violated the discovery rules so flagrantly as to warrant a new trial
under Rule 60. While it is unfortunate Ms. Tarapchak thinks she did not have the benefit of all
the discovery she desired to prepare for her trial, the County’s actions did not rise to the level of
fraud, misrepresentation, or misconduct. We deny Ms. Tarapchak’s motion for a new trial based
on alleged discovery violations.
III.

Conclusion

We deny Ms. Tarapchak’s motion for a new trial in the accompanying Order. We did not
abuse our discretion. To the contrary, we remained entirely mindful of Ms. Tarapchak’s pro se
status as evidenced by, among other steps, our detailed findings on summary judgment
essentially detailing Director Lynn’s deprivation of Ms. Tarapchak’s due process rights to liberty
and specifying the proof necessary for supervisory liability, in working to find volunteer counsel
for Ms. Tarapchak and her often intervening friend Mr. Pilchesky, and in compelling the County
to certify as to full production of discovery. We granted the County’s motion for judgment as a
matter of law because Ms. Tarapchak failed to present evidence a reasonable jury could use to

18

find in her favor on Ms. Tarapchak’s Monell claim. We stand by our earlier decision. Ms.
Tarapchak has not shown prejudice relating to her other claims.

1

Third Amended Complaint, ECF Doc. No. 125, p. 1. We addressed Ms. Tarapchak’s alleged
underlying conduct in our earlier decisions on motions to dismiss and for summary judgment.
We are now only addressing those facts material to her arguments seeking a new trial, with many
of the facts incorporated in our analysis.
2

Id.

3

Id.

4

Id. at 1-2.

5

Id. at 2.

6

Id.

7

Id.

8

Id.

9

ECF Doc. No. 315, p. 68. The Pennsylvania Attorney General’s Office prosecuted Ms.
Tarapchak in her underlying criminal case.
10

ECF Doc. No. 193, p. 31-32.

11

Id. at 77.

12

ECF Doc. No. 125, p. 1.

13

Id. at p. 5-7, 9.

14

Id. at p. 7, 9.

15

ECF Doc. No. 239 p. 22-23.

16

Id.

17

Id.

19

18

ECF Doc. No. 315.

19

Id. at 38.

20

Id. at 39.

21

Id.

22

Id.at 47-48.

23

Id. at 49.

24

Id.

25

Id. at 38.

26

Id.

27

Id.

28

Id.

29

Id. at 44.

30

Id. at 55.

31

Id. at 45.

32

Id. at 47-48.

33

Id. at 48, 52.

34

Id. at 47.

35

Id. at 52.

36

Id. at 46.

37

Id. at 47.

38

Id. at 52-53.

39

Id. at 56.

20

40

Id.

41

Id. at 69-70.

42

Id. at 56.

43

Id. at 75.

44

Id. at 76-77.

45

Dean v. Specialized Sec. Response, 876 F. Supp. 2d 549, 552–53 (W.D. Pa. 2012).

46

Dee v. Borough of Dunmore, No. 05-1342, 2010 WL 1626908 * 2 (M.D.Pa. April 21, 2010).

47

Blancha v. Raymark Indus., 972 F.2d 507, 512 (3d Cir.1992) (citing Allied Chem. Corp. v.
Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980)).
48

Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir.1990)(internal quotations
omitted).
49

Dorsett v. Am. Isuzu Motors, Inc., 805 F. Supp. 1212, 1216 (E.D. Pa.), aff'd, 977 F.2d 567 (3d
Cir. 1992)(citing Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1352-53 (3d Cir.1991)).
50

Price v. Trans Union, L.L.C., 839 F.Supp.2d 785, 792 (E.D.Pa.2012) (citing Williamson v.
Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir.1991)).
51

Id.

52

Dean, 876 F.Supp. 2d at 1353.

53

Fed.R.Civ.P. 50(a).

54

Goodman v. Pennsylvania Turnpike Commission, 293 F.3d 655, 665 (3d Cir. 2002)
(citing Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993)).
55

Brown v. Daniels, No. CIV A. 03-4242, 2006 WL 2060647, at *2 (E.D. Pa. June 15,
2006)(citing Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.1993)).
56

Walter, 985 F.2d at 1238.

57

Id.

58

ECF Doc. No. 315, p. 13, 18.

21

59

Monell v. Dep’t of Soc. Servs. Of City of N.Y., 436 U.S. 658, 694 (1978).

60

Vargas v. City of Philadelphia, 783 F.3d 962, 974 (3d Cir. 2015)(quoting City of Canton, Ohio
v. Harris, 489 U.S. 378, 389-91 (1989)).
61

Watson v. Abington Twp., 478 F.3d 144, 155-56 (3d Cir. 2007)(quoting Bielevicz v. Dubinon,
915 F.2d 845, 849 (3d Cir. 1990)).
62

Bielevicz, 915 F.2d at 850.

63

Id. (internal quotations and citations omitted).

64

A bailee such as Ms. Tarapchak is not entitled to counsel during a formal misconduct hearing
because it is not a “critical stage” of the pretrial proceedings. U.S. v. Wade, 388 U.S. 218, 227
(1967). A stage is “critical” where “counsel’s absence might derogate from the accused’s right to
a fair trial.” U.S. v. A.R., 38 F.3d 699, 704 (3d Cir. 1994). In our summary judgment
memorandum, we held Ms. Tarapchak is not entitled to counsel at her formal misconduct hearing
because lack of counsel does not impair Ms. Tarapchak’s right to a fair trial. ECF Doc. No. 239,
p. 16.
65

ECF Doc. No 315, p. 39.

66

Id. at 50.

67

Reitz v. City of Bucks, 125 F.3d 139, 145 (3d Cir. 1997)(citing Colburn v. Upper Darby
Township, 946 F.2d 1017, 1030 (3d Cir. 1991)).
68

Id. (citing Colburn, 946 F.2d at 1030).

69

Id.

70

White v. Brommer, 747 F. Supp. 2d 447, 463 n.42 (E.D.Pa. 2010)(quoting Kline ex rel Arndt v.
Mansfield, 225 F. App’x 624, 629 (3d Cir. 2007); see also City of Canton, Ohio v. Harris, 489
U.S. 378, 391 (“neither will it suffice to prove that an injury or accident could have been avoided
if an officer had had better or more training, sufficient to equip him to avoid the particular injurycausing conduct.”)).
71

Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir.2000)(internal quotations and citations
omitted.
72

ECF Doc. No. 315, p. 38.

73

Id.

22

74

Id.

75

ECF Doc. No 309, p. 5-7.

76

Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002).

77

Id. (quoting 28 U.S.C. § 1915(e)(1)).

78

Mallard v. U.S. Dist. Court for S. Dist. Of Iowa, 490 U.S. 296, 310 (1989).

79

Montgomery, 294 F.3d at 498.

80

See e.g. ECF Doc. No. 161.

81

Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993).

82

ECF Doc. No. 257.

83

ECF Doc. No. 274.

84

Id.

85

ECF Doc. No. 309, p. 5.

86

ECF Doc. No. 281, p. 2.

87

ECF Doc. No. 303.

88

ECF Doc. No. 75, p. 2-3. Commonwealth v. Pilchesky, CP-35-cr-0001075-201. The
Commonwealth charged Mr. Pilchesky with several counts of the unauthorized practice of law
under 42 P.A.C.S. § 2524(a). After several interlocutory appeals, Mr. Pilchesky awaits trial.
89

ECF Doc. No. 120, p. 1; ECF Doc No. 119. In our Findings of Fact and Conclusions of Law
(ECF Doc. No. 119) we ruled Mr. Pilchesky did not meet the “next friend” requirements in
relation to Ms. Tarapchak. Mr. Pilchesky has not demonstrated Ms. Tarapchak has some
“mental incapacity,” lacks access to the courts, or has a similar disability as required by
Whitmore v. Arkansas, 495 U.S. 149, 164 (1990).
90

ECF Doc. No. 309, p. 5.

91

Id. at 6-7.

92

Fed. R. Evid. 615.

23

93

Fed. R. Evid. 615(b).

94

United States v. Brown, 547 F.2d 36, 38 (3d Cir. 1976)(“The purpose of [Rule 615] is to
prevent witnesses from hearing the testimony of other witnesses.”) Sequestration is unnecessary
for a witness who has already testified because they are finished presenting evidence and cannot
be influenced by another witness’s testimony. See id. As Director Lynn testified first, he could
not have been influenced by Mr. LeBar’s subsequent testimony. Ms. Tarapchak suffered no
prejudice from Director Lynn’s presence in the courtroom after his testimony.
95

Holbrook v. Flynn, 475 U.S. 560, 562 (1986).

96

Id. at 563.

97

Id. at 564-65.

98

Id. at 565.

99

Id. at 571.

100

ECF Doc. No. 317, p. 2-3.

101

Id. at 3.

102

Shushereba v. R.B. Indus., Inc., 104 F.R.D. 524, 530 (W.D. Pa. 1985)(“Generally, courts are
not inclined to favorably view a motion for a new trial where the complaining party made no
effort at trial to call the alleged error to the court's attention or to make an
appropriate objection and state distinctly that matter to which he objects and the grounds for
his objection.”); Frankel v. Burke's Excavating, Inc., 269 F.Supp. 1007, 1012–13
(E.D.Pa.1967), aff'd, 397 F.2d 167 (3d Cir.1968).
103

ECF Doc. No. 317, p. 3-8.

104

ECF Doc. No. 214, p. 13-14.

105

ECF Doc. No. 317, p. 8.

106

Price v. Trans Union, L.L.C., 839 F. Supp. 2d 785, 799 (E.D.Pa. 2012).

107

Fed.R.Civ.P. 60(b)(3).

108

Brown v. Pa. R.R. Co., 282 F.2d 522, 527 (3d Cir.1960).

109

Price, 839 F. Supp. 2d at 801.

24

110

Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir.1983).

111

James v. Melendez, 567 F. Supp. 2d 480, 490 (S.D.N.Y. 2008).

112

Id.

113

ECF Doc. No. 202.

114

ECF Doc. No. 209.

115

ECF Doc. No. 214.

116

ECF Doc. No. 216.

117

ECF Doc. No. 217. We note while counsel for Director Lynn signed the discovery
documents claiming Ms. Tarapchak’s discovery requests were excessively burdensome, counsel
for Lackawanna County signed the certification stating it had turned over all discovery.
118
ECF Doc. No. 214, p. 13. A party does not commit a discovery violation by failing to produce
discovery falling outside the requirements of Rule 26. Discovery requests which excessively
burden a party fall outside the scope of Rule 26. Fed.R.Civ.P. 26(b)(2)(C)(iii). A party may
refrain from producing discovery if such production would result in an excessive burden on the
party. Id. When determining whether production of discovery constitutes an excessive burden,
courts weigh: 1) the needs of the case; 2) the amount in controversy; 3) the party’s resources; 4)
the importance of the issues to the case; 5) whether the evidence is necessary to resolve the
issues; and 6) the ability to obtain the same evidence elsewhere. Trask v. Olin Corp., 298 F.R.D.
244, 265 (W.D. Pa. 2014). While we did not conduct an excessive burden analysis at the time we
issued our October 18, 2016 order, we need not do so now. Ms. Tarapchak has not proven
Lackawanna County or its attorney acted in bad faith by claiming the excessive burden exception
during discovery.
119

Id.

120

Id.

121

Id.

25