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Ascenzi v. O'Brien

June 16, 2008

MICHAEL J. ASCENZI, PLAINTIFF,
v.
OFFICER O'BRIEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

I. Introduction

On June 14, 2005, Michael J. Ascenzi, filed this civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of his Fourth Amendment rights in connection with the execution of a July 21, 2004, anticipatory search warrant of his apartment which ultimately led to his arrest, a parole violation, and a conviction for the possession with intent to deliver a controlled substance.*fn1 The sole remaining defendant in this action is Pennsylvania State Police ("PSP") Detective O'Brien.

Presently before the Court are three discovery related motions filed by Ascenzi:

(1) Motion to Strike (Dkt. Entry 86); (2) Motion for an In Camera Hearing (Dkt. Entry 87); and (3) Motion for Finger Print Analysis and Chemical Analysis (Dkt. Entry 92).*fn2 Defendant O'Brien has responded to each motion. For the reasons that follow, Plaintiff's motions will be denied.

II. Relevant Factual Background

On July 21, 2004, Ascenzi was living with his father in Nanticoke, Pennsylvania. On that date, PSP Detective O'Brien, with the assistance of unidentified officers, executed an anticipatory search warrant of Plaintiff's father's home. A quantity of heroin was found in the home as well as $1,557 in unmarked cash.

Ascenzi alleges that Detective O'Brien fabricated the information to obtain an anticipatory search warrant of his home based on an unreliable "junky" confidential informant ("CI"). The Affidavit of Probable Cause for the search warrant was predicated on three drug buys. (Dkt. Entry 22-2, Plaintiff's Response to the Answer, Exh. 1, Affidavit of Probable Cause.) According to the probable cause affidavit, on two occasions, O'Brien "with the assistance of a Confidential Informant," contacted an individual named "Mike" to purchase drugs. On both occasions, O'Brien drove the CI to the home of Americo Ascenzi, Plaintiff's father. Each time the CI went into the residence with $220 and returned with 10 small envelopes containing a brown powdery substance that later tested positive for heroin. The CI was checked for contraband and currency prior to, and after the transaction. (Id.) Ascenzi was arrested and ultimately pled guilty to possession of heroin.

Ascenzi charges that O'Brien violated his Fourth Amendment rights as he did not have probable cause to arrest him or search his home. Plaintiff seeks monetary relief.

III. Relevant Procedural History

Since the filing of this action the parties have engaged in discovery which has resulted in Plaintiff filing several motions to compel, based, in part, on Defendant's untimely responses to properly served discovery and Defendant's failure to disclose the identify of his CI. Plaintiff's first and second motions to compel, addressing, inter alia, those issues, were resolved on March 19, 2007. (See Dkt. Entry 44.) On April 25, 2007, the Court directed that all discovery be completed by June 8, 2007, and that dispositive motions, if any, be filed by July 9, 2007. (See Dkt. Entry 58.)

On May 2, 2007, Ascenzi served a "Second Round of Interrogatories." (See Dkt. Entry 77-2, Defendant's Answers to Second Round of Interrogatories.) Defendant responded to this request on July 3, 2007. (Id.) The briefing of Defendant's July 3, 2007, Motion for Summary (dkt. entry 65) was stayed pending the resolution of this motion to compel related to Ascenzi's second round of interrogatories and Plaintiff's motions for appointment of counsel. In the interim, a telephone conference was held on August 6, 2007, during which Ascenzi was granted the opportunity to conduct further discovery. (See Dkt. Entry 80.) Defendant was granted until August 27, 2007, to file his responses to Plaintiff's additional interrogatories. (Dkt. Entry 84.)

Plaintiff's motions for counsel were denied (Dkt. Entry 85) and Ascenzi's motion to compel related to his second set of discovery was resolved on January 23, 2008. (See Dkt. Entry 96.) After receiving an enlargement of time, Defendant filed his brief and exhibits in support of his motion for summary judgment. (See Dkt. Entries 102 - 103.) In the ...


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