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Lombardo v. Tokar

United States District Court, Third Circuit

January 29, 2014

FRANCIS ANTHONY JOSEPH LOMBARDO, Plaintiff,
v.
JUSTIN TOKAR and MAIVAUN HOUSSIEN[1], Defendants.

MEMORANDUM

MALACHY E. MANNION, District Judge.

Pending before the court is the report of Magistrate Judge Susan E. Schwab which recommends that the defendants' motion for summary judgment be granted and that the instant action be remanded for further proceedings. (Doc. No. 109). Upon review of the report and the parties' objections thereto, the court will adopt the report in its entirety.

By way of relevant background, on October 14, 2011, the plaintiff filed the instant civil rights action pursuant to 42 U.S.C. §1983. (Doc. No. 1). His complaint was given preliminary consideration pursuant to 28 U.S.C. §1915(e)(2), after which it was determined that the plaintiff had failed to state a claim upon which relief can be granted. (Doc. No. 4). The plaintiff was, however, permitted to file an amended complaint, which he did on November 22, 2011. (Doc. No. 5). The basis of the plaintiff's amended complaint is that the defendants, who are Pittston City police officers, subjected him to an unlawful search and seizure on October 14, 2009.

The defendants filed an answer to the plaintiff's amended complaint on March 9, 2012. (Doc. No. 21).

Following a lengthy discovery dispute, the defendants filed the pending motion for summary judgment, (Doc. No. 75), a supporting brief, (Doc. No. 76), and a statement of material facts with exhibits, (Doc. No. 77). After having been granted an extension of time to do so, on September 3, 2013, the plaintiff filed a counter statement of facts, (Doc. No. 93); on September 5, 2013, he filed an opposing brief, (Doc. No. 94); and on September 12, 2013, he filed exhibits, (Doc. No. 98). A reply brief was filed by the defendants on September 17, 2013. (Doc. No. 100).

By report dated December 16, 2013, Judge Schwab reviewed the defendants' motion for summary judgment, which addresses only the plaintiff's claim of an unlawful seizure, and recommended that it be granted. (Doc. No. 109). In addition, she noted that the plaintiff has pending his own motion for summary judgment which addresses his claim of an unlawful search and is not yet ripe for review. As a result, Judge Schwab recommended that the matter be remanded for further proceedings with regard to the unlawful search claim.

On December 30, 2013, the defendants filed objections to the report and recommendation. (Doc. No. 110). The plaintiff filed objections on January 16, 2013. (Doc. No. 111).

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) (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.

Upon review of the defendants' filing, without any elaboration, the defendants simply object to Judge Schwab's report to the extent that it construes the amended complaint as setting forth a Fourth Amendment search claim. However, should this court agree that the amended complaint sets forth a claim for an unreasonable search, the defendants request that they be allowed an opportunity to file a cross-motion for summary judgment or, alternatively, that they be given leave to file a supplemental motion for summary judgment as to any unlawful search claim.

In considering the defendants' objection, the plaintiff alleges in his amended complaint that the defendants entered his residence without a warrant or probable cause and conducted a search of his belongings. Such allegations may form the basis of a §1983 claim based on the Fourth Amendment. See Reedv v. Evanson , 615 F.3d 197 (3d Cir. 2010); United States v. Silveus , 542 F.3d 993, 999 (3d Cir. 2008). Finding no error with the construction of the amended complaint by Judge Schwab, the court overrules the defendants' objection. Further, any request by the defendants to file a cross or supplemental motion for summary judgment addressing the unlawful search claim should be directed to Judge Schwab for her consideration upon remand.

Upon review of the plaintiff's objections, the plaintiff initially challenges Judge Schwab's determination that he had not established that a Fourth Amendment seizure had occurred.

In making her determination, Judge Schwab found the following facts, which the court agrees are supported by the record:

Before the date in question, Marc Keating ("Keating"), who is Lombardo's cousin, was on parole and occasionally slept over a house located at 90 Market Street. Keating and Lombardo had been doing maintenance on that residence. Lombardo, who had an arrangement with Keating, also stayed at 90 Market Street. While staying at 90 Market Street, ...

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