Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Milcarek v. Sisak

United States District Court, W.D. Pennsylvania

April 11, 2014



CYNTHIA REED EDDY, Magistrate Judge.

Before the Court is Defendant Sisak's Motion to Dismiss Plaintiffs' Complaint for failure to state a claim for which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 4). For the following reasons, said motion will be denied.


Plaintiffs Joseph Milcarek, Sr. and Mary Catherine Milcarek reside at 2105 Sur Way, Pittsburgh, PA 15210. Complaint (ECF No. 1-2), at ¶¶ 1-2. On February 4, 2012, their son, Joseph Micarek, Jr. ("Milcarek Jr."), was driving a vehicle and was stopped by Defendant David Sisak, a Pittsburgh Police Officer, "because the license plate on the car was allegedly suspended." Id. at ¶ 8. Defendant Sisak "reportedly discovered that [Micarek Jr]. was the defendant in an active Protection from Abuse ("PFA") proceeding in which plaintiff was Kim Bobnes." Id. at ¶ 9. Kim Bobnes was a passenger in the vehicle at the time of the stop and identified herself to Defendant Sisak. Id. at ¶ 10. Defendant Sisak arrested Milcarek Jr. for "violating the PFA by having contact with Kim Bobnes."[1] Id. at ¶ 11.

Defendant Sisak also "allegedly observed a shotgun round on the driver's seat of the vehicle where [Milcarek Jr.] had been sitting." Id. at ¶ 12. Defendant Sisak applied for a search warrant of Plaintiffs' residence based on Defendant Sisak's "alleged observation of a shotgun round and his presumption that [their son, Milcarek Jr, ]. was in possession of that round." Id. at ¶ 13. In the Affidavit of Probable Cause in Support of the search warrant ("Affidavit"), Defendant Sisak alleged that Milcarek Jr.'s possession of the shotgun round was a "direct violation of the PFA." Id. at ¶ 14. Plaintiffs contend that this was "a materially false statement, as there was no prohibition in the PFA against Joseph Milcarek, Jr. possessing a firearm or ammunition." Id. at ¶ 15.

Plaintiffs claim that "according to the Affidavit, [Defendant Sisak] based his conclusion that [Milcarek Jr.] was in violation of the PFA for possession of the shotgun round on the boilerplate notice in the PFA that any PFA defendant may be charged with a federal offense under 18 U.S.C. § 922(g)(8) for possessing a firearm or ammunition while the PFA is in effect." Id. at ¶ 16. Plaintiffs assert that Defendant Sisak's conclusion that Milcarek Jr. was "directly violating the PFA because he may be charged with a federal offense' under 18 U.S.C. § 922(g)(8) is intentionally misleading because no violation of the PFA occurred under federal law, and even if it had it would not be a violation of the PFA but would be a separate offense to be charged by the federal government and not by the Pittsburgh Police." Id. at ¶ 17.

Plaintiffs further claim that "according to the Affidavit, [Defendant Sisak] arrested [Milcarek Jr.] for possessing the shotgun round in addition to the initial offense of violating the PFA for being in contact with the PFA Plaintiff, Kim Bobnes." Id. at ¶ 18. Defendant Sisak also stated in the Affidavit that he "believed that [Milcarek Jr.] possessed additional ammunition and firearms at his residence, " which Defendant Sisak asserted was a violation of 18 Pa.C.S. § 6105. Id. at ¶¶ 19, 20. Plaintiffs claim that this statement was materially false "because even if firearms or ammunition had been found at [Milcarek Jr.'s] residence, there would have been no violation of 18 Pa.C.S. § 6105. Furthermore, [Milcarek Jr.'s] alleged possession of the shotgun round could not have provided justification for his arrest, as stated by [Defendant Sisak] in the Affidavit, either as a direct violation of the PFA or as violation of § 6105." Id. at ¶ 21. The Affidavit states that Milcarek Jr.'s address was 2105 Sur Way, which is the same residence owned by his parents, the Plaintiffs. Id. at ¶¶ 22. However, Plaintiffs aver that "the officers serving the search warrant at 2105 Sur Way were told by neighbors that [Milcarek Jr.] did not reside at that address." Id. at ¶ 23.

Milcarek Jr. was in jail at the time the search warrant was executed and the officers allegedly knew that Plaintiffs were not home either. Id. at ¶¶ 24, 25. The officers serving the search warrant at Plaintiffs' address allegedly "gained entry to the home by breaking down the door, completely removing it from the hinges, " and "unnecessarily damaged a number of items in the home." Id. at ¶¶ 26, 27. After the officers were finished with the search, they "left the home unsecured, " allegedly "leaving the broken door leaning against the frame." Id. at ¶ 28.

Plaintiffs initiated this action in the Court of Common Pleas of Allegheny County, Pennsylvania. Plaintiffs claim that they "suffered psychological trauma as a result of the unexpected and unlawful intrusion into their home." Id. at ¶ 29. Additionally, Milcarek Sr., who allegedly suffers from a number of medical conditions, claims to have suffered physical harm and a loss of income as a result thereof. Id. at ¶¶ 30, 31. Plaintiffs contend that Defendant Sisak and the other unknown officers' conduct amounted to a violation of their Fourth Amendment rights and an invasion of privacy. Id. at ¶¶ 32-44.

On November 13, 2013, Defendant filed a Notice of Removal with this Court pursuant to 28 U.S.C. § 1443, asserting that this matter is a Federal Question because Plaintiffs seek relief pursuant to 42 U.S.C. § 1983 for violation of their Fourth Amendment rights. Notice of Removal (ECF No. 1). Plaintiffs did not contest removal to this Court. On December 17, 2013, Defendant filed a timely Motion to Dismiss in connection with Rule 12(b)(6) and a Brief in Support thereof. (ECF Nos. 4, 5). On January 21, 2014, Plaintiffs filed a Response Brief. (ECF No. 9). The matter has been fully briefed.

Standard of Review

In light of the Supreme Court's decision in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007), a complaint may be dismissed pursuant to Rule 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Phillips v. Co. of Allegheny , 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly , 550 U.S. at 570). While Conley v. Gibson , 355 U.S. 41, 45-46 (1957) allowed dismissal of a claim only if "no set of facts" could support it, under Twombly , and Ashcroft v. Iqbal , 556 U.S. 662 (2009), a claim for relief under Rule 12(b)(6) now "requires more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555; Iqbal , 556 U.S. at 678.

In Iqbal , the Supreme Court held that a claim is facially plausible when its factual content allows the court to draw a reasonable inference that the defendants are liable for the misconduct alleged. Fowler v. UPMC Shadyside , 578 F.3d 203 (3d Cir. 2009) (citing Iqbal , 556 U.S. at 678). The plausibility standard in Iqbal "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678. While well-pleaded factual content is accepted as true for purposes of whether the complaint states a plausible claim for relief, legal conclusions couched as factual allegations or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, " are not entitled to an assumption of truth. Iqbal , 566 U.S. at 678. "Where the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief.'" Iqbal , 566 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). In order to satisfy the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.