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Lombardo v. Tokar

United States District Court, M.D. Pennsylvania

November 26, 2014

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

Francis Anthony Joseph Lombardo, Plaintiff, Pro se, Wilkes-Barre, PA.

For Tokar, PA State Parole Officer, Officer Hussein, PA State Parole Officer, Defendants: Gary H. Dadamo, Robert G. Hanna, Jr., Lavery Faherty Patterson, Harrisburg, PA.

MEMORANDUM

MALACHY E. MANNION, United States District Judge.

Pending before the court is the report of Magistrate Judge Susan E. Schwab, (Doc. 143), which recommends that the plaintiff's motion for summary judgment, (Doc. 87), be denied and the defendants' cross-motion for summary judgment, (Doc. 134), be granted. Upon review of Judge Schwab's report and the plaintiff's 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. 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. 1.). The plaintiff was, however, permitted to file an amended complaint, which he did on November 22, 2011. (Doc. 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. 21).

Following a lengthy discovery dispute, the defendants filed their initial motion for summary judgment on August 15, 2013. (Doc. No. 75). By report dated December 16, 2013, Judge Schwab reviewed the defendants' motion, which addressed only the plaintiff's claim of an unlawful seizure, and recommended that it be granted. (Doc. 109). In addition, she noted that the plaintiff had pending his own motion for summary judgment, (Doc. 87), which addressed his claim of an unlawful search and was 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. By memorandum, (Doc. 112), and order, (Doc. 113), dated January 29, 2014, Judge Schwab's report was adopted in its entirety and the matter was remanded for further proceedings.

Upon remand, on March 4, 2014, the defendants filed a brief in opposition to the plaintiff's pending motion for summary judgment with exhibits, (Doc. 116), along with a statement of facts responsive to that of the plaintiff's, (Doc. 117).

The defendants requested, (Doc. 128), and were granted, (Doc. 130), the opportunity to file a supplemental motion for summary judgment on the search issue before the court, which was filed on June 17, 2014, along with exhibits, (Doc. 134), a statement of facts, (Doc. 135), and supporting brief, (Doc. 136). The plaintiff filed a brief in opposition to the defendants' supplemental motion for summary judgment on July 21, 2014, (Doc. 139), along with a response to their statement of material facts, (Doc. 140), and supporting exhibits, (Doc. 141). The defendants filed a reply brief in support of their motion on August 4, 2014. (Doc. 142).

On August 26, 2014, Judge Schwab issued the pending report in which she recommends that the plaintiff's motion for summary judgment be denied and the defendants' cross-motion for summary judgment be granted. (Doc. 143). The plaintiff filed objections to the report on September 12, 2014, (Doc. 152), and the defendants responded to the plaintiff's objections on September 25, 2014, (Doc. 153).

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, 100 S.Ct. 2406, 65 L.Ed.2d 424 (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.

In his objections, the plaintiff argues that Judge Schwab did not correctly apply the summary judgment standard[2]. Specifically, he argues that Judge Schwab resolved factual disputes in favor of the defendants, the moving parties, instead of considering the evidence in a light most favorable to him as the non-moving party[3].

In considering the plaintiff's initial objection, the only remaining issue in this case is whether the plaintiff was subject to an unlawful search of his property by the defendants. In response to the defendants' statement of material facts in support of their motion for summary judgment on this issue, the plaintiff admitted the following facts[4]. As of October 14, 2009, Marc Keating, the plaintiff's cousin, was on parole, and his approved residence while on parole was 3 James Street, Pittston, Pennsylvania. Despite his approved residence of James Street, Mr. Keating stayed at 90[5] Market Street, Pittston, Pennsylvania " once in a while." The plaintiff lived at the 90 Market Street residence from July through December of 2009. During ...


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