IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL J. PISKANIN : CIVIL ACTION

:

v. :

:

DET. GARY HAMMER, ET AL. : NO. 04-1321

MEMORANDUM

Padova, J. November 14, 2005

Plaintiff has brought this civil rights action pursuant to 42

U.S.C. §§ 1983 and 1985 against Detective Gary Hammer, the Colonial

Regional Police Department, Richard Lobach, Lieutenant Jim Kostura,

Todd L. Buskirk, and the County of Northampton asserting claims

arising from the search of Plaintiff’s residence and his subsequent

arrest, search and pre-trial detention. Before the Court are the

Motion to Dismiss filed by Defendants Hammer and the Colonial

Regional Police Department, the Motion to Dismiss filed by

Defendant Lobach, and the Motion for Judgment on the Pleadings

filed by Defendants Kostura, Buskirk, and the County of

Northampton. For the reasons which follow, the Court grants in

part and denies in part said Motions to Dismiss and grants the

Motion for Judgment on the Pleadings. 

I. BACKGROUND

The Amended Complaint alleges the following facts. Plaintiff

Michael Piskanin is an adult who is presently a pre-trial detainee

at Lehigh County Prison. (Am. Compl. ¶ 2.) Following an arson

fire at his previous residence, which Plaintiff believes was set by

his then landlord, he and his common-law wife made arrangements for

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a long term stay at the Holiday Inn, 300 Gateway Drive, Bethlehem,

Pennsylvania, beginning on or about September 27, 2003. (Id. ¶

10.) Plaintiff was subjected to an investigation by the Catasauqua

police department in connection with some counterfeit checks and

drivers licenses found at the fire scene. (Id.) Plaintiff was not

charged in connection with that investigation. (Id.) 

In February 2004, Richard Lobach, the manager of the Holiday

Inn, asked Plaintiff to leave. (Id.) Plaintiff served Lobach with

a written demand for a 30-day “Quit” notice. (Id.) While

intoxicated, and angry over Plaintiff’s demand for a “Quit” notice,

Lobach committed criminal mischief to Plaintiff’s room. (Id.)

Lobach then called the Colonial Regional Police Department to

falsely accuse Plaintiff of criminal mischief. (Id.)

Det. Hammer responded to the call and executed a “warrantless,

non-consensual” search of Plaintiff’s room with Lobach. (Id.)

Det. Hammer then called the Catasauqua Police Department. (Id.)

Seeking an opportunity to become involved in a “career enhancing

counterfeit investigation,” Det. Hammer applied to District

Magistrate Barbara Schlegel for a felony warrant for Plaintiff’s

arrest based upon an Affidavit of Probable Cause charging Plaintiff

with criminal mischief in violation of 18 Pa. Cons. Stat. Ann. §

3304 (a)(1). (Id.) 

On the morning of March 10, 2004, Det. Hammer arrested

Plaintiff at the Microtel Motel, located in Lehigh County. (Id.)

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Det. Hammer searched Plaintiff and Plaintiff’s car and motel room,

seizing the contents of Plaintiff’s pockets, including his car keys

and wallet, and the contents of Plaintiff’s vehicle and motel room.

(Id.) He then removed Plaintiff from Lehigh County and took him to

Northampton County, where he appeared before District Magistrate

Schlegel. (Id.) District Magistrate Schlegel set bail at $10,000,

but failed to allow Plaintiff the opportunity to obtain a bail

bond. (Id.) Det. Hammer then took Plaintiff to Northampton County

Prison in lieu of $10,000 bail. (Id.) Plaintiff was not given the

opportunity to call bail bondsmen while he was in intake at

Northampton County Prison. (Id.) He was placed in a holding cell,

in an area with phones and the phone numbers of bail bondsmen, but

was removed from that area by Lt. Kostura, an officer at the

Northampton County Prison, before he could use the phones. (Id.)

Lt. Kostura removed Plaintiff from the holding cell to the

“Bubble,” where Plaintiff was placed on suicide watch. (Id.)

Plaintiff was ordered to remove his clothing when he was placed in

the Bubble, and a writ of habeas corpus, his glasses, his pen and

his religious “miraculos [sic] medal” were taken from him by Lt.

Kostura. (Id.) Plaintiff’s religious medal was lost or

deliberately withheld from Plaintiff for more than 30 days, causing

Plaintiff great emotional distress. (Id.) Although Lt. Kostura

purportedly placed Plaintiff in the Bubble because he was a suicide

risk, Plaintiff believes that he was actually placed in the Bubble

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1Todd L. Buskirk is identified in the Amended Complaint as

having been the Warden of the Northampton County Prison during the

relevant time period.

2The claims brought against Det. Hammer, Lt. Kostura and Todd

L. Buskirk are brought against them both individually and in their

official capacities.

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by Lt. Kostura to prevent him from accessing bail and to deprive

him of his constitutional rights, privileges and immunities as a

pre-trial detainee. (Id.) 

The Amended Complaint asserts claims against Lt. Kostura, Det.

Hammer and Buskirk1 for conspiracy to violate Plaintiff’s rights

under the Pennsylvania and United States Constitutions pursuant to

42 U.S.C. §§ 1983 and 1985 on March 10, 2004 (Count I); against Lt.

Kostura, Buskirk, Det. Hammer, the Colonial Regional Police

Department and the County of Northampton for conspiracy to violate

Plaintiff’s rights under Pennsylvania and federal law and the

Pennsylvania and United States Constitutions pursuant to 42 U.S.C.

§§ 1983 and 1985 on March 10, 2004 (Counts II and III); and against

Det. Hammer, Lobach and the Colonial Regional Police Department for

conspiracy to violate Plaintiff’s rights under Pennsylvania and

federal law and the Pennsylvania and United States Constitutions

pursuant to 42 U.S.C. §§ 1983 and 1985 from February 27 - March 10,

2004 (Counts IV and V).2

II. LEGAL STANDARD

Det. Hammer, the Colonial Regional Police Department, and

Holiday Inn manager Richard Lobach have moved to dismiss the

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Amended Complaint pursuant to Federal Rule of Civil Procedure

12(b)(6) on the grounds that it does not state all of the necessary

elements of claims of conspiracy to violate civil rights pursuant

to 42 U.S.C. §§ 1983 and 1985 and that it does not state a claim

for municipal liability against the Colonial Regional Police

Department upon which relief may be granted. When determining a

motion to dismiss pursuant to Rule 12(b)(6), the court may look

only to the facts alleged in the complaint and its attachments.

Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261

(3d Cir. 1994). The court must accept as true all well-pleaded

allegations in the complaint and view them in the light most

favorable to the Plaintiff. Angelastro v. Prudential-Bache

Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). However, the

court “need not credit a complaint’s ‘bald assertions’ or ‘legal

conclusions.’” California Pub. Employee Ret. Sys. v. The Chubb

Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). A Rule

12(b)(6) motion will be granted when a Plaintiff cannot prove any

set of facts, consistent with the complaint, which would entitle

him or her to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d

Cir. 1988).

Lt. Kostura, Buskirk, and the County of Northampton have filed

a Motion for Judgment on the Pleadings pursuant to Federal Rule of

Civil Procedure 12(c) seeking dismissal of the Amended Complaint as

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against the County of Northampton and as against Lt. Kostura and

Buskirk in their official capacities, on the grounds that the

Amended Complaint does not state a claim for municipal liability

against any of these Defendants upon which relief may be granted.

Motions for judgment on the pleadings brought pursuant to Federal

Rule of Civil Procedure 12(c) are reviewed under the same standard

as motions to dismiss pursuant to Rule 12(b)(6). Spruill v.

Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004) (noting that there is

“no material difference in the applicable legal standards” for Rule

12(b)(6) and Rule 12(c) motions).

The Court will address the movants’ arguments with respect to

Plaintiff’s claims brought pursuant to Section 1985 first, his

individual claims brought pursuant to Section 1983 second, and his

municipal liability claims brought pursuant to Section 1983 third.

III. SECTION 1985 CONSPIRACY CLAIMS

Det. Hammer, the Colonial Regional Police Department, and

Lobach have moved to dismiss the Amended Complaint on the grounds

that it does not state all of the necessary elements of a claim of

conspiracy to violate civil rights pursuant to 42 U.S.C. § 1985.

42 U.S.C. § 1985(3) provides a private right of action for an

individual who has been injured by a conspiracy of two or more

persons to deprive him, or a class of persons, of “the equal

protection of the laws, or of equal privileges and immunities under

the laws . . . .” 42 U.S.C. § 1985(3). In order to state a claim

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for conspiracy to violate civil rights pursuant to 42 U.S.C. §

1985(3), a complaint must allege the following elements: 

(1) a conspiracy; (2) for the purpose of

depriving any person or class of person of

equal protection of the laws or equal

privileges and immunities; (3) an act in

furtherance of the conspiracy; (4) whereby a

person is either injured in his person or

property or deprived of any right or privilege

of a citizen of the United States. To satisfy

the second element, Plaintiff must allege that

the Defendants were motivated by some racial,

or perhaps otherwise class-based, invidiously

discriminatory animus. 

Sutton v. West Chester Area School Dist., No.Civ.A. 03-3061, 2004

WL 999144, at *17-*18 (E.D. Pa. May 5, 2004) (citing Kelleher v.

City of Reading, No.Civ.A. 01-3386, 2001 WL 1132401, at *2 (E.D.

Pa. Sep. 21, 2001)). The Amended Complaint does not allege that

any of the Defendants were motivated by racial or other class-based

invidiously discriminatory animus, or that Plaintiff belongs to a

protected class. Accordingly, the Motions to Dismiss are granted

with respect to Plaintiff’s claims brought pursuant to 42 U.S.C. §

1985 in Counts I-V of the Amended Complaint and those claims are

dismissed.

IV. SECTION 1983 CONSPIRACY CLAIMS

Det. Hammer, the Colonial Regional Police Department, and

Lobach have also moved to dismiss the Amended Complaint on the

grounds that it does not state all of the necessary elements of

claims of conspiracy to violate civil rights pursuant to 42 U.S.C.

§ 1983. Section 1983 provides a private right of action for an

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individual injured by the “deprivation of any rights, privileges,

or immunities secured by the Constitution and laws” by a person

acting under color of state law. 42 U.S.C. § 1983. In order to

state a claim pursuant to Section 1983, a plaintiff “must allege

(1) that the conduct complained of was committed by a person acting

under color of state law; and (2) that the conduct deprived the

plaintiff of rights, privileges or immunities secured by the

Constitution or laws of the United States.” Chapman v. Acme

Markets, Inc., No.Civ.A. 97-6642, 1998 WL 196400, at *2 (E.D. Pa.

Apr. 23, 1998) (citing Lugar v. Edmondson Oil Co., Inc., 457 U.S.

922 (1982)).

In order to state a claim for conspiracy pursuant to Section

1983, the Amended Complaint must allege “(1) the existence of a

conspiracy involving state action; and (2) a [deprivation] of civil

rights in furtherance of the conspiracy by a party to the

conspiracy.” Marchese v. Umstead, 110 F. Supp. 2d 361, 371 (E.D.

Pa. 2000) (citations omitted). A conspiracy is “‘a combination of

two or more persons to do a criminal act, or to do a lawful act by

unlawful means or for an unlawful purpose.’” Id. (quoting

Panayotides v. Rabenold, 35 F. Supp. 2d 411, 419 (E.D. Pa. 1999),

aff'd, 210 F.3d 358 (3d Cir. 2000)). Consequently, a claim for

conspiracy pursuant to Section 1983 must specifically allege the

“combination, agreement, or understanding among all or between any

of the defendants to plot, plan, or conspire to carry out the

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alleged chain of events.” Id. (citations omitted). Moreover,

“‘[o]nly allegations of conspiracy which are particularized, such

as those addressing the period of the conspiracy, the object of the

conspiracy, and certain other actions of the alleged conspirators

taken to achieve that purpose will be deemed sufficient.’” Id.

(quoting Outterbridge v. Pennsylvania Dep’t of Corrections,

No.Civ.A. 00-1541, 2000 WL 795874, at *3 (E.D. Pa. June 7, 2000)).

The Amended Complaint alleges two distinct conspiracies. The

first conspiracy took place between February 27, 2004 and March 10,

2004 between Det. Hammer, the Colonial Regional Police Department

and Lobach. (Compl. Counts IV - V.) The second conspiracy took

place on March 10, 2004, involving Det. Hammer, the Colonial

Regional Police Department, Lt. Kostura, Buskirk and the County of

Northampton. (Compl. Counts I - III.)

A. The February 27 - March 10, 2004 Conspiracy

Counts IV and V of the Amended Complaint allege that, between

February 27 and March 10, 2004, Det. Hammer and Lobach conspired

and agreed to falsely accuse and charge Plaintiff with criminal

mischief, namely the use of explosives at the Holiday Inn. (Am.

Compl. 2d ¶ 16.) The purpose of the conspiracy was to deprive

Plaintiff of his “right to reputation, freedom from unreasonable

search and seizure, due process of law, and to obtain a felony

warrant to search and seize Michael Piskanin in hopes of

discovering incriminating evidence of counterfeiting against

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Michael Piskanin.” (Id.) In furtherance of this conspiracy, Det.

Hammer “submitted a criminal complaint and affidavit of probable

cause to District Magistrate Barbara Schlegel falsely accusing

Plaintiff Michael Piskanin of criminal mischief involving

explosives and [incendiaries], knowing that the charge and

allegations supporting it were false.” (Id. ¶ 17.) Also in

furtherance of the conspiracy, Lobach provided supporting,

exaggerated, and false testimony before District Magistrate

Schlegel. (Id. ¶ 18.) In addition, Det. Hammer, in furtherance of

this conspiracy, arrested Plaintiff under color of state law, and

subjected him to an illegal search and seizure of his person,

personal effects, car, and motel room on March 10, 2004. (Id. ¶

23.) 

1. Existence of the conspiracy

The Court finds that Counts IV and V of the Amended Complaint

allege an agreement between Det. Hammer and Lobach to deprive

Plaintiff of his Constitutional rights to freedom from unreasonable

search and seizure. The Amended Complaint contains particularized

allegations regarding the period of the conspiracy, between

February 27 and March 10, 2004; the object of the conspiracy, to

falsely arrest Plaintiff so that Det. Hammer could perform an

illegal search to discover evidence of counterfeiting by Plaintiff;

and actions of the alleged conspirators taken to achieve that

purpose, i.e., the false statements made by Det. Hammer in the

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criminal complaint and affidavit of probable cause which led to

Plaintiff’s arrest for criminal mischief, the false statements made

by Det. Hammer and Lobach to District Magistrate Schlegel, and Det.

Hammer’s arrest and subsequent search of Plaintiff, Plaintiff’s car

and Plaintiff’s motel room. The Court finds, therefore, that

Counts IV and V of the Amended Complaint allege the existence of a

conspiracy involving state action with sufficient specificity to

satisfy the first element of a claim for conspiracy pursuant to 42

U.S.C. § 1983. See Marchese, 110 F. Supp. 2d at 371.

In order to survive the Motions to Dismiss, the Amended

Complaint must also satisfy the second factor by alleging “a

[deprivation] of civil rights in furtherance of the conspiracy by

a party to the conspiracy.” See id. The Amended Complaint cannot

state a claim for conspiracy in violation of Section 1983 unless it

states an actual violation of Plaintiff’s constitutional rights.

See Morley v. Philadelphia Police Dept., No.Civ.A. 03-880, 2004 WL

1527829, at *7 (E.D. Pa. July 7, 2004) (“‘Section 1983 does not

create a cause of action per se for conspiracy to deprive one of a

constitutional right. Without an actual deprivation, there can be

no liability under Section 1983.’”) (quoting Garner v. Twp. of

Wrightstown, 819 F. Supp. 435, 445 n.7 (E.D. Pa. 1993)), aff’d 125

Fed. Appx. 457 (3d Cir. 2005).

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318 U.S.C. § 242 provides as follows:

Whoever, under color of any law, statute,

ordinance, regulation, or custom, willfully

subjects any person in any State, Territory,

Commonwealth, Possession, or District to the

deprivation of any rights, privileges, or

immunities secured or protected by the

Constitution or laws of the United States, or

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2. Deprivation of rights arising from state law and

federal statute 

Counts IV and V of the Amended Complaint allege that the

February 27 - March 10, 2004 conspiracy resulted in the violation

of Plaintiff’s civil rights under 18 Pa. Cons. Stat. Ann. § 5301,

42 Pa. Cons. Stat. Ann. § 8953, 18 U.S.C. § 242, and article I,

sections 1, 8, and 9 of the Pennsylvania Constitution. (Am. Compl.

¶¶ 20, 27.) Section 1983 does not provide a private right of

action for violation of state law. See Nellom v. Luber, No.Civ.A.

02-2190, 2004 WL 816922, at *5 (E.D. Pa. Mar. 8, 2004) (“‘An

alleged violation of state law . . . does not state a claim under

section 1983.’” (quoting Elkin v. Fauver, 969 F.2d 48, 52 (3d Cir.

1992))), appeal dismissed 119 Fed. Appx. 428 (3d Cir. 2004). The

Court finds, accordingly, that the Amended Complaint does not state

a claim under 42 U.S.C. § 1983 for violation of Plaintiff’s civil

rights pursuant to 18 Pa. Cons. Stat. Ann. § 5301, 42 Pa. Cons.

Stat. Ann. § 8953, and article I, sections 1, 8, and 9 of the

Pennsylvania Constitution. 

Section 1983 also does not provide a private right of action

for violation of 18 U.S.C. § 242.3 In order to bring suit to

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to different punishments, pains, or penalties,

on account of such person being an alien, or

by reason of his color, or race, than are

prescribed for the punishment of citizens,

shall be fined under this title or imprisoned

not more than one year, or both . . . .

18 U.S.C. § 242.

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enforce a right created by federal law pursuant to Section 1983,

Plaintiff must demonstrate that the federal statute creates an

individual right, i.e., that Congress intended to create a private

right of action to enforce that right. Gonzaga Univ. v. Doe, 536

U.S. 273, 283-85 (2002). 18 U.S.C. § 242 is the criminal

counterpart to Section 1983. See Cito v. Bridgewater Twp. Police

Dept., 892 F.2d 23, 26 n.3 (3d Cir. 1989). “[I]t is settled law

that private citizens do not enjoy a private right of action under

18 U.S.C. § 242.” O’Neil v. Beck, No.Civ.A. 1:04-cv-2825, 2005 WL

2030319, at *1 (M.D. Pa. Aug. 4, 2005) (citing Cito, 892 F.2d at 26

n.3). Consequently, Plaintiff cannot assert a claim pursuant to

Section 1983 for violation of 18 U.S.C. § 242. The Court finds,

therefore, that Counts IV and V of the Amended Complaint do not

allege deprivation of Plaintiff’s civil rights under state law or

18 U.S.C. § 242 “in furtherance of the conspiracy by a party to the

conspiracy” in satisfaction of the second element of a claim for

conspiracy pursuant to 42 U.S.C. § 1983. See Marchese, 110 F.

Supp. 2d at 371. The Court further finds, accordingly, that Counts

IV and V fail to state claims pursuant to Section 1983 for

conspiracy to violate Plaintiff’s civil rights under state law and

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18 U.S.C. § 242 upon which relief may be granted and Defendants’

Motions to Dismiss are granted with respect to these aspects of

Counts IV and V.

3. Deprivation of rights arising from the First,

Fifth, Eighth, and Fourteenth Amendments 

Count IV of the Amended Complaint also asserts that the

February 27 - March 10, 2004 conspiracy resulted in violations of

Plaintiff’s civil rights pursuant to the First, Fifth, Eighth and

Fourteenth Amendments to the United States Constitution. (Am.

Compl. ¶ 20.) Count V also asserts that this conspiracy resulted

in violations of Plaintiff’s civil rights pursuant to the Fourth

and Fifth Amendments to the United States Constitution. (Am.

Compl. ¶ 27.) 

The First Amendment protects freedom of religion, speech,

assembly, and the right “to petition the Government for a redress

of grievances.” U.S. Const. amend I. Count IV of the Amended

Complaint is solely concerned with Plaintiff’s arrest and the

searches incident to that arrest; it does not allege any facts with

respect to Plaintiff’s right to religious freedom, freedom of

speech, freedom of assembly or freedom to petition the Government.

Consequently, the Court finds that Count IV does not state a claim

pursuant to Section 1983 for violation of Plaintiff’s rights under

the First Amendment. 

Counts IV and V of the Amended Complaint do not specify which

aspects of the Fifth and Fourteenth Amendments provide the rights

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allegedly violated by Det. Hammer and Lobach, but imply that the

arrest and search of Plaintiff, his car and his motel room violated

his substantive due process rights. Claims of unreasonable search

and seizure are, however, governed by explicit constitutional text

in the Fourth Amendment and may not, therefore, be brought as

claims for violation of the right to substantive due process.

Albright v. Oliver, 510 U.S. 266, 272 (1994) (“Where a particular

Amendment ‘provides an explicit textual source of constitutional

protection’ against a particular sort of government behavior, ‘that

Amendment, not the more generalized notion of “substantive due

process,” must be the guide for analyzing these claims.’”) (quoting

Graham v. Connor, 490 U.S. 386, 395 (1989)) (footnote omitted); see

also County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)

(noting that a substantive due process analysis is inappropriate if

the plaintiff’s claim can be brought under the Fourth Amendment).

The Court finds, accordingly, that Counts IV and V fail to state

claims pursuant to Section 1983 for violation of Plaintiff’s

substantive due process rights under the Fifth and Fourteenth

Amendments. 

The Eighth Amendment states that “[e]xcessive bail shall not

be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII. Count IV of the

Amended Complaint is solely concerned with Plaintiff’s arrest and

the searches incident to that arrest, it does not allege any claims

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with respect to the amount of bail set by the District Magistrate

after Plaintiff’s arraignment, his ability to access bail bondsmen

to pay bail, or the conditions of his incarceration. The Court

finds, therefore, that Count IV does not state a claim pursuant to

Section 1983 for violation of Plaintiff’s rights under the Eighth

Amendment. 

For the reasons stated above, the Court finds that Counts IV

and V of the Amended Complaint do not allege deprivations of

Plaintiff’s civil rights under the First, Fifth, Eighth and

Fourteenth Amendments “in furtherance of the conspiracy by a party

to the conspiracy” in satisfaction of the second element of a claim

for conspiracy pursuant to 42 U.S.C. § 1983. See Marchese, 110 F.

Supp. 2d at 371. The Court further finds, accordingly, that Counts

IV and V fail to state claims pursuant to Section 1983 for

conspiracy to violate Plaintiff’s First, Fifth, Eighth and

Fourteenth Amendment rights upon which relief may be granted and

Defendants’ Motions to Dismiss are granted with respect to these

aspects of Counts IV and V.

4. Deprivation of rights arising under the Fourth

Amendment 

Counts IV and V also allege that the February 27 - March 10,

2004 conspiracy resulted in the false arrest of Plaintiff and

searches incident to that arrest which violated Plaintiff’s Fourth

Amendment right to be free of unreasonable searches and seizures.

The Fourth Amendment states that “[t]he right of the people to be

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secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no

Warrant shall issue, but upon probable cause . . . .” U.S. Const.

amend IV. Det. Hammer and the Colonial Regional Police Department

maintain that these claims must be dismissed as against Det. Hammer

because he is protected by qualified immunity. Lobach contends

that these claims must be dismissed as against him because he is

not a state actor.

a. Qualified Immunity

Det. Hammer argues that Counts IV and V do not state Section

1983 claims against him upon which relief may be granted because he

is entitled to qualified immunity. Qualified immunity shields

“government officials performing discretionary functions . . .

‘from liability from civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Kopec v. Tate,

361 F.3d 772, 776 (3d Cir.) (citing Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)), cert. denied 125 S. Ct. 453 (2004). The burden

is on the official to establish that he or she is entitled to

qualified immunity. Id. (citing Beers-Capitol v. Whetzel, 256 F.3d

120, 142 n.15 (3d Cir. 2001)). “[T]he standard of review for a

12(b)(6) motion favors denying qualified immunity.” Breslin v.

Brainard, No.Civ.A. 01-7269, 2002 WL 31513425, at *7 n.11 (E.D. Pa.

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Nov. 1, 2002) (citing Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d

Cir. 1992)). 

In Saucier v. Katz, 533 U.S. 194, 200-01 (2001), the Supreme

Court held that a two-step inquiry must be used when ruling on a

claim of qualified immunity. The Court first considers “whether

the facts alleged, taken in the light most favorable to the

plaintiff, show that the officer's conduct violated a

constitutional right.” Kopec, 361 F.3d at 776 (citing Saucier, 533

U.S. at 201). If the complaint does not state a constitutional

violation, the “‘qualified immunity inquiry is at an end; the

officer is entitled to immunity.’” Id. (quoting Bennett v.

Murphy, 274 F.3d 133, 136 (3d Cir. 2002)). If, however, the

Complaint, read in the light most favorable to the plaintiff, can

be read to state a constitutional violation, “the next sequential

step is to ask whether the right was clearly established.”

Saucier, 533 U.S. at 201. The Court looks at “whether it would be

clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Id. at 202. “If it would not have been

clear to a reasonable officer what the law required under the facts

alleged, then he is entitled to qualified immunity.” Kopec, 361

F.3d at 776. 

Counts IV and V allege that Defendant Hammer knowingly

obtained a warrant from District Magistrate Schlegel through the

submission of a complaint and affidavit of probable cause which

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contained falsehoods and used that warrant to subject Plaintiff to

unlawful arrest and to illegal search and seizure of his person,

personal effects, car, and motel room in violation of the Fourth

Amendment. Plaintiff’s arrest and the searches which took place

incident to that arrest are examined separately.

“The proper inquiry in a section 1983 claim based on false

arrest . . . is not whether the person arrested in fact committed

the offense but whether the arresting officers had probable cause

to believe the person arrested had committed the offense.” Dowling

v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)

(citations omitted). Det. Hammer contends that qualified immunity

applies in this case because Plaintiff was arrested pursuant to a

warrant. Where a plaintiff has been arrested pursuant to warrant,

he may only succeed in a Section 1983 false arrest claim by showing

the following: “(1) that the police officer ‘knowingly and

deliberately, or with a reckless disregard for the truth, made

false statements or omissions that create a falsehood in applying

for a warrant;’ and (2) that ‘such statements or omissions are

material, or necessary, to the finding of probable cause.’” Wilson

v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000) (quoting Sherwood v.

Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)). The Amended

Complaint alleges that, in furtherance of his agreement with Lobach

to falsely charge Plaintiff with criminal mischief, Det. Hammer

submitted a criminal complaint and affidavit of probable cause to

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the District Magistrate containing knowing falsehoods which falsely

accused Plaintiff of criminal mischief. (Am. Compl. ¶¶ 16-17.)

The Court finds that these allegations are sufficient to support

denial of Det. Hammer’s claim of qualified immunity. See Moyer v.

Boro. of North Wales, No.Civ.A. 00-1092, 2000 WL 1665132, at *4

(E.D. Pa. Nov. 7, 2000) (finding that allegations that police

officers agreed to falsely arrest Moyer and fabricate the charges

brought against him were sufficient to state a claim for false

arrest in violation of Moyer’s Fourth Amendment rights). 

Having determined that qualified immunity does not apply to

Plaintiff’s claim that he was falsely arrested in violation of the

Fourth Amendment, the Court examines whether qualified immunity

applies to the searches conducted incident to that arrest. “It is

well settled under the Fourth . . . Amendment[] that a search

conducted without a warrant issued upon probable cause is per se

unreasonable . . . .” Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973) (citations omitted). This right was clearly established

prior to March 10, 2004, when Det. Hammer conducted the search of

Plaintiff’s person, car, and motel room. As the Amended Complaint

alleges that the warrant issued for Plaintiff’s arrest was based

upon falsehoods and, consequently, was not issued upon probable

cause, the Court finds that the Amended Complaint alleges facts

which support a denial of qualified immunity in connection with

Plaintiff’s claims that his Fourth Amendment rights were violated

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 20 of 42
4Det. Hammer also argues that he is protected by qualified

immunity in connection with the warrantless search of Plaintiff’s

room at the Holiday Inn on February 24, 2004. However, neither

Count IV nor Count V state a claim for violation of Plaintiff’s

civil rights stemming from the February 24, 2004 search of his room

in the Holiday Inn. To the contrary, Count V specifically states

that Plaintiff’s claims arise from the searches on March 10, 2004.

21

by the illegal searches of his person, car and motel room incident

to his unlawful arrest.4

Det. Hammer also claims that he is protected by qualified

immunity in connection with the search of Plaintiff’s person

incident to his arrest whether or not the warrant for Plaintiff’s

arrest was supported by probable cause. Det. Hammer relies on the

decision of the United States Court of Appeals for the Third

Circuit in Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997), in

which the court noted that “the validity of the search for purposes

of a § 1983 suit must be examined independently of the lawfulness

of the arrests.” Id. at 823 (citations omitted). The Sharrar

court did not, however, address the constitutionality of a search

of the suspect’s person incident to a false arrest; rather, this

portion of its opinion addressed the constitutionality of a

warrantless protective sweep of a suspect’s home after his arrest

but before the arrival of a search warrant. Id. at 822-25. The

Court finds, therefore, that Sharrar does not provide the necessary

support for Det. Hammer’s argument and that the Amended Complaint

alleges facts which support a denial of qualified immunity in

connection with Plaintiff’s claims that his Fourth Amendment rights

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 21 of 42
22

were violated by the illegal search of his person incident to his

false arrest. 

b. Action under color of state law

Lobach argues that the Amended Complaint fails to state a

Section 1983 claim against him upon which relief may be granted

because he is not a state actor. Private parties may be liable

under Section 1983 only when they have acted under color of state

law. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)

(citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978)).

“Determining whether there has been state action requires an

inquiry into whether ‘there is a sufficiently close nexus between

the State and the challenged action so that the challenged action

may be fairly treated as that of the [s]tate itself.’” McCracken

v. Ford Motor Co., No.Civ.A. 01-4466, 2001 WL 1526051, at *4 (E. D.

Pa. Nov. 27, 2001) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004

(1982)).

The Court uses the following test to determine whether a

private party has acted under color of state law:

The first question is whether the claimed

deprivation has resulted from the exercise of

a right or privilege having its source in

state authority. The second question is

whether, under the facts of this case,

respondents, who are private parties, may be

appropriately characterized as “state actors.”

Lugar v. Edmondson Oil Co., 457 U.S. 922, 939

(1982). The Court of Appeals for the Third

Circuit has delineated three Lugar sub-tests

to determine whether there has been state

action: (1) whether the private entity has

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 22 of 42
23

exercised powers that are traditionally in the

exclusive prerogative of the state; (2)

whether the private party has acted with the

help of or in concert with state officials,

and (3) whether the [s]tate has so far

insinuated itself into a position of

interdependence with the private party that it

must be recognized as a joint participant in

the challenged activity. Mark v. Borough of

Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995).

Id. at *4 n.8. The only test which applies in this case is the

second, whether the private party acted as a joint actor with, or

in concert with, the state. Id.; see also Piazza v. Major League

Baseball, 831 F. Supp. 420, 427 (E.D. Pa. 1993). 

The Amended Complaint alleges that, on February 27, 2004, Det.

Hammer and Lobach conspired and agreed to falsely accuse and charge

Plaintiff with criminal mischief, namely the use of explosives at

the Holiday Inn. (Am. Compl. 2d ¶ 16.) The Amended Complaint

further alleges that both Det. Hammer and Lobach took steps in

furtherance of the conspiracy. (Id. ¶¶ 16-23.) The Court finds

that these allegations are sufficient to plead that Lobach acted in

conspiracy with Det. Hammer and, therefore, acted under color of

state law.

Having determined that qualified immunity does not apply to

Det. Hammer’s allegedly unlawful arrest of Plaintiff and the

searches performed incident to that arrest, and having determined

that the Amended Complaint does plead that Lobach acted under color

of state law, the Court finds that the Amended Complaint alleges

that Plaintiff was subjected to false arrest and illegal searches

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 23 of 42
24

in violation of his Fourth Amendment rights in “furtherance of the

conspiracy by a party to the conspiracy.” See Marchese, 110 F.

Supp. 2d at 371. The Amended Complaint thus satisfies both prongs

of a Section 1983 claim of conspiracy to violate Plaintiff’s civil

rights against Det. Hammer and Lobach with respect to his claims

that he was falsely arrested and subjected to unreasonable searches

and seizures in violation of the Fourth Amendment. The Motions to

Dismiss are, therefore, denied with respect to Plaintiff’s Section

1983 conspiracy claims against Det. Hammer and Lobach in Counts IV

and V of the Amended Complaint arising from the alleged violation

of Plaintiff’s Fourth Amendment rights. The Motions to Dismiss

are, however, granted with respect to Plaintiff’s remaining claims

for relief in Counts IV and V of the Amended Complaint against

Defendants Hammer and Lobach.

B. The March 10, 2004 Conspiracy

Counts I - III of the Amended Complaint allege a conspiracy to

deprive Plaintiff of his civil rights between Det. Hammer, Lt.

Kostura, Buskirk, the Colonial Regional Police Department and the

County of Northampton arising from Plaintiff’s pre-trial placement

in the Northampton County Prison on March 10, 2004, his inability

to contact a bail bondsman or counsel after his placement there,

and his assignment to the Bubble. Count I states that Lt. Kostura

and Det. Hammer met and conspired to obstruct Plaintiff and block

him from exercising his rights to bail, access to the courts,

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 24 of 42
25

assistance of counsel, freedom of religion, and the writ of habeas

corpus. (Am. Compl. ¶ 12.) Count I further alleges that isolating

pre-trial detainees by preventing them from obtaining bail and by

placing them in the Bubble is part of a “good ol [sic] boy system

between prison guards, supervisors and police” including Buskirk.

(Id. ¶ 13.) Count II alleges that, in furtherance of this

conspiracy, Lt. Kostura labeled Plaintiff as a suicide risk and

assigned him to the Bubble where his petition for writ of habeas

corpus was seized from him and where he was unable to access

bailbondsmen, his family, attorneys, and the courts. (Id. 2d ¶

11.) As a result of Lt. Kostura’s actions, Plaintiff was subjected

to harsher, more hostile housing and treatment amounting to cruel

and unusual punishment. (Id. 2d ¶ 13.) 

1. Existence of the Conspiracy

The Court finds that Counts I - III of the Amended Complaint

allege an agreement between Det. Hammer and Lt. Kostura to deprive

Plaintiff of his Constitutional rights to reasonable bail, access

to the courts, assistance of counsel, and due process. The Amended

Complaint also contains particularized allegations of the time

period of the conspiracy, March 10, 2004; the object of the

conspiracy, to prevent Plaintiff from accessing counsel, accessing

the courts, obtaining due process and obtaining bail; and actions

taken in furtherance of the conspiracy, specifically placing

Plaintiff in the Bubble and seizing his petition for writ of habeas

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 25 of 42
26

corpus. The Court finds, consequently, that Counts I - III of the

Amended Complaint allege the existence of a conspiracy involving

state action with sufficient specificity to satisfy the first

element of a claim for conspiracy pursuant to 42 U.S.C. § 1983.

See Marchese, 110 F. Supp. 2d at 371. 

2. Deprivation of rights arising from state law and

federal statute 

Counts I - III of the Amended Complaint allege that the March

10, 2004 conspiracy between Det. Hammer and Lt. Kostura resulted in

a violation of Plaintiff’s civil rights secured by 18 U.S.C. § 242

(Count III), 18 Pa. Cons. Stat. Ann. § 4301 (Count III), and

article I, sections 8, 9, 11, 13 and 14 of the Pennsylvania

Constitution (Counts I - III) (Am. Compl. ¶¶ 12, 20, 27.) As

discussed in section IV.A.2. above, Plaintiff cannot bring a claim

pursuant to Section 1983 for violation of his rights pursuant to

the Pennsylvania Constitution, Pennsylvania statutes, and 18 U.S.C.

§ 242. The Court finds, therefore, that Counts I - III of the

Amended Complaint do not allege deprivations of Plaintiff’s civil

rights under state law or 18 U.S.C. § 242 “in furtherance of the

conspiracy by a party to the conspiracy” in satisfaction of the

second element of a claim for conspiracy pursuant to 42 U.S.C. §

1983. See Marchese, 110 F. Supp. 2d at 371. The Court further

finds, accordingly, that Counts I - III of the Amended Complaint

fail to state claims pursuant to Section 1983 for conspiracy to

violate Plaintiff’s civil rights arising under 18 U.S.C. § 242, 18

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 26 of 42
27

Pa. Cons. Stat. Ann. § 4301, and article I, sections 8, 9, 11, 13

and 14 of the Pennsylvania Constitution upon which relief may be

granted and Defendants’ Motions to Dismiss are granted with respect

to these aspects of Counts I - III.

3. Deprivation of rights arising from the Fourth

Amendment 

Counts I - III of the Amended Complaint also allege that the

March 10, 2004 conspiracy between Det. Hammer and Lt. Kostura

resulted in a violation of Plaintiff’s rights under the Fourth

Amendment. However, none of these Counts, which pertain solely to

Plaintiff’s incarceration at Northampton County Prison and his

placement in the Bubble, contain allegations relating to

Plaintiff’s arrest or searches of Plaintiff or his property. The

Court finds, therefore, that Count IV does not state a claim

pursuant to Section 1983 for violation of Plaintiff’s rights under

the Fourth Amendment. Consequently, Counts I - III of the Amended

Complaint do not allege deprivations of Plaintiff’s Fourth

Amendment rights “in furtherance of the conspiracy by a party to

the conspiracy” in satisfaction of the second element of a claim

for conspiracy pursuant to 42 U.S.C. § 1983. See Marchese, 110 F.

Supp. 2d at 371. The Court finds, accordingly, that Counts I - III

of the Amended Complaint fail to state claims pursuant to Section

1983 for conspiracy to violate Plaintiff’s Fourth Amendment rights

upon which relief may be granted and Defendants’ Motions to Dismiss

are granted with respect to these aspects of Counts I - III. 

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 27 of 42
28

4. Deprivation of rights arising from the First,

Fifth, and Fourteenth Amendments 

Counts I - III of the Amended Complaint also allege that the

March 10, 2004 conspiracy between Det. Hammer and Lt. Kostura

resulted in the denial of Plaintiff’s right to access the courts.

(Am. Compl. ¶ 12, 2d ¶ 12.) The Supreme Court has recognized that

the constitutional right to access the courts “has been found in

the Article IV Privileges and Immunities Clause, the First

Amendment Petition Clause, the Fifth Amendment Due Process Clause,

and the Fourteenth Amendment Equal Protection and Due Process

Clauses.” Gibson v. Supt. N.J. Dept. of Law, 411 F.3d 427, 441 (3d

Cir. 2005) (citing Christopher v. Harbury, 536 U.S. 403, 415 n.12

(2002)). A plaintiff may bring a suit for denial of the right to

access the courts for claims arising from the “‘loss or inadequate

settlement of a meritorious case, . . . the loss of an opportunity

to sue, . . . or the loss of an opportunity to seek some particular

order of relief.’” Id. (quoting Christopher, 536 U.S. at 414). In

order to state a backward looking denial of access to the courts

claim, i.e., a claim which looks backward and “alleges that some

past wrongful conduct influenced a litigation opportunity such that

the litigation ‘ended poorly, or could not have commenced, or could

have produced a remedy subsequently unobtainable’” the complaint

must allege the following elements: (1) the underlying cause of

action and whether that cause of action was anticipated or lost;

(2) the official acts which frustrated that cause of action; and

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 28 of 42
29

(3) “a remedy that may be awarded as recompense but [is] not

otherwise available in some suit that may yet be brought.” Id. at

441-42 (quoting Christopher, 536 U.S. at 414). 

The only factual allegations in the Amended Complaint

pertaining to actions which prevented Plaintiff from filing or

litigating any particular cause of action are those describing Lt.

Kostura’s seizure of Plaintiff’s petition for writ of habeas

corpus. (Am. Compl. 2d ¶ 7.) The Amended Complaint does not,

however, allege the basis of that petition and whether Plaintiff

was able to assert the claims which formed the basis for that

petition in any other action. Consequently, the Court finds that

Counts I- III of the Amended Complaint do not state a Section 1983

claim of denial of access to the courts in violation of Plaintiff’s

rights pursuant to the First, Fifth, and Fourteenth Amendments.

Consequently, Counts I - III of the Amended Complaint do not allege

deprivations of Plaintiff’s Constitutional right to access the

courts “in furtherance of the conspiracy by a party to the

conspiracy” in satisfaction of the second element of a claim for

conspiracy pursuant to 42 U.S.C. § 1983. See Marchese, 110 F.

Supp. 2d at 371. The Court finds, accordingly, that Counts I - III

of the Amended Complaint fail to state claims pursuant to Section

1983 for conspiracy to violate Plaintiff’s right to access the

courts under the First, Fifth and Fourteenth Amendments upon which

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 29 of 42
5Count I also states that Plaintiff’s placement in the Bubble

violated his First Amendment right to freedom of religion. Count

I does not, however, allege that being placed in the Bubble

violated any of Plaintiff’s religious beliefs or that his placement

prevented him from participating in any particular religious

practice. Consequently, the Court finds that Count I does not

state a claim pursuant to Section 1983 for violation of Plaintiff’s

First Amendment right to freedom of religion upon which relief may

be granted.

30

relief may be granted and Defendants’ Motions to Dismiss are

granted with respect to these aspects of Counts I - III.5

5. Deprivation of rights arising from the Eighth and

Fourteenth Amendments 

Counts I - III of the Amended Complaint allege that Lt.

Kostura’s actions in furtherance of the March 10, 2004 conspiracy

violated Plaintiff’s rights under the Eighth Amendment by denying

his right to bail and subjecting him to cruel and unusual

punishment. (Am. Compl. ¶ 12, 2d ¶ 7, 2d ¶ 12.) 

The Eighth Amendment right to bail is applicable to the states

pursuant to the Fourteenth Amendment. Roper v. Simmons, ___ U.S.

___, 125 S. Ct. 1183, 1190 (2005). Consequently, a defendant in a

criminal case has a right to reasonable bail pursuant to the Eighth

Amendment that is “cognizable under section 1983.” Harrison v.

Abraham, Civ.A.No. 96-4262, 1997 WL 256970, at *20 (E.D. Pa. May

16, 1997) (citing Harvin v. Post, No. 95-7888, 1997 WL 116985, at

*4 (E.D. Pa. March 7, 1997)), aff’d 151 F.3d 1025 (3d Cir. 1998).

Plaintiff does not claim that the amount of bail set by the

District Magistrate ($10,000) was excessive, or that Lt. Kostura

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 30 of 42
6A claim that a criminal defendant has been denied the

opportunity to obtain bail may also raise a claim under the

substantive due process clause of the Fourteenth Amendment. See

United States v. Perry, 788 F.2d 100, 112 (3d Cir. 1986) (“While

the [E]ighth [A]mendment does not grant an absolute right to bail,

there is a substantive liberty interest in freedom from

confinement.”). 

31

had any part in the decision setting the amount of bail Plaintiff

was required to post. However, the Amended Complaint does allege

that Lt. Kostura acted to prevent Plaintiff from obtaining bail

after the amount was set, resulting in a practical denial of his

right to bail pursuant to the Eighth and Fourteenth Amendments.

See United States v. Motlow, 10 F.2d 657, 659 (7th Cir. 1926) (“The

Eighth Amendment provides that ‘excessive bail shall not be

required.’ This implies, and therefore safeguards, the right to

give bail at least before trial. The purpose is to prevent the

practical denial of bail by fixing the amount so unreasonably high

that it cannot be given.”); see also Stack v. Boyle, 342 U.S. 1, 7-

8 (U.S. 1951) (noting that the purpose of the right to bail under

American law is to enable criminal defendants to “stay out of jail

until a trial has found them guilty.”); Hunt v. Roth, 648 F.2d

1148, 1157 (8th Cir. 1981) (“If the [E]ighth [A]mendment has any

meaning beyond sheer rhetoric, the constitutional prohibition

against excessive bail necessarily implies that unreasonable denial

of bail is likewise prohibited. Logic defies any other resolution

of the question.”), vacated as moot sub nom. Murphy v. Hunt, 455

U.S. 479 (1982) (per curiam).6 The Court finds, therefore, that

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 31 of 42
32

Counts I - III state claims pursuant to Section 1983 for violation

of Plaintiff’s right to reasonable bail under the Eighth and

Fourteen Amendments. 

Count III of the Amended Complaint also alleges that

Plaintiff’s placement in the Bubble subjected him to “cruel and

unusual punishment without due process of law.” (Am. Compl. 2d ¶

13.) Although Count III appears to assert a claim pursuant to the

Eighth Amendment’s prohibition on cruel and unusual punishment,

“[p]retrial detainees are protected by the due process clause of

the fifth and fourteenth Amendments, not the cruel and unusual

punishment clause of the eighth amendment.” Williams v.

Mussomelli, 722 F.2d 1130, 1133 (3d Cir. 1983) (citing Bell v.

Wolfish, 441 U.S. 520, 535 n.16 (1979)). As Plaintiff was a state

pre-trial detainee, his claim is analyzed under the due process

clause of the Fourteenth Amendment. Hubbard v. Taylor, 399 F.3d

150, 158 n.13 (3d Cir. 2005). In determining the constitutionality

of the conditions of confinement of a pre-trial detainee, the Court

examines “whether those conditions amount to punishment prior to an

adjudication of guilt in accordance with law. For under the Due

Process Clause, a detainee may not be punished prior to an

adjudication of guilt in accordance with due process of law.”

Bell, 441 U.S. at 535. A two-step inquiry is used to determine

whether the pre-trial detainee’s conditions of confinement amount

to punishment: the court determines “first, whether any legitimate

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 32 of 42
33

purposes are served by these conditions and second, whether these

conditions are rationally related to these purposes.” Hubbard, 399

F.3d at 159 (quoting Union County Jail Inmates v. DiBuono, 713 F.2d

984, 992 (3d Cir. 1983)). 

Count III of the Amended Complaint alleges that Plaintiff was

placed in the Bubble in order to prevent him from accessing bail,

his family, attorneys, and the courts to keep him from obtaining

release from pre-trial detention. Read in the light most favorable

to Plaintiff, Count III alleges that there was no legitimate

purpose for Plaintiff’s placement in the Bubble. Accordingly, the

Court finds that Count III states a Section 1983 claim for

violation of Plaintiff’s Fourteenth Amendment due process rights

arising from the conditions of his confinement in the Bubble.

Having found that Counts I - III state Section 1983 claims for

violation of Plaintiff’s Eighth and Fourteenth Amendment rights in

connection with the practical denial of his right to reasonable

bail, and that Count III states a Section 1983 claim for violation

of Plaintiff’s Fourteenth Amendment due process rights in

connection with the conditions of Plaintiff’s confinement in the

Bubble, the Court finds that the Amended Complaint alleges that

Plaintiff was subjected to violations of his Eighth and Fourteen

Amendment rights in “furtherance of the conspiracy by a party to

the conspiracy.” See Marchese, 110 F. Supp. 2d at 371. Counts I -

III of the Amended Complaint thus satisfy both prongs of Section

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 33 of 42
34

1983 claims of conspiracy to violate Plaintiff’s Eighth and

Fourteenth Amendment rights against Det. Hammer and Lt. Kostura.

The Motions to Dismiss are, therefore, denied with respect to

Plaintiff’s Section 1983 conspiracy claims against Det. Hammer and

Lt. Kostura in Counts I - III of the Amended Complaint arising from

the alleged violations of Plaintiff’s Eighth and Fourteenth

Amendment rights. 

6. Deprivation of rights arising from the Sixth

Amendment 

Counts I and III also allege that Plaintiff’s Sixth Amendment

right to counsel was violated by his placement in the Bubble

because that placement prevented him from accessing counsel. (Am.

Compl. ¶ 12, 2d ¶ 12.) “[T]he right to counsel attaches ‘at or

after the initiation of adversary judicial criminal proceedings --

whether by way of formal charge, preliminary hearing, indictment,

information, or arraignment.’” United States v. Muzychka, 725 F.2d

1061, 1068 (3d Cir. 1984) (quoting Moore v. Illinois, 434 U.S. 220,

226 (1977)). The Amended Complaint states that Plaintiff was

arraigned prior to his placement at Northampton County Prison.

(Am. Compl. ¶ 10.) His Sixth Amendment right to counsel had,

accordingly, attached. Counts I and III allege that Plaintiff was

placed in the Bubble in order to obstruct his access to counsel.

(Id. ¶ 12, 2d ¶¶ 11-12.) The Court finds, therefore, that Counts

I and III state Section 1983 claims for violation of Plaintiff’s

Sixth Amendment right to counsel arising from his placement in the

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 34 of 42
35

Bubble. Having found that Counts I and III state Section 1983

claims for violation of Plaintiff’s Sixth Amendment right to

counsel, the Court finds that these Counts allege that Plaintiff

was subjected to violation of his Sixth Amendment rights in

“furtherance of the conspiracy by a party to the conspiracy.” See

Marchese, 110 F. Supp. 2d at 371. Counts I and III of the Amended

Complaint thus satisfy both prongs of Section 1983 claims of

conspiracy to violate Plaintiff’s Sixth Amendment rights against

Det. Hammer and Lt. Kostura. The Motions to Dismiss are,

therefore, denied with respect to Plaintiff’s Section 1983

conspiracy claims against Det. Hammer and Lt. Kostura in Counts I

and III of the Amended Complaint arising from the alleged

violations of Plaintiff’s Sixth Amendment rights.

V. MUNICIPAL LIABILITY

Counts II, III, IV and V assert Section 1983 conspiracy claims

against the Colonial Regional Police Department arising from

Plaintiff’s arrest, the searches incident to that arrest, and

Plaintiff’s incarceration in the Northampton County Prison. The

Court understands these claims to be claims against the

municipality of which the Colonial Regional Police Department is an

agency. See Pahle v. Colebrookdale Twp., 227 F. Supp. 2d 361, 367

(E.D. Pa. 2002) (“In § 1983 actions, police departments cannot be

sued in conjunction with municipalities, because the police

departments are merely administrative agencies of the

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 35 of 42
36

municipalities –- not separate judicial entities.”) (citations

omitted). Counts II and III also assert Section 1983 conspiracy

claims against the County of Northampton arising out of Plaintiff’s

incarceration in the Northampton County Prison. 

Defendants argue that the Colonial Regional Police Department

and the County of Northampton must be dismissed as Defendants in

this action because the Amended Complaint does not allege municipal

liability in accordance with Monell v. Department of Social

Services, New York City, 436 U.S. 658 (1978). A municipality may

only be held liable under Section 1983 when the municipality itself

causes a constitutional violation pursuant to an official policy or

governmental custom. Monell, 436 U.S. 658 at 690-91. In order to

state a Section 1983 claim against a municipality in accordance

with Monell, the Amended Complaint must allege: “(1) existence of

a municipal custom or policy; and (2) violation of Plaintiff’s

constitutional rights by an officer acting pursuant to the

municipal policy.” Moyer, 2001 WL 73428, at * 3 (citing Beck v.

City of Pittsburgh, 89 F.3d 966, 972 (3d Cir. 1996)). 

The only specific allegation of wrongdoing on the part of the

Colonial Regional Police Department made in the Amended Complaint

is that it “failed to restrain Defendant Hammer” in connection with

the false statements Hammer made in the criminal complaint and the

affidavit of probable cause which were used to obtain the warrant

for Plaintiff’s arrest. (Am. Compl. ¶ 19.) The only specific

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 36 of 42
37

allegation of wrongdoing on the part of Northampton County made in

the Amended Complaint is that it failed to restrain Lt. Kostura

from putting Plaintiff in the Bubble. (Am. Compl. 2d ¶ 12.) The

Amended Complaint also alleges, in Count I, that Lt. Kostura acted

in accordance with “a good ol [sic] boy system.” (Am. Compl. ¶

13.) Plaintiff argues that the latter allegation sufficiently

pleads that Lt. Kostura acted in accordance with municipal custom

or policy.

A municipal policy is established when “a ‘decisionmaker

possess[ing] final authority to establish municipal policy with

respect to the action’ issues an official proclamation, policy, or

edict.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d

Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469,

481 (1986)). A course of conduct becomes a municipal custom when

“though not authorized by law, ‘such practices of state officials

[are] so permanent and well settled’ as to virtually constitute

law.” Id. (quoting Monell, 436 U.S. at 690). The Amended

Complaint does not allege that the “good ol boy system” was formed

according to established municipal policy or municipal custom of

the County of Northampton or the municipality of which the Colonial

Regional Police Department is an agency. Consequently, the Court

finds that the Amended Complaint fails to allege that either the

Colonial Regional Police Department or the County of Northampton

conspired to violate Plaintiff’s civil rights pursuant to an

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 37 of 42
38

official policy or municipal custom. The Motion to Dismiss filed

by the Colonial Regional Police Department and Defendant Hammer is,

therefore, granted with respect to Plaintiff’s claims against the

Colonial Regional Police Department and the Colonial Regional

Police Department is dismissed as a Defendant in this action. The

Motion for Judgment on the Pleadings filed by the County of

Northampton, Buskirk and Lt. Kostura is, accordingly, granted with

respect to Plaintiff’s claims against the County of Northampton and

the County of Northampton is dismissed as a Defendant in this

action. 

The County of Northampton, Buskirk and Lt. Kostura have also

moved for judgment on the pleadings with respect to Plaintiff’s

claims asserted against Defendants Buskirk and Lt. Kostura in their

official capacities. Where a suit is brought against a public

officer in his official capacity, the suit is treated as if the

suit were brought against the governmental entity of which he is an

officer. Brandon v. Holt, 469 U.S. 464, 471-72 (1985). Since the

Court has found that the Amended Complaint does not state any

claims for municipal liability against the County of Northampton

upon which relief may be granted, the Motion for Judgment on the

Pleadings is also granted with respect to Plaintiff’s claims

against Buskirk and Lt. Kostura in their official capacities and

those claims are dismissed. 

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 38 of 42
7Plaintiff may proceed on the following claims asserted in the

Amended Complaint:

Count I - a Section 1983 conspiracy claim against Lt. Kostura,

Buskirk and Det. Hammer for violation of Plaintiff’s Eighth and

Fourteenth Amendment rights to reasonable bail and his Sixth

Amendment right to counsel.

Count II - a Section 1983 conspiracy claim against Lt.

Kostura, Buskirk and Det. Hammer for violation of Plaintiff’s

Eighth and Fourteenth Amendment rights to reasonable bail.

Count III - a Section 1983 conspiracy claim against Lt.

Kostura, Buskirk and Det. Hammer for violation of Plaintiff’s Sixth

Amendment right to counsel, his Eighth and Fourteenth Amendment

rights to reasonable bail, and his Fourteenth Amendment due process

rights relating to the conditions of his confinement in the Bubble.

Counts IV and V - Section 1983 conspiracy claims against Det.

Hammer and Lobach for violation of Plaintiff’s Fourth Amendment

right against unreasonable searches and seizures.

39

VI. CONCLUSION

For the foregoing reasons, the Motion to Dismiss filed by Det.

Hammer and the Colonial Regional Police Department is denied with

respect to Plaintiff’s Section 1983 claims for conspiracy to

violate his Eighth and Fourteenth Amendment right to reasonable

bail, his Fourteenth Amendment due process rights (relating to his

conditions of confinement in the bubble), and his Sixth Amendment

right to Counsel in Counts I - III of the Amended Complaint. Both

the Motion to Dismiss filed by Det. Hammer and the Colonial

Regional Police Department and the Motion to Dismiss filed by

Lobach are denied with respect to Plaintiff’s Section 1983 claims

for conspiracy to violate his Fourth Amendment right against

unreasonable search and seizure in Counts IV and V of the Amended

Complaint.7 Both Motions to Dismiss are granted in all other

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 39 of 42
40

respects and the Colonial Regional Police Department is dismissed

as a Defendant in this action.

The Motion for Judgment on the Pleadings filed by the County

of Northampton, Buskirk, and Lt. Kostura is granted and Plaintiff’s

claims against the County of Northampton and against Buskirk and

Lt. Kostura in their official capacities are dismissed. The County

of Northampton is dismissed as a Defendant in this litigation. 

Plaintiff asked the Court, during the Preliminary Pre-trial

Conference held in this matter, for leave to file a second amended

complaint to cure the deficiencies in his Amended Complaint.

Consequently, the Motions to Dismiss have been granted without

prejudice and Plaintiff may file a second amended complaint, curing

the deficiencies in the Amended Complaint which they address,

within 20 days. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir.

2004) (“[I]f a complaint is vulnerable to 12(b)(6) dismissal, a

District Court must permit a curative amendment, unless an

amendment would be inequitable or futile.”) (citing Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). An

appropriate order follows.

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 40 of 42
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL J. PISKANIN : CIVIL ACTION

:

v. :

:

DET. GARY HAMMER, ET AL. : NO. 04-1321

O R D E R

AND NOW, this 14th day of November, 2005, upon consideration

of the Motion to Dismiss filed by Defendants Gary Hammer and the

Colonial Regional Police Department (Docket No. 34), the Motion to

Dismiss filed by Richard Lobach (Docket Nos. 35, 36), the Motion

for Judgment on the Pleadings filed by Todd L. Buskirk, County of

Northampton and James Kostura (Docket No. 49), Plaintiff’s

responses thereto, and Plaintiff’s Motions for Extension of Time to

File an Amended Complaint (Docket No. 51) and for Leave to File an

Amended Complaint and Add Defendants (Docket No. 62), IT IS HEREBY

ORDERED as follows:

1. The Motions to Dismiss (Docket Nos. 34, 35 and 36) are

GRANTED in part and DENIED in part. The Motions to

Dismiss are DENIED with respect to Plaintiff’s claims

asserted in Counts I, II and III pursuant to 42 U.S.C. §

1983 for conspiracy to violate his Sixth Amendment right

to counsel, his Eighth and Fourteenth Amendment rights to

reasonable bail, and his Fourteenth Amendment due process

rights (relating to his conditions of confinement in the

Bubble). The Motions to Dismiss are also DENIED with

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 41 of 42
2

respect to Plaintiff’s claims asserted in Counts IV and

V pursuant to 42 U.S.C. § 1983 for conspiracy to violate

his Fourth Amendment rights to be free of unreasonable

searches and seizures. The Motions to Dismiss are

GRANTED, without prejudice, in all other respects.

2. The Motion for Judgment on the Pleadings (Docket No. 49)

is GRANTED. 

3. The Colonial Regional Police Department and the County of

Northampton are DISMISSED as defendants in this action

and the claims made against Todd L. Buskirk and Lt.

Kostura in their official capacities are DISMISSED.

Judgment is entered in favor of the County of Northampton

and against Plaintiff.

4. Plaintiff may file a second amended complaint, curing the

deficiencies in the Amended Complaint, within 20 days of

the date of this Order.

5. Plaintiff’s Motions for Extension of Time to File an

Amended Complaint (Docket No. 51) and for Leave to File

an Amended Complaint and Add Defendants (Docket No. 62)

are DISMISSED as moot.

BY THE COURT:

_______________________

John R. Padova, J.

Case 2:04-cv-01321-JP Document 63 Filed 11/15/05 Page 42 of 42