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

ORDER-MEMORANDUM

Padova, J. 

AND NOW, this 9th day of March, 2007, upon consideration of Defendant Gary Hammer’s

Motion for Summary Judgment (Docket No. 124) and Plaintiff’s response thereto, IT IS HEREBY

ORDERED that said Motion is GRANTED. JUDGMENT is entered in favor of Defendant Gary

Hammer and against Plaintiff. IT IS FURTHER ORDERED that the Clerk of Court shall close

this case for statistical purposes.

Plaintiff, Michael J. Piskanin, has brought this action pursuant to 42 U.S.C. §§ 1983 and

1985 against Defendants Detective Gary Hammer, Lieutenant Jim Kostura, Todd L. Buskirk, the

Colonial Regional Police Department, Richard Lobach and the County of Northampton alleging

violations of his civil rights arising from the search of his residence on February 10, 2004; his March

10, 2004 arrest; the search of his person, car and motel room in connection with his arrest; and his

subsequent pre-trial detention in the Northampton County Prison. The searches and arrest led to

Plaintiff’s conviction on charges related to identity theft. Plaintiff’s claims against the Colonial

Regional Police Department and the County of Northampton were dismissed by our Order dated

November 14, 2005. Plaintiff voluntarily dismissed his claims against Richard Lobach on February

7, 2007. 

Motions for Summary Judgment were filed in this action by Detective Hammer and by

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Lieutenant Kostura and Mr. Buskirk. On March 28, 2007, we granted Detective Hammer’s Motion

for Summary Judgment in part, dismissing Plaintiff’s claims for violation of his Fourth Amendment

rights in connection with the February 10, 2004 search of his residence, his March 10, 2004 arrest,

and the searches of his person, car and residence conducted in connection with his arrest. Those

claims, asserted in Counts II, III, IV, and IX of the Second Amended Complaint, allege that

Plaintiff’s arrest and the searches conducted by Detective Hammer were unlawful, thereby implying

the invalidity of his conviction and sentence on the charges resulting from the searches and arrest.

Plaintiff’s conviction on those charges is presently on appeal and has not been invalidated. Counts

II, III, and IX, and the claim for violation of Plaintiff’s Fourth Amendment rights in Count IV, were,

accordingly, dismissed pursuant to Heck v. Humphrey, 512 U.S. 477, 486 (1994) (“[I]n order to

recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused

by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must

prove that the conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.”). Plaintiff

moved for reconsideration of our March 28, 2007 Order. Plaintiff’s Motion for Reconsideration was

denied on May 7, 2007.

In addition to dismissing Plaintiff’s Fourth Amendment claims, the March 28, 2007 Order

granted Plaintiff additional time, until April 11, 2007, to respond to Defendant Hammer’s Motion

for Summary Judgment as to the remaining Counts of the Second Amended Complaint. At this

time, there are seven Counts remaining against Defendant Hammer, all of which pertain to Plaintiff’s

pretrial detention in the Northampton County Prison. Count I alleges that Defendant Hammer

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conspired with Defendants Kostura and Buskirk to violate Plaintiff’s Sixth Amendment right to

counsel, his Eighth Amendment right to reasonable bail, and his First, Fifth and Fourteenth

Amendment rights to access the courts. Count IV alleges that Defendant Hammer conspired with

Defendants Kostura and Buskirk to violate Plaintiff’s Eighth Amendment right to reasonable bail,

his Fourteenth Amendment right to due process, and his First, Fifth and Fourteenth Amendment

rights to access the courts. Counts V and VI allege that Defendant Hammer conspired with

Defendants Kostura and Buskirk to violate Plaintiff’s First, Fifth, Eighth and Fourteenth Amendment

rights by taking a religious medal from him, denying him access to reasonable bail, subjecting him

to cruel and unusual conditions of confinement, and denying him the right to access the courts.

Count VII alleges that Defendant Hammer conspired with Defendants Kostura and Buskirk to violate

Plaintiff’s Eighth Amendment right to reasonable bail. Count VIII alleges that Defendant Hammer

conspired with Defendants Kostura and Buskirk to violate state law. Count X seeks an injunction

staying Plaintiff’s state court criminal proceedings and requiring the Commonwealth of Pennsylvania

to release him from prison on the grounds that the criminal proceedings are the product of a masonic,

anti-Catholic conspiracy. On April 16, 2007, Plaintiff filed a Motion for Extension of Time to

respond to Defendant Hammer’s Motion for Summary Judgment. His request was granted and he

filed his response on May 2, 2007. 

Although Plaintiff’s claims for violation of his Fourth Amendment rights, which were

asserted in Counts II, III, IV and IX of the Second Amended Complaint, have been dismissed,

Plaintiff’s response to Defendant Hammer’s Motion for Summary Judgment is addressed almost

entirely to those claims. Plaintiff has elected not to submit any additional evidence or argument in

support of the remaining claims of the Second Amended Complaint. Plaintiff has elected, instead,

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to rely on his response to the Motion for Summary Judgment submitted by Defendants Kostura and

Buskirk: “Plaintiff refers to and restates his various oppositions to the Motion for Summary

Judgment of defendants Kostura and Bushkirk [sic] and denies defendant’s claim that plaintiff’s

rights were not violated at Northampton County Prison and that defendant Hammer was not involved

in any action at the Prison that could be the basis for a civil rights violation by Detective Hammer.”

(Pl. Reply at 9.) We granted Defendants Kostura’s and Buskirk’s Motion for Summary Judgment

with respect to Counts I, IV-VIII and X of the Second Amended Complaint on April 26, 2007,

finding that there was no evidence in the record before us that would support Plaintiff’s claims that

Defendants Kostura and Buskirk violated his civil rights. (4/26/07 Mem. at 17.)

The Second Amended Complaint asserts claims against Defendant Hammer pursuant to both

42 U.S.C. § 1985(3) and 42 U.S.C. § 1983. Section 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 succeed on a claim brought pursuant to Section 1985(3),

Plaintiffs must establish 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., Civ.A.No. 03-3061, 2004 WL 999144, at *17-*18 (E.D.

Pa. May 5, 2004) (citing Kelleher v. City of Reading, Civ.A.No. 01-3386, 2001 WL 1132401, at *2

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(E.D. Pa. Sept. 21, 2001)). The Second Amended Complaint alleges that Defendant Hammer was

motivated to deprive Plaintiff of his civil rights because he is a Roman Catholic. (2d Am. Compl.

¶ 14.) However, there is no evidence in the record that Defendant Hammer acted as a result of antiCatholic beliefs. As Plaintiff has submitted no evidence that Defendant Hammer was motivated by

“class-based, invidiously discriminatory animus,” we find that he is entitled to the entry of judgment

in his favor as a matter of law with respect to Plaintiff’s claims brought pursuant to 42 U.S.C. §

1985(3) in Counts I , IV-VIII and X of the Second Amended Complaint.

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., Civ.A.No. 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

succeed on a claim for conspiracy pursuant to Section 1983, Plaintiff must establish “(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). There is no question that Defendant Hammer was a state actor.

The issues before us with respect to Plaintiff’s Section 1983 conspiracy claims are, accordingly,

whether Defendant Hammer was a participant in a conspiracy to violate Plaintiff’s civil rights and

whether Plaintiff’s civil rights were violated. 

In our Memorandum dated April 26, 2007, we found that there is no evidence in the record

before us to support Plaintiff’s claims that the Defendants violated his Sixth Amendment right to

assistance of counsel, his Eighth Amendment right to reasonable bail, his First, Fifth and Fourteenth

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Amendment rights to access the courts, his Fourteenth Amendment right against cruel and unusual

punishment, and his First Amendment right to religious freedom. (4/26/07 Mem. at 17.) We also

found that there is no evidence in the record to support Plaintiff’s claim that the Defendants obtained

his telephone data in violation of the Pennsylvania Wiretapping and Electronic Surveillance Control

Act or to support his claim that he is the victim of a masonic, anti-Catholic conspiracy. (Id.) In

order to succeed on his claims that Defendant Hammer engaged in a conspiracy to violate his civil

rights pursuant to Section 1983, Plaintiff must establish a deprivation of his civil rights in addition

to the existence of a conspiracy involving state action. Since Plaintiff has put forward no additional

evidence that would create a genuine issue of material fact regarding his claims that his civil rights

were violated, we find that Defendant Hammer is entitled to the entry of judgment as a matter of law

on all claims asserted against him in the Second Amended Complaint pursuant to Section 1983.

Defendant Hammer’s Motion for Summary Judgment is, therefore, granted.

BY THE COURT:

/s/ John R. Padova

_______________________

John R. Padova, J.

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