Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2006

Miller v. Hassinger
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3283




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                                               NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       NO. 05-3283
                    ________________

                    RODNEY MILLER,

                              Appellant

                              v.


               KENNETH HASSINGER,
           Corporal, Pennsylvania State Police;
             NICHOLAS BLOSCHICHAK;
             TRP. CURTIS WHITMOYER;
                SGT. BARRY STAUB;
             DIST. JUST. THOMAS CARR;
                      PAUL DEAN;
               D.A. MICHAEL GEORGE
        ____________________________________

       On Appeal From the United States District Court
           For the Middle District of Pennsylvania
                (D.C. Civ. No. 02-cv-01520)
          District Judge: Honorable Malcolm Muir
       _______________________________________


         Submitted Under Third Circuit LAR 34.1(a)
                      March 7, 2006

Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                   (Filed: April 6, 2006 )
                                _______________________

                                       OPINION
                                _______________________

PER CURIAM

       Rodney Miller appeals the June 13, 2005 order of the District Court granting

summary judgment in favor of defendant Kenneth Hassinger and denying his motion to

amend his complaint to add four new defendants. Miller also appeals the District Court’s

order striking his motion to compel discovery from the defendants. For the reasons set

forth below, we will affirm in part and vacate in part and remand for further proceedings.

       On August 28, 2002, Miller filed a complaint pursuant to 42 U.S.C. § 1983 in the

United States District Court for the Middle District of Pennsylvania. As relevant to this

appeal, Miller alleged that he owned property located at 1030 Goldenville Road in Butler

Township, Adams County, Pennsylvania. Miller further claimed that on or about January

9, 2001, defendant Hassinger, a Pennsylvania State Police corporal, applied for warrants

to search 1024 & 1030B Goldenville Road. According to Miller, after the police officers

searched the properties named in the warrant and questioned the targets of their

investigation, they forcefully entered his property at 1030A Goldenville Road, causing

damage to a door and door frame in the process. Miller alleged that the warrantless entry

violated his civil and constitutional rights, and requested relief in the form of

compensatory and punitive damages, attorney’s fees, and costs. The District Court sua

sponte dismissed his complaint prior to service, and on July 23, 2004, this Court vacated

                                              2
the dismissal with respect to the claims forming the basis of this appeal, and remanded for

further factual development.

       Following remand and service of the complaint, Hassinger filed an answer on

November 4, 2004, and then moved for summary judgment on February 18, 2005.

Hassinger argued that summary judgment was proper because the search of Miller’s

property was conducted pursuant to a properly-issued and fully-supported warrant and

that, accordingly, there was no Fourth Amendment violation. Hassinger further argued,

with respect to Miller’s claim of property damage, that the Court of Common Pleas of

Adams County had already entered an order directing the subject of the search warrant,

Vincent Nowak, to pay restitution to Miller for the cost of the repairs. Even if the Adams

County order were not accorded full faith and credit, Hassinger argued, because Miller

did not allege that Hassinger personally broke down the door, and because, according to

Hassinger’s statement of material facts, he did not enter the house until after the warrant

had been executed, he could not be held personally liable for the damage.

       In support of his motion, Hassinger submitted a declaration and a statement of

material facts. In his declaration, Hassinger stated: “The search warrants on the premises

at 1024 and 1030 were executed on January 9, 2001. When I arrived at the location, other

troopers had already made entry into the addresses.” Hassinger makes no mention of the

entry into 1030A Goldenville Road, which address it cannot be disputed neither of the

warrants referred to. The statement of material facts cites only to the complaint, the



                                             3
answer, and Hassinger’s declaration, and similarly does not address the circumstances

surrounding the search of 1030A Goldenville Road.

       Miller opposed the entry of summary judgment, arguing that the search of 1030A

Goldenville Road was clearly unconstitutional, given the explicit language of the warrant

describing the location to be searched as follows:

       1030B Goldenville Road, Butler Twp., Adams County, PA. Residence is a
       single story white ranch home, brown shingled roof with detached one story
       grey metal outbuilding. This building is a multi-family structure. 1030B is
       the portion of the home on the right side when facing the front.

According to Miller, 1030A was a separate apartment located on the left side of the

structure, which had no connection to the subject of the warrants issued for 1024

Goldenville Road, where Vincent Nowak resided, and 1030B Goldenville Road, where

Nowak’s step-daughter lived. Furthermore, Miller alleged that the police had already

gained entry to and searched 1024 & 1030B Goldenville Road prior to entering 1030A.

Miller further stated that at the time of the entry, 1030A was owned by Miller and leased

to Michael and Bonnie Martinez, who were in no way involved in the incidents

underlying the warrants. Miller argued that his Fourth, Fifth and Fourteenth Amendment

rights were violated by defendants’ entry into 1030A, that there remained genuine

disputes of material fact as to who entered the apartment and when, and that summary

judgment was not appropriate. Rather, he contended that the Court should order

discovery regarding the search of 1030A Goldenville Road.

       In reply, Hassinger maintained that, because Miller was neither searched nor

                                             4
prosecuted for any violation of Pennsylvania law, he did not have standing to claim a

constitutional injury or “to pursue a claim related to the legality of the execution of the

warrant.”

        In its decision, the District Court first addressed Miller’s standing to bring this

action. The Court relied on Heck v. Humphrey, 

(1994), stating:

       A decision in this case that plaintiff is entitled to damages would imply that
       Vincent Nowak’s conviction resulted partially from evidence obtained
       during the unlawful execution of the search warrant at 1030A and 1030B
       Goldenville Road. Because there has been no prior adjudication pertaining
       to the validity of the search warrant and Mr. Nowak’s conviction has not
       been overturned, Heck bars an action for damages stemming from
       plaintiff’s claim of “unlawful entry”.

The Court went on to say that, even if Heck were not applicable, Miller was without

standing to pursue a Fourth Amendment claim, as he conceded that the apartment in

question had been leased to Michael and Bonnie Martinez. With respect to Hassinger, the

Court concluded that it was “undisputed that other police officer[s] entered the residence

prior to Hassinger arriving,” and therefore that no jury could reasonably find that

Hassinger entered the residence in violation of Miller’s Fourth Amendment rights. With

respect to Miller’s due process claim based on his efforts to recover for damage done to

his property during the search of apartment 1030A, the Court held that the order entered

by the Court of Common Pleas of Adams County precluded Miller from recovering

damages from Hassinger. The Court therefore granted summary judgment in favor of

Hassinger.



                                              5
       Miller timely appealed from the Court’s June 13, 2005 order granting summary

judgment in favor of Hassinger and denying his motion to join four new defendants to the

action.1 Miller also appeals the Court’s order striking his motion to compel discovery

from the defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291.

       A.     Summary Judgment

       We first address the District Court’s grant of summary judgment in favor of

Hassinger. We review a district court’s grant of summary judgment de novo, viewing the

underlying facts and all reasonable inferences therefrom in the light most favorable to the

party opposing the motion for summary judgment. Pennsylvania Coal Ass’n v. Babbitt,

, 235 (3d Cir. 1995). A grant of summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The

non-movant’s allegations are to be taken as true, and when they conflict with those of the

movant, the former must receive the benefit of the doubt. Valhal Corp. v. Sullivan


   1
       On July 23, 2004, this Court affirmed the District Court’s dismissal of District
Justice Thomas Carr from the action. On January 18, 2005, the District Court dismissed
defendants Paul Dean and Michael George. Miller does not refer to the January 18th
order in his notice of appeal or his informal brief. On June 13, 2005, the District Court
dismissed defendant State Troopers Nicholas Bloschichak, Barry Staub and Curtis
Whitmoyer based on Miller’s failure to allege any personal involvement by any of these
defendants in connection with the 2001 search. Miller does not refer to the dismissal of
these defendants in his informal brief. Accordingly, we do not address any of his claims
regarding these defendants.

                                              6
Assocs., 

, 200 (3d Cir.1995).

       The Fourth Amendment guards against unlawful searches and seizures.2 We agree

with the District Court that Miller’s claim of an unconstitutional search is without merit,

given his lack of a privacy interest in the apartment. Minnesota v. Carter, 

, 88

(1998) (individual must demonstrate a reasonable expectation of privacy in place

searched in order to state claim for Fourth Amendment violation). By Miller’s own

admission, the apartment had been leased to Bonnie and Michael Martinez. Miller does

not allege that he had access to the apartment, that he stayed in it, or that he maintained

personal items there. Thus, Miller has set forth no basis from which a reasonable

factfinder could conclude that Miller had a privacy interest in the apartment that was

violated by the search.

       However, our inquiry does not end there, as Miller has alleged facts sufficient to

state a claim of an unlawful seizure. The Supreme Court has defined a seizure as a

“‘meaningful interference with an individual’s possessory interests with that property.’”

Soldal v. Cook County, Illinois, 

, 61 (1992) (quoting U.S. v. Jacobsen, 

, 113 (1984)). Thus, if Miller can demonstrate such an interference, he can

prevail on this claim despite the absence of a claim that his privacy or liberty interests


   2
       The Fourth Amendment provides: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.”

                                              7
were also infringed by this conduct. See 

(“[O]ur cases unmistakably hold that

the Amendment protects property as well as privacy.”). While Hassinger has attempted to

skirt this issue in his brief by arguing that the warrant was supported by probable cause, it

is plain from the face of the warrant issued in connection with the 2001 search – the

validity of which Miller has at no time attempted to dispute – that it permitted only the

search of 1030B Goldenville Road. The warrant specifically described the premises in

question as: “a single story white ranch home, brown shingled roof with detached one

story grey metal outbuilding. This building is a multi-family structure. 1030B is the

portion of the home on the right side when facing the front.” Despite this specific

description of the location to be searched, officers nonetheless forcibly entered 1030A

Goldenville Road, resulting in damage in the amount of $550.

       In Bonds v. Cox, 

(6th Cir. 1994), the Sixth Circuit considered facts

similar to the case at bar. The plaintiff, Kathy Bonds, owned a home in which she no

longer resided. Pursuant to a valid search warrant, police officers entered the residence,

conducted a search and discovered a marijuana pipe and other drug paraphernalia. Bonds

sued the officers for gross negligence in executing the warrant, citing over $20,000 worth

of damage to her house resulting from the search. The Sixth Circuit held that Bonds did

not have standing to contest the search due to her inability to establish a reasonable

expectation of privacy in the residence, but that she could establish that the officers had

“seized” her property within the meaning of the Fourth Amendment while conducting the



                                              8
search. Applying the standard for a seizure articulated by the Supreme Court in Soldal,

the Court held that “[t]he damage to Bonds’ house, which included broken doors,

mutilated vinyl siding, a cracked commode, holes in walls, broken dishes, and trampled

personal belongings, clearly rises to the level of a ‘meaningful interference’ with her

possessory interests.” 

The Sixth Circuit went on to address whether the

Fourth Amendment was the proper vehicle under which to address Bonds’ claim of

property damage, or whether the claim was more properly cognizable under the due

process clause. The court concluded that, under Soldal, such distinctions were no longer

valid and that the claim could arise under both the Fourth Amendment and the due

process clause. 

see also 

(“Certain wrongs affect more

than a single right and, accordingly, can implicate more than one of the Constitution’s

commands.”); Brown v. Muhlenberg Twp., 

, 209, 213 (3d Cir. 2001)

(analyzing claim for loss of property as both Fourth Amendment and procedural due

process violation).

       For the reasons articulated above, we conclude that Miller does have standing to

raise a Fourth Amendment claim for the unconstitutional seizure of his property. Miller

alleges that Hassinger may be held liable in his supervisory capacity for damage to

Miller’s door even if he did not personally cause the damage. We disagree. To prevail on

this claim against Hassinger, Miller must demonstrate personal involvement by Hassinger

in damaging his property. See Rode v. Dellarciprete, 

, 1207 (3d Cir. 1998)



                                             9
(liability under section 1983 may not be based on a theory of respondeat superior). On

remand, Miller will have to demonstrate a material issue of fact as to whether Hassinger

caused the damage to Miller’s door. Because we remand for consideration of Miller’s

motion to compel, as well as further development of Miller’s Fourth Amendment claim,

the parties will have an opportunity to develop the record on this issue.3

       Miller has also advanced a due process claim against Hassinger based on the

forcible entry into 1030A Goldenville Road and the resulting damage to his property. In

our April 16, 2004 order, we specifically remanded for consideration of this issue. As we

explained: “Because the record is not yet developed, we cannot say that such a claim

would fail under the Parratt/Hudson doctrine because the state has provided an adequate

post-deprivation remedy.” On remand, the District Court concluded that any further relief

would be barred by the Adams County order. However, the Court failed to assess

whether the restitution order, which was secured against an individual who is not a party

to this action, and which, according to the record, has not yet been fully satisfied,

constitutes an “adequate post-deprivation remedy” as defined by Parratt v. Taylor, 

(1981), and Hudson v. Palmer, 

(1984). We therefore will vacate


   3
       We note that, while Hassinger has argued that it is undisputed that the entry into
and search of 1030A Goldenville Road took place prior to his arrival on the scene, his
own discovery response belies this assertion. On March 7, 2005, in response to an
interrogatory propounded by Miller, Hassinger indicated that he was one of the “troopers
involved in the entry and search of the premises.” We trust that, on remand, the District
Court will consider this statement, as well as any other relevant assertions in the record, in
assessing any renewed motions for summary judgment.

                                             10
the District Court’s order to the extent it granted summary judgment to Hassinger on this

claim and remand for further consideration.

       B.     Motion to Compel

       The record provides us with some indication of the discovery which has taken

place in this lawsuit thus far. Upon reinstatement of his complaint, Miller immediately

sought discovery of “any and all documents, affidavits, search warrants and such filed,

used to search the premises at 1030 and 1030B Goldenville Rd., Gettysburg, Pa., Adams

County on or about January 9, 2001.” The District Court dismissed this request as

premature and instructed Miller to serve all future discovery requests on counsel for

defendants. On November 15, 2004, Miller served interrogatories on defendants,

presumably requesting the same information as described above. In the record is a two-

page response dated November 29, 2004 in which Hassinger stated that he could not

recall the names of the officers who entered Miller’s property but that the names of the

officers involved should be listed on the search warrant. In fact, the only name on the

warrant is Hassinger’s. In addition, Miller requested that Hassinger produce police

reports related to the searches in question, which Hassinger objected to on grounds of

“relevance, unlikelihood to lead to the production of admissible evidence, and privilege as

established by the Criminal History Records Information Act, Pa. Cons. Stat. §§ 9101 et

seq.” It does not appear that these objections were ever resolved.

       On December 17, 2004, approximately five months after reinstatement of his



                                              11
complaint, Miller filed a motion to compel, seeking “any and all relevant documents in

regard to entry and search of 1030 or 1030A Goldenville Road, Gettysburg on or about

January 9, 2001. Evidence that would cite persons, time and tools used to gain entry as

well as any other pertinent information to this case.” The District Court struck Miller’s

motion to compel from the record for failure to seek leave of the Court before filing the

motion, citing Local Rule 5.4 in support of this ruling. Local Civil Rule 5.4(b) provides:

“Interrogatories, requests for disclosures, requests for documents, requests for

admissions, and answers and responses thereto shall be served upon other counsel and

parties but shall not be filed with the court except as authorized by a provision of the

Federal Rules of Civil Procedure or upon an order of the court.”

       Typically, the management of discovery is committed to the sound discretion of

the district court. Wisniewski v. Johns-Manville Corp., 

, 90 (3d Cir.1987).

We therefore review the order of a district court relating to discovery for abuse of

discretion. Gallas v. Supreme Court of Pennsylvania, 

, 778 (3d Cir. 2000).

Here, the District Court struck Miller’s motion to compel without acting on it, citing

Local Rule 5.4 as support. However, this rule applies to the filing of requests for and

responses to discovery, not motions to compel discovery as provided for by Rule 37(a) of

the Federal Rules of Civil Procedure. The District Court’s failure to act on this motion in

the first instance constitutes an abuse of discretion. See Ray v. Robinson, 

,

478 (3d Cir. 1981). We therefore will vacate the District Court’s order striking Miller’s



                                             12
motion to compel.

       C.     Motion for Joinder

       On March 14, 2005, Miller filed what he termed a motion for joinder, requesting

permission of the Court to add four additional state troopers as defendants. In the brief

filed in support of his motion, Miller indicated that the names of these four state troopers

were disclosed to him in a recent response to a discovery request. Presumably, he is

referring to Hassinger’s March 7, 2005 discovery response indicating that “the troopers

involved in the entry and search of premises included Kenneth Hassinger, Todd Rudy,

James Borza, T.E. Pinkerton, and John Brumbagh.” As noted by defendant, while the

motion was captioned under Rule 19 of the Federal Rules of Civil Procedure, it was more

properly analyzed under Rule 15, which governs the amendment of pleadings. Relying on

Rule 15(c), the District Court denied the motion in its June 13, 2005 order based on

Miller’s inability to “meet the necessary requirements of Fed. R. Civ. P. 15(c)(3) to

permit an amendment.”

       We review the District Court’s decision denying Miller’s motion to amend his

complaint for abuse of discretion. Garvin v. City of Philadelphia, 

, 219 (3d

Cir. 2003).

       Rule 15(c) governs the relation back of a complaint adding new parties. In

pertinent part, it provides:

       (c) Relation Back of Amendments. An amendment of a pleading relates
       back to the date of the original pleading when . . .

                                             13
       (2) the claim or defense asserted in the amended pleading arose out of the
       conduct, transaction, or occurrence set forth or attempted to be set forth in
       the original pleading, or
       (3) the amendment changes the party or the naming of the party against
       whom a claim is asserted if the foregoing provision (2) is satisfied and,
       within the period provided by Rule 4(m) for service of the summons and
       complaint, the party to be brought in by amendment (A) has received such
       notice of the institution of the action that the party will not be prejudiced in
       maintaining a defense on the merits, and (B) knew or should have known
       that, but for a mistake concerning the identity of the proper party, the action
       would have been brought against the party.

       This Court carefully examined the requirements of Rule 15(c) in Singletary v.

Pennsylvania Dep’t of Corrections, 

(3d Cir. 2001), and Garvin v. City of

Philadelphia, 

(3d Cir. 2003). As we have explained, the rule requires that

three conditions be met in order for an amended complaint seeking to substitute newly

named defendants to relate back to the original complaint for statute of limitations

purposes. 

. These conditions are: (1) that the claim against

the newly named defendants arose out of the same conduct, transaction, or occurrence set

forth in the original complaint, (2) that within the 120-day period for service of the

summons and complaint, the newly named party have received notice of the institution of

the action such that it will not be prejudiced in maintaining a defense on the merits, and

(3) that within that same time period of time, the newly named party must have known, or

should have known, that “but for a mistake,” he or she would have been named as a

defendant in the first place. See 

further held that the notice required by Rule 15(c) can be actual or



                                              14
constructive. Where a plaintiff chooses to rely on constructive notice to satisfy the

requirements of Rule 15(c)(3), he or she can demonstrate such notice either through the

shared attorney method or the identity of interest method. See 

. The shared attorney method requires that a plaintiff demonstrate that

there was “some communication or relationship” between the attorney for the named

defendants and the parties sought to be added as defendants prior to the expiration of the

120-day period for service of the summons and complaint.      See 

. The identity of interest method requires the plaintiff to demonstrate that

the circumstances surrounding the filing of the lawsuit permit the inference the notice was

actually received by the parties sought to be added as defendants during the relevant time

period.4   See 

. Based on the record presently

before us, it does not appear that Appellant had a sufficient opportunity to conduct

discovery on the issue of notice. We therefore conclude that it was an abuse of discretion


   4
        While we held in Singletary and Garvin that “a non-management employee . . .
does not share a sufficient nexus of interests with his or her employer so that notice given
to the employer can be imputed to the employee for Rule 15(c)(3) purposes,” the inquiry
in those cases differed from the inquiry in the instant case. In Singletary and Garvin, the
question was whether non-management employees could be imputed to have received
notice from their employers, which had been named as defendants (in Singletary, the
Pennsylvania Department of Corrections, and in Garvin, the City of Philadelphia). In the
instant case, the inquiry is whether the circumstances permit the inference that the
troopers received notice of the pendency of the lawsuit from Trooper Hassinger, a Unit
Supervisor for Troop H Tactical Narcotic Team. The relationship between Hassinger and
the troopers sought to be added is not clear at the present time, and thus we cannot say,
based on the record before us, whether such an inference would be reasonable. We trust
that, on remand, the District Court will thoroughly explore these and other relevant issues.

                                             15
to deny the motion and, accordingly, will vacate the District Court’s order denying

Miller’s motion to amend the complaint.5

       Based on the foregoing, the District Court’s order granting summary judgment will

be affirmed with respect to the Fourth Amendment search claim but otherwise vacated.

The District Court’s orders striking Appellant’s motion to compel and motion to amend

his complaint will be vacated. Appellee’s motion to strike Appellant’s informal brief is

denied.6




   5
        We think it relevant to note here that, in contrast to the appellant in Garvin, who
delayed in filing her lawsuit, in seeking discovery regarding the proper defendants, and in
attempting to amend her complaint, Appellant has acted as diligently as could be expected
under the circumstances. Appellant filed his original complaint only five months after the
incident in questions occurred, well within the statute of limitations. As already
discussed, on December 17, 2004, Miller filed a motion to compel discovery from
Hassinger. Notably, this motion was filed within the 120-day period for service of the
summons and complaint, and had it been promptly acted upon, might have allowed
Appellant sufficient time to provide the newly-discovered state troopers with notice of his
intent to name them as defendants in this action. In addition, in his opposition to
defendant’s motion for summary judgment, Appellant notified the Court of his problems
in obtaining discovery from defendant on this subject, explaining: “Defendant Hassinger
and his attorney have withheld requested discovery information in regard to paperwork
held by the defendant that would name the participants of the illegal search.”
   6
        On October 7, 2005, Miller filed an informal brief with this Court which purported
to be signed by an “authorized Representative on behalf of Rodney Miller, © Ens legis.”
Appellee moved to strike Appellant’s brief for failure to comply with Federal Rule of
Appellate Procedure 32(d), arguing that it was unclear whether Appellant continued to be
a proper litigant before this Court. Miller filed a response indicating that the signature on
his informal brief was in fact his. In light of the foregoing, the motion to strike is denied.

                                             16