BUSKIRK

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GARY L. BUSKIRK, :

Plaintiff, :

:

v. : Case No. 5:22-cv-01826-JDW

:

PENNSYLVANIA BOARD OF :

PROBATION AND PAROLE, , :

Defendants. :

MEMORANDUM

Gary Buskirk asserts that Pennsylvania Probation Agents Scott Mugavero and

Christopher Mitzak, along with their supervisor Alison Robinson, violated his

constitutional rights in their administration of his probation. But Mr. Buskirk has failed to

show that there is any genuine dispute of material fact in this case, and the facts show

otherwise. Thus, I will grant summary judgment in favor of Defendants.

I. BACKGROUND

Mr. Buskirk pleaded guilty to two separate charges of driving under the influence

in two Pennsylvania counties. In 2013, he pleaded guilty to “Driving Under the Influence:

General Impairment” in violation of 75 Pa. C.S. § 3802(a)(1) in Northampton County. He

was sentenced to 60 months of “County Intermediate Punishment,” along with 7 days of

“Restrictive Intermediate Punishment” at the Northampton County Prison, 23 days of work

release, 60 days of house arrest with electronic monitoring, and a $1,500 fine. Then, in

2014, he pleaded guilty to “Driving Under the Influence: Highest Rate of Alcohol” in

violation of 75 Pa. C.S. § 3802(c) in Lehigh County. He was sentenced to 1-2 years’

incarceration to be followed by 3 years of special probation.

Following Mr. Buskirk’s guilty plea in Lehigh County, Judge Craig Dally, a judge in

Northampton County, revoked Mr. Buskirk’s original sentence from the Northampton

County case and resentenced him to 1-2 years’ incarceration to be followed by three years

of “state probation” to run consecutively to the Lehigh County sentence. Following the

resentencing, Judge Dally submitted a formal request to the Pennsylvania Board of

Probation and Parole (the “Board”) asking that Mr. Buskirk be accepted for “special

probation.” (ECF No. 51-8 at 1.) The final page of Judge Dally’s request provides that “[i]f

the [Board] accepts supervision of this case, [Mr. Buskirk] must comply with the General

Conditions of Special Probation or Parole … as well as any Special Conditions of Probation

or Parole imposed by the Court.” ( at 3.) The Board accepted the special probation

request.

Mr. Buskirk reviewed and acknowledged that he understood the conditions

governing his special probation by signing Pennsylvania Board of Probation and Parole

Form 235.1 That form lists the conditions of his parole, including that he remain in the

district unless he obtained “prior written permission of the parole supervision staff,” report

“regularly as instructed and follow[] any written instructions of the Board or the parole

1 Mr. Buskirk makes much of the fact that Form 235 requires two witnesses when the form

is signed by mark and that his form only lists one witness. But Mr. Buskirk did not sign

Form 235 by mark; he signed it with his signature. Thus, only one signature was required.

supervision staff,” and abstain from the “possession” and “use of controlled substances.”

(ECF No. 51-9 at 1.) The form also includes a provision stating, “[i]n consideration of being

granted the privilege of probation/parole by the Court, I hereby agree that: … I expressly

consent to the search of my person, property, and residence without a warrant by agents

of the [Board].” ( ) The form further provides that if Mr. Buskirk violates any condition of

his parole, the Board may lodge a detainer against him.

Mr. Buskirk was supervised by Agent Mugavero through November 2020. On

August 27, 2020, Agent Mugavero conducted a home visit with Mr. Buskirk and described

him as verbally aggressive and appearing under the influence of drugs or alcohol. Agent

Mugavero requested that Mr. Buskirk provide him with a urine sample, but Mr. Buskirk

refused to provide one.2 In addition to this incident, Mr. Buskirk left the parole district

without express consent from Agent Mugavero.

2 In his Answer’s To Defendants’ Statement Of Material Facts, Mr. Buskirk makes several

denials related to his providing urine samples to parole agents. In particular, he denies

that he refused to provide a urine sample to Agent Mugavero on August 27, 2020. (ECF

No. 53 at ¶¶ 27–28.) He also denies providing Agent Fallock with a urine sample that tested

positive for methamphetamines on December 14, 2020 (ECF No. 53 at ¶ 39.) He also

denies providing multiple positive samples to Agent Mitzak. (ECF No. 53 at ¶¶ 51, 53, 56.)

But even though Mr. Buskirk disputes these facts, he fails to point to any evidence in the

record to support his denials. He just makes general denials without any citation to the

record. At best, he speculates that one of the samples he provided may not be his because

Agent Mitzak stored it in his truck overnight. ( ECF No. 53 at ¶ 53.) But unsupported

speculation and general denials are not enough to create a genuine dispute of fact.

, 934 F.2d 497, 500 (3d Cir. 1991).

In December 2020 and January 2021, Agent Fallock supervised Mr. Buskirk. During

this time, Mr. Buskirk told Agent Fallock that he regularly traveled outside the district for

work and family obligations. But Agent Fallock never provided Mr. Buskirk with permission

to travel outside the district. Considering Mr. Buskirk’s admissions to leaving the district,

Agent Fallock ordered Mr. Buskirk to report to the Allentown District Office on December

9, 2020. Agent Fallock then placed a GPS monitor on Mr. Buskirk at Ms. Robinson’s

direction. Less than a week later, Mr. Buskirk provided Agent Fallock with a urine sample

that tested positive for methamphetamines and admitted to using methamphetamines.

That same day, Agent Fallock noticed that Mr. Buskirk’s GPS device had recorded

numerous “shielding violations,” which occur when the GPS monitor shuts down for

various periods of time. Agent Fallock then issued a written warning for Mr. Buskirk’s

violations and instructed him to keep his GPS fully charged and to report for a drug and

alcohol assessment. About two weeks later, on January 4, 2021, Agent Fallock discovered

that Mr. Buskirk’s GPS had shut down for multiple hours the previous day.

Agent Mitzak began supervising Mr. Buskirk in early 2021. On either February 16

or March 16, 2021, Agent Mitzak attempted to contact Mr. Buskirk by phone but was

unable to reach him. Agent Mitzak then used the GPS monitor and located Mr. Buskirk at

his mother’s residence.3

3 Mr. Buskirk seems to deny that Agent Mitzak used the GPS monitor to locate Mr. Buskirk

at his mother’s house and cites to a letter from his mother describing the events that day.

Agent Mitzak entered the property and found Mr. Buskirk asleep in the basement.4

When Mr. Buskirk woke up, Agent Mitzak reported that he “seemed out of it” and “under

the influence or coming off something.” (ECF No. 51-13 at ¶ 7.) Agent Mitzak then had

Mr. Buskirk provide him with a urine sample, which tested positive for

methamphetamines. Over the next few weeks, Mr. Buskirk provided two more urine

samples that tested positive for methamphetamines. And on March 25, 2021, Agent

Mitzak instructed Mr. Buskirk to report to the Allentown parole office the following day.

Mr. Buskirk, however, did not report as directed and, in fact, never showed up any day

after that. Mr. Buskirk then let his GPS monitor die.5

Judge Dally issued a bench warrant for Mr. Buskirk on March 29, 2021, for violating

his terms of supervision by failing to report. At an evidentiary hearing, the Northampton

County Court Administrator made a finding of probable cause that Mr. Buskirk violated

the conditions of his original sentence. The Northampton Court of Common Pleas

confirmed the Court Administrator’s findings and scheduled a hearing before Judge Dally.

( ECF No. 53 at ¶ 47.) But the letter says nothing about how Agent Mitzak located Mr.

Buskirk; it merely describes what happened once Agent Mitzak arrived at the house.

Because this evidence has nothing to do with how Agent Mitzak located Mr. Buskirk, it

does not constitute a genuine dispute of material fact.

4 Mr. Buskirk claims that he went to his mother’s house to drop off mail addressed to his

brother that he had received at his home. (ECF No. 51-2 at 19.)

5 Mr. Buskirk makes a conclusory allegation that his GPS monitor died because Agent

Mitzak took the charger from him and told him he would not need it. But Mr. Buskirk

points to nothing in the record to support this allegation. And “mere allegations” without

any evidentiary support cannot create genuine issues of material fact. , 934 F.2d

at 500.

( at ¶ 67.) But instead of finding that Mr. Buskirk violated his terms of supervision, Judge

Dally dismissed the case, reasoning that there was no evidence that a specific reporting

requirement was imposed when Mr. Buskirk’s was resentenced in 2014. (ECF No. 51-18 at

1 n.2.)

Mr. Buskirk filed this action on May 9, 2022. (ECF No. 2.) At the time, his revocation

proceedings were still pending, so Judge Edward G. Smith (to whom the case was

assigned) stayed the case. In March 2024, Mr. Buskirk informed the Court that the

revocation proceedings had terminated. The case had been reassigned to me, and I lifted

the stay. Mr. Buskirk then filed an Amended Complaint. He asserts violations of his rights

under the Fourth and Eighth Amendments. He seeks $1.6 million in damages to

compensate him for the business he lost while incarcerated. The Defendants move for

summary judgment on Mr. Buskirk’s claims.

II. STANDARD OF REVIEW

“A party may move for summary judgment, identifying each claim or defense – or

the part of each claim or defense – on which summary judgment is sought.” Fed. R. Civ.

P. 56(a). A court will “grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” “A disputed fact is ‘material’ if it would affect the outcome of the suit as

determined by the substantive law.” , 957 F.2d 1070, 1078

(3d Cir. 1992). And the dispute is “genuine” “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” , 477 U.S.

242, 248 (1986). But “[i]f the evidence is merely colorable … or is not significantly

probative, summary judgment may be granted.” at 249–50 (internal citations omitted).

III. ANALYSIS

To establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a violation

of a right secured by the Constitution and the laws of the United States. ,

986 F.2d 682, 685 (3d Cir. 1993). The plaintiff must also show that the alleged deprivation

was committed by a person acting under color of state law.

A. Eighth Amendment

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.”

U.S. Const. amend. VIII. The Supreme Court has interpreted this prohibition not only to

include punishments that are “physically barbarous” but also those that “involve the

unnecessary and wanton infliction of pain” and those that “are grossly disproportionate

to the severity of the crime.” , 452 U.S. 337, 346 (1981). Among such

punishments are those that are “totally without penological justification.”

With respect to Mr. Buskirk’s Eighth Amendment claim, there is no genuine dispute

of material fact that prevents summary judgment in Defendants’ favor. The probation

conditions that Defendants imposed on Mr. Buskirk do not amount to punishments that

are cruel and unusual. Mr. Buskirk contends that he suffered cruel and unusual

punishment because he had to report to parole agents, remain in his assigned parole

district absent written permission, wear a GPS monitor, and be subject to random searches

by his parole agents. But it cannot be said that these conditions were “grossly

disproportionate to the severity of [his] crime” or “totally without penological

justification.” , 452 U.S. at 346. Mr. Buskirk was convicted of driving under the

influence – a serious and dangerous crime. Restrictions such as these are “meant to assure

that the probation serves a period of genuine rehabilitation and that the community is

not harmed by the probationer’s being at large.” , 483 U.S. 868, 875

(1987). And given the severity of his crime, I cannot say that any of the conditions imposed

on Mr. Buskirk were disproportionate to his crime or totally without penological

justification. Defendants are thus entitled to summary judgment on Mr. Buskirk’s Eighth

Amendment claim.

B. Fourth Amendment

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.

Const. amend. IV. This language has generally been interpreted to mean that the

government may not conduct a search or make an arrest without probable cause.

, 269 F.3d 205, 210 (3d Cir. 2001); ,

436 U.S. 499, 514 n.4 (1978) (Stevens, concurring).

1. Search and seizure

Probationers, like everyone else, are protected by the Fourth Amendment’s

requirement that searches and seizures be “reasonable.” , 483 U.S. at 873. Whether

a search is “reasonable” depends on the totality of the circumstances, balancing “the

degree to which it intrudes upon an individual’s privacy” and “the degree to which it is

needed for the promotion of legitimate governmental interests.” Knights,

534 U.S. 112, 118–19 (2001) (internal quotation marks omitted). In the context of a

probation officer conducting a warrantless search of a probationer who consented to

warrantless searches, the balance of those interests leads to “a lesser than probable-cause

standard,” meaning the officer does not need probable cause for his search to be

reasonable. at 121. Indeed, in this context, a probation officer’s search is reasonable

when the officer has “reasonable suspicion that a probationer … is engaged in criminal

activity.”

Mr. Buskirk contends that Defendants violated his Fourth Amendment right against

unreasonable searches and seizures by (1) installing a GPS monitor on his person, (2)

searching his residence and cellphone, and (3) searching his mother’s residence. None of

this, however, was unreasonable.

a. GPS monitor

Mr. Buskirk argues that Defendants unreasonably searched his person in violation

of the Fourth Amendment by installing and continuing to use a GPS device to monitor his

whereabouts during his probationary term. But Agent Fallock had reasonable suspicion

that Mr. Buskirk was violating his terms of probation because Mr. Buskirk admitted to

Agent Fallock that he left the parole district without written permission. Indeed, Mr.

Buskirk does not dispute that he informed Agent Fallock of his trips outside of the district

without written permission. Instead, he tries to justify them as being for family and work

obligations. It was only after Mr. Buskirk made these admissions that Agent Fallock

installed the GPS monitor on Mr. Buskirk with Ms. Robinson’s acquiescence.

Agents Fallock and Mitzak also had reasonable suspicion to support the continued

monitoring of Mr. Buskirk. Indeed, Agent Fallock had observed that Mr. Buskirk’s GPS

monitor had experienced multiple shielding violations where the device shut down for

various periods of time. Even after Agent Fallock issued a written warning, Mr. Buskirk let

the GPS monitor shut down again. And when Agent Mitzak instructed Mr. Buskirk to

report to the probation office, Mr. Buskirk failed to do so and instead let his GPS battery

die.

Based on the totality of these circumstances, the agents had reasonable suspicion

that Mr. Buskirk was violating the geographic restrictions set by his probation conditions.

Thus, while monitoring Mr. Buskirk via a GPS constitutes a search,

, 565 U.S. 400, 404 (2012), that search was not unreasonable.

b. Mr. Buskirk’s residence and cellphone

Mr. Buskirk also contends that Agent Mitzak unreasonably searched his home and

cellphone. But Mr. Buskirk fails to provide any evidence that Agent Mitzak searched his

home. And even if Agent Mitzak did so, he had reasonable suspicion to believe Mr. Buskirk

was violating the terms of probation by possessing and using illegal drugs. Mr. Buskirk

had provided several urine samples that tested positive for methamphetamine before and

during Agent Mitzak’s supervision of him. What’s more is that Agent Mitzak observed that

Mr. Buskirk “seemed out of it” and “under the influence or coming off something” at the

time he supposedly looked through Mr. Buskirk’s cellphone. (ECF No. 51-13 at ¶ 7.) The

combination of Mr. Buskirk’s positive drug tests and Agent Mitzak’s impression of Mr.

Buskirk’s behavior amounts to a reasonable suspicion that Mr. Buskirk was using and

maybe in possession of illegal drugs. Thus, even if Agent Mitzak’s actions constitute

searches, those searches were not unreasonable.

c. Residence of Mr. Buskirk’s mother

Mr. Buskirk further contends that Agent Mitzak conducted an unreasonable search

of the home owned by Mr. Buskirk’s mother. The major problem with this claim, however,

is that Mr. Buskirk does not have standing to assert a Fourth Amendment violation for the

search of his mother’s home. Fourth Amendment standing “requires that the individual

challenging the search have a reasonable expectation of privacy in the property searched.”

, 221 F.3d 438, 441 (3d Cir. 2000). Mr. Buskirk did not have a

reasonable expectation of privacy in his mother’s home. Indeed, he admits that he does

not live there nor does he have an ownership interest in the home. (ECF No. 53 at ¶ 48.)

And, in fact, the only reason he was even at his mother’s home was to drop off mail

addressed to his brother that he received at his home. (ECF No. 51-2 at 19.) Ultimately,

Mr. Buskirk was “merely present with the consent of the homeowner.” ,

525 U.S. 83, 90 (1998). That, however, is not enough to give him a reasonable expectation

of privacy in his mother’s home. He therefore may not bring a Fourth Amendment

claim for any unreasonable search of it.

2. False arrest/malicious prosecution

To establish a Fourth Amendment claim for false arrest, a plaintiff must show that

an officer lacked probable cause to arrest him. , 855 F.2d 136,

141 (3d Cir. 1988). Probable cause exists where the facts and circumstances within an

officer’s knowledge were sufficient to warrant a prudent man to believe the suspect had

committed or was committing an offense. , 379 U.S. 89, 91 (1964).

Mr. Buskirk contends that Agent Mitzak and Ms. Robinson falsely arrested him and

engaged in malicious prosecution when they lodged probation warrants to commit and

detain him. But Agent Mitzak and Ms. Robinson had probable cause to arrest Mr. Buskirk.

Prior to the warrants being lodged against him, Mr. Buskirk had provided multiple urine

samples that tested positive for methamphetamine. Mr. Buskirk also failed to appear at

the parole office in direct violation of Agent Mitzak’s directive. In fact, Mr. Buskirk never

reported to the parole office following that directive and instead let his GPS battery die.

Mr. Buskirk was prohibited from possessing and using drugs not only by federal and state

law but also by his probation conditions. Those conditions also required him to report

regularly as instructed by his probation officers. Given that he tested positive for

methamphetamines on multiple occasions, failed to report to probation on the day Agent

Mitzak directed him to, and let his GPS monitor die, the agents had probable cause to

arrest him. His claims for false arrest and malicious prosecution thus fail.

Judge Dally’s dismissal of the probation violation charge does not change this

analysis. Prior to that ruling, the Agents had reason to think that there was a reporting

requirement based on what was in Form 235, and the Agents also had other bases besides

the reporting violations to believe that Mr. Buskirk had violated his probation, including

his drug use. Therefore, Judge Dally’s decision does not alter my analysis.

C. Supervisory Liability

A supervisor can be liable under Section 1983 if she participated in violating the

plaintiff’s rights, directed others to violate them, or had knowledge of and acquiesced in

her subordinate’s violations. , 50 F.3d 1186, 1190–91 (3d Cir.

1995). But if no underlying violation occurred, then there is nothing to hold the supervisor

liable for.

Mr. Buskirk claims that Ms. Robinson “authorized” the GPS monitor that Agent

Mitzak placed on him and the searches of his and his mother’s homes. ( ECF No. 19 at

10, 13.). He also contends that she agreed to lodge a detainer against him following his

failure to report to probation. ( at 13.) But since I hold that none of these amounted

to a constitutional injury, Ms. Robinson cannot be held liable as a supervisor. Thus, Mr.

Buskirk’s claims against her fail.

D. Qualified Immunity

The “qualified-immunity defense shields government agents from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”

, 516 U.S. 299, 305 (1996) (alterations accepted and internal quotation marks

omitted). To determine if qualified immunity applies, courts ask two questions: (A)

whether the defendant’s conduct violated a federal right; and (B) whether the right at

issue was clearly established when the conduct took place. , 572 U.S. 650,

655–56 (2014). The relevant inquiry for determining whether a right was clearly

established is if it would be clear to a reasonable official that his conduct was unlawful in

the situation he confronted. , 533 U.S. 194, 202 (2001).

Defendants are entitled to qualified immunity. Mr. Buskirk failed to show that

Defendants’ conduct violated any federal rights, so the claim would fail at step one of the

qualified immunity analysis. But even if Defendants’ conduct violated a federal right, that

right was not clearly established at the time Defendants’ violation occurred. That’s

because it would not have been clear to reasonable officials in Defendants’ positions that

their conduct was unlawful. Mr. Buskirk doesn’t cite a single case that would have put

Defendants on notice that any of their conduct was impermissible. Meanwhile,

Defendants point to several cases that suggest the opposite. In , the

district judge found that qualified immunity protected (1) a probation agent who drug

tested the special probationer plaintiff to ensure he was not using illegal drugs and (2) a

different probation agent who required the special probationer plaintiff to follow written

instructions. Case No. 5:22-cv-05066-JMG, 2025 WL 242481, at *6 (E.D. Pa. Jan. 17,

2025). In , a federal judge explained that probationers “are commonly

subject to a number of conditions which will comport with the limited rights afforded to

them – such as drug tests, restrictions on houses, jobs, travel, or the like.” Case No. 22-

3013, 2022 WL 16540671, at *8 (E.D. Pa. Oct. 28, 2022). The judge in

acknowledged that subjecting a parolee to urinalysis to determine whether the parolee

was using drugs may be proper when based on reasonable suspicion. Case No. 13-4066,

2016 WL 409228, at *21–22 (E.D. Pa. Feb. 3, 2016). And the Third Circuit, albeit in an

unpublished opinion, held that parole agents may initiate an arrest based on probable

cause. , 326 F. App’x 125, 127–28 (3d Cir. 2009). Considering

this caselaw and the lack of caselaw put forth by Mr. Buskirk, I cannot say that Defendants’

conduct violated clearly established federal rights. Therefore, Defendants are entitled to

qualified immunity on Mr. Buskirk’s Fourth and Eighth Amendment claims.

IV. CONCLUSION

Defendants have shown that there is no genuine dispute of material fact at issue

in this case. Defendants did not violate any of Mr. Buskirk’s rights secured by the

Constitution or the laws of the United States. And even if they had, the right that they

violated was not clearly established. Thus, Defendants are entitled to judgment as a matter

of law. I therefore will grant Defendants’ Motion For Summary Judgment. An appropriate

Order follows.

BY THE COURT:

JOSHUA D. WOLSON, J.

September 10, 2026