Villanova University School of Law: Digital Repository

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-25-2025 
In Re: Justin Parmer 
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Recommended Citation 
"In Re: Justin Parmer" (2025). 2025 Decisions. 700. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/700 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1213 
__________ 
 
In re: JASON PARMER, 
   Debtor, 
 
v. 
 
STEVEN D’AGOSTINO, 
                              Appellant 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 3:23-cv-01670) 
District Judge:  Honorable Robert Kirsch 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
August 22, 2025 
 
Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
 
(Opinion filed:  August 25, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
 
Steven D’Agostino appeals the District Court’s order dismissing his appeal from 
orders of the United States Bankruptcy Court for the District of New Jersey.  Those 
orders had confirmed Debtor Jason Parmer’s bankruptcy plan, denied D’Agostino’s 
motion to dismiss Parmer’s bankruptcy petition, and denied D’Agostino’s motion to 
reconsider.  For the following reasons, we will affirm the District Court’s judgment. 
I. 
D’Agostino was a creditor in Parmer’s bankruptcy petition because of a pending 
employment-discrimination suit against Parmer and related parties.  See D’Agostino v. 
Parmer, No. 23-1670, 2024 WL 1197767, at *1.  D’Agostino moved to dismiss Parmer’s 
petition in the Bankruptcy Court as having been filed in bad faith.  See id.  The 
Bankruptcy Court held a hearing on Parmer’s bankruptcy plan and D’Agostino’s motion, 
after which it confirmed the plan and denied the motion to dismiss.  In re Parmer, 23-
1670, 2025 WL 43353, at *1.  It also denied D’Agostino’s motion for reconsideration of 
that order.  Id.  D'Agostino appealed to the District Court.  Id.   
On January 7, 2025, the District Court sua sponte dismissed the appeal for failure 
to comply with Federal Rule of Bankruptcy Procedure 8009, which requires the record on 
appeal to include “any opinion, findings of fact and conclusions of law relating to the 
issues on appeal, including transcripts of all oral rulings.”  Fed. R. Bankr. P. 8009(a)(4).  
The Rule further provides that that an appellant is required to order “a transcript of such 
 
3 
 
parts of the proceedings not already on file as the appellant considers necessary for the 
appeal” and that “[i]f the appellant intends to argue on appeal that a finding or conclusion 
is unsupported by the evidence or is contrary to the evidence, the appellant must include 
in the record a transcript of all relevant testimony and a copy of all relevant exhibits.”  
Fed. R. Bankr. P. 8009(b)(1); (b)(5).   
D’Agostino declined to provide transcripts of the Bankruptcy Court oral 
arguments, asserting that the transcripts were not necessary for the District Court to 
review the orders.  The District Court disagreed with his assertion, finding that without 
the relevant transcripts, it could not review the challenged orders on the merits.  Parmer, 
2024 WL 1197767, at *2.  The District Court issued an order requiring D’Agostino to 
provide the transcripts or show cause as to why the appeal should not be dismissed.  Id. at 
3.  D’Agostino moved to have the transcripts provided at the Government’s expense 
because he was proceeding In Forma Pauperis.  Id. at 3-4.     
The District Court directed the parties back to the Bankruptcy Court to determine 
whether the appeal was not frivolous and presented a substantial question as required to 
receive Government-provided transcripts pursuant to 28 U.S.C. § 753(f).  Id. at 4.  After 
the Bankruptcy Court deemed the appeal frivolous, and D’Agostino failed to file the 
transcripts, the District Court considered the factors in Poulis v. State Farm Fire and 
 
4 
 
Casualty Company, 747 F.2d 863 (3d Cir. 1984), and concluded that dismissal was 
warranted.  See id. at 4-10.  This appeal followed.1   
II. 
Because D’Agostino’s brief fails to address how the District Court’s abused its 
discretion in its review of the relevant Poulis factors, he has likely forfeited appellate 
review of the District Court’s determination.2  See Lara v. Comm’r Pa. State Police 125 
F.4th 428, 432 n.5 (3d Cir. 2025) (reiterating that “an issue is [forfeited] unless a party 
raises it in its opening brief” (quotation marks omitted)); see also Kost v. Kozakiewicz, 1 
F.3d 176, 182 (3d Cir.1993).  
Nevertheless, in an abundance of caution, we have examined the District Court’s 
opinion explaining its dismissal and cannot say that the District Court abused its 
discretion in applying the Poulis factors and dismissing the case for failure to comply 
with Rule 8009.  The factors a District Court must weigh under Poulis are: “(1) the extent 
of the party’s personal responsibility; (2) the prejudice to the adversary caused by the 
failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; 
(4) whether the conduct of the party . . . was willful or in bad faith; (5) the effectiveness 
 
1  This matter was submitted on the Appellant’s brief only.  We have jurisdiction pursuant 
to 28 U.S.C. §§ 158(d)(1) and 1291.  We review the District Court’s order for abuse of 
discretion.  See Jewelcor Inc. v. Asia Com. Co., Ltd., 11 F.3d 394, 397 (3d Cir. 1993).    
2  D’Agostino’s brief focuses on alleged errors committed by the Bankruptcy Court, but 
those issues are not before us.   
 
5 
 
of sanctions other than dismissal, which entails an analysis of alternative sanctions; and 
(6) the meritoriousness of the claim.”  747 F.2d at 868.  A District Court must also 
consider whether the Appellant was provided with notice and an opportunity to respond.  
See In re Harris, 464 F.3d 263, 265 (2d Cir. 2006).   
Here, the District Court’s order provided an analysis of the Poulis factors as 
required, with a particular focus on whether any other sanction would be appropriate.  
See Palmer, 2025 WL 43353, at 8-9.  We have examined the District Court’s analysis and 
perceive no basis for concluding that dismissal of the appeal was an abuse of discretion.  
Accordingly, we will affirm the District Court’s judgment. 
 


In Re: Justin Parmer

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-25-2025 
August Kreis, IV v. James Alercia 
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Recommended Citation 
"August Kreis, IV v. James Alercia" (2025). 2025 Decisions. 701. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/701 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-3073 
__________ 
 
AUGUST B. KREIS, IV, 
   Appellant 
 
v. 
 
JAMES ALERCIA; PATRICK A. CLINESE, PPD Badge #2733; JOHN GILLEN; 
EVAN GOLDSTEIN, PPD Badge #2703; KENNETH MCPHERSON; PALMER 
TOWNSHIP 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil Action No. 5:21-cv-03321) 
District Judge:  Honorable Cynthia M. Rufe 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
August 11, 2025 
 
Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
 
(Opinion filed: August 25, 2025) 
___________ 
 
OPINION* 
___________ 
 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
PER CURIAM 
 August Kreis, IV, appeals pro se from the District Court’s order granting the 
appellees’ motion for summary judgment. We will affirm in part, vacate in part, and 
remand for further proceedings. 
I. 
 On November 8, 2020, Kreis’ sister found a gun under his bed, brought it to the 
Palmer Township Police Department, and reported to Officer Evan Goldstein that Kreis’ 
possession of the gun was illegal based on his criminal history. Kreis’ stepfather also 
gave a statement about an incident that occurred a few months before in which Kreis 
assaulted him and threatened him with the same gun. Based on Kreis’ criminal history 
and the statements from Kreis’ family members, Goldstein immediately sought and 
obtained a warrant for Kreis’ arrest, charging him with unlawful possession of a firearm 
by a convicted felon, as well as search warrants for his house and car. 
 Later that night, nine police officers were dispatched to Kreis’ address to execute 
the warrants. Officer John Gillen spoke on the phone with Kreis, who agreed to come 
outside. He then walked through the front door toward Officers Gillen and Kenneth 
McPherson. At some point, Kreis turned away from the officers. They immediately 
attempted to gain physical control of Kreis, which caused all three men to fall to the 
ground. McPherson tased Kreis. Kreis, who has epilepsy, began seizing. At this point, 
Officer Patrick Clinese approached and, seeing Kreis reach for McPherson’s service 
 
3 
 
weapon while struggling with McPherson and Gillen on the ground, also deployed his 
taser on Kreis. When Kreis stopped seizing and came to, Officer James Alercia was 
pointing an assault rifle at his head. Kreis was then handcuffed, placed in custody, and 
taken to the hospital. He suffered several bruises, including one on the front of his head, 
injuries from the taser barbs, dizziness lasting several days, and headaches lasting three 
weeks. Kreis was additionally charged with and later pleaded guilty to resisting arrest and 
disarming a law enforcement officer, as well as various crimes related to the earlier 
incident with his stepfather.  
 In July 2021, Kreis filed a complaint pursuant to 42 U.S.C. § 1983, which he later 
amended, alleging violations of his Fourth and Fourteenth Amendment rights. The 
District Court ultimately dismissed most of Kreis’ claims but allowed his excessive force 
claims against defendants McPherson, Gillen, Clinese, and Alercia to move forward. 
These remaining defendants filed a motion for summary judgment, which the District 
Court granted, explaining that the officers’ actions in effecting Kreis’ arrest were 
objectively reasonable under the circumstances. Kreis timely appealed. 
II. 
We have jurisdiction under 28 U.S.C. § 1291. We construe Kreis’ filings liberally, 
see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), but we do not consider 
issues that he does not raise. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) 
(explaining that litigants forfeit claims that they fail to develop in an opening brief). 
 
4 
 
Kreis’ opening brief contests only the District Court’s order granting summary 
judgment, over which we exercise de novo review. See Wharton v. Danberg, 854 F.3d 
234, 241 (3d Cir. 2017). Summary judgment is proper when, viewing the evidence in the 
light most favorable to the nonmoving party, the record “shows that there is no genuine 
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 
Fed. R. Civ. P. 56(a); Kaucher v. County of Bucks, 455 F.3d 418, 422–23 (3d Cir. 2006). 
A genuine dispute of material fact exists if the evidence is sufficient for a reasonable 
factfinder to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 248 (1986). The non-moving party “must go beyond pleadings and provide 
some evidence that would show that there exists a genuine issue for trial.” Jones v. 
United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).  
III. 
“The question in excessive force cases is whether, under the totality of the 
circumstances, ‘the officers’ actions are objectively reasonable in light of the facts and 
circumstances confronting them, without regard to their underlying intent or 
motivation.’” Anglemeyer v. Ammons, 92 F.4th 184, 188 (3d Cir. 2024) (quoting 
Graham v. Connor, 490 U.S. 386, 397 (1989)). This determination is made based on the 
officers’ perspective at the scene, “rather than with the 20/20 vision of hindsight.” Id. 
(quoting Graham, 490 U.S. at 396). In addition, “[t]he history of the interaction, as well 
 
5 
 
as other past circumstances known to the officer . . . may inform the reasonableness of 
the use of force.” Barnes v. Felix, 145 S. Ct. 1353, 1358 (2025). 
 The following factors are used to assess officers’ reasonableness: “the severity of 
the crime at issue, whether the suspect poses an immediate threat to the safety of the 
officers or others, and whether he is actively resisting arrest or attempting to evade arrest 
by flight,” Anglemeyer, 92 F.4th at 188, as well as “the physical injury to the plaintiff, 
the possibility that the persons subject to the police action are themselves violent or 
dangerous, the duration of the action, whether the action takes place in the context of 
effecting an arrest, the possibility that the suspect may be armed, and the number of 
persons with whom the police officers must contend at one time.” Id. at 189.  
We are constrained to agree with the District Court that the available evidence 
indicates that Officers Clinese and Alercia acted objectively reasonably. According to 
several officers’ reports, Clinese tased Kreis when he saw Kreis reach for McPherson’s 
service weapon. Cf. Johnson v. City of Phila., 837 F.3d 343, 350 (3d Cir. 2016) (“[O]nce 
[plaintiff] began reaching for [the police officer]’s gun, [the officer] was justified in using 
deadly force to defend himself”). Kreis did not deny that he reached for the gun—on the 
contrary, he pleaded guilty to disarming an officer. Further, Alercia never touched Kreis; 
he only aimed his weapon at Kreis after Kreis’ altercation with the other officers but 
before he was handcuffed. See Graham, 490 U.S. at 396 (“[T]he right to make an 
arrest . . . necessarily carries with it the right to use some degree of physical coercion or 
 
6 
 
threat thereof to effect it.”). Again, Kreis did not deny this version of events. Viewing the 
evidence in the light most favorable to Kreis, as we must, he has failed to show a genuine 
issue of material fact that would enable his claims against Officers Clinese and Alercia to 
survive summary judgment. 
We disagree, however, with the District Court’s grant of summary judgment with 
respect to the claims against Officers McPherson and Gillen. The District Court’s 
analysis of these claims assumes that Kreis was actively resisting arrest throughout the 
entire encounter, and that this resistance rendered McPherson’s and Gillen’s actions 
objectively reasonable. Though Kreis pleaded guilty to resisting arrest, it is not clear from 
which specific facts that conviction arose. Moreover, his conviction for resisting arrest 
“would not be inconsistent with a holding that the officers, during a lawful arrest, used 
excessive (or unlawful) force in response to his own unlawful actions.” Lora-Pena v. 
F.B.I., 529 F.3d 503, 506 (3d Cir. 2008) (per curiam).  
There are genuine issues of material fact regarding whether McPherson’s and 
Gillen’s actions were reasonable. McPherson’s and Gillen’s reports describe a “leg 
sweep” used to trip Kreis. But even in the brief excerpt of Kreis’ deposition provided by 
Appellees, Kreis recounts a notably more violent altercation: he describes the officers 
“slamming [him] to the ground” before he “got a chance to reply [their] orders,” such that 
his head bounced off the ground and induced a seizure. ECF No. 68-1 at 63; see Paladino 
v. Newsome, 885 F.3d 203, 209 (3d Cir. 2018) (“a single, non-conclusory affidavit or 
 
7 
 
witness's testimony, when based on personal knowledge and directed at a material issue, 
is sufficient to defeat summary judgment.” (quoting Lupyan v. Corinthian Colls., Inc., 
761 F.3d 314, 320 (3d Cir. 2014))). Gillen’s and McPherson’s reports also conflict with 
each other: Gillen states that McPherson tased Kreis after they all fell to the ground, and 
McPherson states that he tased Kreis as Gillen tripped him.  
We note that the record in this case is underdeveloped. Although the record 
contains the involved officers’ reports, Kreis’ criminal history records, and the transcript 
of his guilty plea proceeding, it includes only excerpts (eight nonconsecutive pages out of 
119) from Kreis’ deposition. In addition, though body worn camera footage from all 
involved officers was recorded and preserved, none of this footage was placed in the 
record.1  
In sum, we will affirm the District Court’s judgment with respect to the claims 
against Officers Clinese and Alercia. We will vacate the grant of summary judgment with 
respect to the claims against Officers McPherson and Gillen, and remand for further 
presentation of information to the District Court, including Kreis’ full deposition and 
body camera footage if the District Court seeks it, on those claims only. See DeHart v. 
Horn, 227 F.3d 47, 59-60 (3d Cir. 2000) (en banc) (reversing district court's grant of 
summary judgment and remanding for further development of the record). We express no 
 
1 Kreis states in this Court that he requested this footage from the defendants but never 
received it.  
 
 
8 
 
opinion about whether summary judgment would be appropriate in light of a more 
complete record. 
 


August Kreis, IV v. James Alercia

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-26-2025 
Mark Shotwell v. Delaware Department of Safety and Homeland 
Securit 
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Recommended Citation 
"Mark Shotwell v. Delaware Department of Safety and Homeland Securit" (2025). 2025 Decisions. 711. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/711 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
 
No. 24-2754 
_______________ 
 
MARK J. SHOTWELL, 
    Appellant 
 
v. 
 
DELAWARE DEPARTMENT OF SAFETY AND HOMELAND SECURITY, DSHS; 
ROBERT COUPE, DSHS Cabinet Secretary; LEWIS D. SCHILIRO, Former DSHS 
Cabinet Secretary; DELAWARE STATE POLICE; NATHANIEL MCQUEEN, DSP 
Colonel; JASON SAPP, DSP Captain; PETE SAWYER, DSP Captain; ANDREW 
GATTI, DSP Detective; CHRISTOPHER MARTIN, DSP Sergeant; MATTHEW 
TAYLOR, DSP Sergeant; UNIDENTIFIED OFFICERS, that participated in the arrest, 
transportation, and/or search and seizure of Plaintiff's residence and/or electronics 
_______________ 
 
On Appeal from the United States District Court 
for the District of Delaware 
(D.C. No. 1:18-cv-00984) 
Circuit Judge: Honorable Stephanos Bibas* 
_______________ 
 
Argued on July 9, 2025 
 
Before: KRAUSE, MATEY, and PHIPPS, Circuit Judges 
 
(Filed: August 26, 2025) 
 
Dwayne J. Bensing  [ARGUED] 
Jared Silberglied 
American Civil Liberties Union 
100 W 10th Street, Suite 706 
Wilmington, DE 19801 
 
* The Honorable Stephanos Bibas, Circuit Judge, sitting by designation pursuant to 28 
U.S.C. § 291(b). 
 
2 
 
 
 Counsel for Appellant 
 
Julia C. Mayer  [ARGUED] 
Office of Attorney General of Delaware 
Delaware Department of Justice 
820 N French Street, 6th Floor 
Carvel Office Building 
Wilmington, DE 19801 
 
 Counsel for Appellees 
_______________ 
 
OPINION** 
_______________ 
KRAUSE, Circuit Judge. 
  Appellant Mark Shotwell appeals two orders in which the District Court: (1) 
dismissed his Fourth Amendment general-warrant and lack-of-probable-cause claims, 
and (2) granted summary judgment to Appellees on his Fourth Amendment unlawful 
search claim.  We will affirm. 
I. BACKGROUND 
In 2016, Shotwell made several social media posts suggesting he may have been in 
possession of firearms.  At the time, he was prohibited from possessing firearms due to a 
court order.  So Delaware State Police assigned Detective Geoffrey Biddle to investigate.  
Biddle phoned Shotwell to inform him of the investigation, after which Shotwell returned 
Biddle’s call and threatened him.   
 
** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
3 
 
Thereafter, Appellee Sergeant Matthew Taylor applied to a magistrate for a search 
warrant of Shotwell’s home.  In his affidavit, Taylor pointed to several pieces of evidence 
to establish probable cause, including Shotwell’s threats to Biddle and other Delaware 
State Police officers, his social-media posts suggestive of firearms possession, and a 
separate incident during which Shotwell and a companion threatened an Uber driver by 
telling him they had guns.  The magistrate issued two warrants—the Contempt Warrant 
and the Documents and Devices (D&D) Warrant.  The former authorized the search for, 
and seizure of, various weapons, including firearms.  The latter authorized officers to 
search for and seize “[a]ny and all electronic devices” before enumerating several types 
of devices Shotwell might possess.1  App. 128. 
Officers executed the warrants in July 2016.  They recovered no firearms but 
seized fourteen electronic devices.  After these devices were seized, Detective Andrew 
Gatti extracted the data from them and made a copy of that data to be used in a later 
search.  According to Shotwell, “nearly 10,000 files were extracted from [his] cell phones 
alone, including more than 7,000 files from before the investigation began, and many 
 
1 In their answering brief, Appellees ask us to take judicial notice of a third warrant that 
they claim authorized the search of data on any devices seized pursuant to the D&D 
Warrant.  The existence of this purported warrant did not come to light until after 
Appellant filed his opening brief, and counsel for Appellees “has been unable to locate a 
complete copy of [it].”  Answering Br. 11 n.6.  Even assuming that an unauthenticated, 
incomplete warrant is capable of being judicially noticed, we cannot (as Appellees urge) 
take judicial notice of the truth of its content unless it is “generally known within the 
jurisdiction of the trial court, or [it is] capable of accurate and ready determination by 
resort to sources whose accuracy cannot reasonably be questioned.”  Werner v. Werner, 
267 F.3d 288, 295 (3d Cir. 2001).  Neither condition is satisfied here, so we do not 
consider this additional warrant, to the extent it exists. 
 
4 
 
dated even years before the events that gave rise to the investigation,” including “every 
call, text message, photo, calendar entry, Internet search history, etc., that [he] had ever 
entered on these devices, and even previously deleted entries.”  Opening Br. 6.  Unknown 
officers later searched this data using a list of sixteen keywords, none of which appeared 
in either warrant.2 
In July 2018, Shotwell initiated this § 1983 action against Appellees.  The District 
Court dismissed his general-warrant and lack-of-probable-cause claims at the pleading 
stage, and it later granted summary judgment to Appellees on Shotwell’s unlawful search 
claim.  This timely appeal followed. 
II. DISCUSSION3 
On appeal, Shotwell advances three arguments: (1) that the Contempt and D&D 
Warrants are unconstitutional “general” warrants; (2) that neither was supported by 
probable cause; and (3) that a subsequent keyword search of the data on his seized 
devices was unlawful.  We disagree on all fronts. 
 
2 In the underlying criminal proceeding, Shotwell pleaded nolo contendere to one count 
of Disorderly Conduct, an unclassified misdemeanor. 
3 The District Court had jurisdiction under 28 U.S.C. § 1331 and § 1343.  While Shotwell 
named as defendants several unidentified officers who were never formally dismissed, he 
represented at oral argument that he is no long pursuing those claims, making the District 
Court’s summary judgment decision a final order.  Dzielak v. Whirlpool Corp., 83 F.4th 
244, 259 (3d Cir. 2023) (“[A]n order resolving fewer than all claims ‘may become final 
for the purposes of appeal where a plaintiff voluntarily and finally abandons the other 
claims in the litigation,’ . . . [such as] when a plaintiff abandons outstanding claims 
through representations made on appeal . . . .” (quoting Bethel v. McAllister Bros., 81 
F.3d 376, 382 (3d Cir. 1996))).  We therefore have jurisdiction under 28 U.S.C. § 1291 
and conduct plenary review of both a dismissal for failure to state a claim and a grant of 
summary judgment.  Geness v. Cox, 902 F.3d 344, 353 (3d Cir. 2018); Hardy v. Shaikh, 
959 F.3d 578, 584 (3d Cir. 2020). 
 
5 
 
A. The Contempt and D&D Warrants Are Not General Warrants 
Shotwell first contends the warrants are general on their face because they do not 
sufficiently describe with particularity the items to be searched for and seized.  A warrant 
is unconstitutionally “general” when it “authorizes ‘a general exploratory rummaging in a 
person’s belongings.’”  United States v. Christine, 687 F.2d 749, 752 (3d Cir. 1982) 
(quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). 
While the warrants’ descriptions are “certainly extensive” and authorized broad 
searches of Shotwell’s home, they are confined to discrete items, like firearms, or definite 
categories of items, like electronic and media devices.  United States v. $92,422.57, 307 
F.3d 137, 149 (3d Cir. 2002).  In this way, the warrants limited officers’ discretion as to 
what items could be searched for and seized.  So while the warrants “describe[d] in . . . 
inclusive generic terms what is to be seized,” they “did not vest the executing officers 
with ‘unbridled discretion’ to search for and seize whatever they wished.”  Id. (quoting 
Christine, 687 F.2d at 753).  Accordingly, they are not impermissible general warrants. 
Even if the warrants are general on their face, they incorporate the accompanying 
affidavits, which dispel any lingering doubt about their constitutionality.  We may 
construe a warrant in light of a supporting affidavit where it “‘expressly incorporate[s] 
the affidavit,’ and the incorporation [is] ‘clear.’”  United States v. Tracey, 597 F.3d 140, 
147 (3d Cir. 2010) (quoting Doe v. Groody, 361 F.3d 232, 239 (3d Cir. 2004)).  Express 
incorporation does not entail magic words, though, and we have “held an affidavit was 
incorporated where the warrant directed the police officers to search the defendant’s 
premises for evidence which is specified in the annexed affidavit.’”  Id. (citation 
 
6 
 
modified); see also id. at 148 (“Other Courts of Appeals have accepted phrases such as 
‘attached affidavit which is incorporated herein,’ ‘see attached affidavit,’ and ‘described 
in the affidavit,’ as suitable words of incorporation.”). 
Both the Contempt Warrant and the D&D Warrant contain materially identical 
language to that which we held sufficient to incorporate an affidavit in United States v. 
Johnson. 690 F.2d 60, 64 (3d Cir. 1982).  There, the warrant directed officers to search 
the premises “for the following evidence which is specified in the annexed affidavit,” 
followed by several types of evidence.  Id.  The warrants here directed officers “to search 
. . . for the property specified in the annexed affidavit and application.”  App. 122, 128.  
That language clearly and unambiguously incorporates the affidavits submitted in support 
of the warrant applications.  And with the warrants’ respective supporting affidavits 
incorporated, any general-warrant argument dissipates, as the contextualization they 
provide makes clear that officers were authorized to search only for evidence relating to 
the actions described as giving rise to probable cause, and not to conduct the type of 
“exploratory rummaging” prohibited by the Fourth Amendment.4  Coolidge, 403 U.S. at 
467. 
For these reasons, the District Court correctly dismissed Shotwell’s general-
warrant claims. 
 
4 Shotwell separately insists that the D&D Warrant is general because it gave officers 
“[c]arte blanche to search every file on fourteen different electronic and digital devices.”  
Opening Br. 16.  But the D&D Warrant only describes the “items to be searched for and 
seized”—it does not authorize the search of any of those devices.  App. 128 
(capitalization altered) (emphasis added).  Thus, Shotwell cannot succeed in making a 
general-warrant argument premised on a search the D&D Warrant does not authorize. 
 
7 
 
B. The Warrants Were Supported by Probable Cause 
Second, Shotwell argues that the warrants were not supported by probable cause.5  
When reviewing the probable cause determination, our duty “is ‘simply to ensure that the 
magistrate had a substantial basis for . . . concluding that probable cause existed.’”  
United States v. Miknevich, 638 F.3d 178, 182 (3d Cir. 2011) (quoting Illinois v. Gates, 
462 U.S. 213, 238 (1983)).  In other words, we review only to determine whether a 
substantial basis exists to conclude that “there is a fair probability that contraband or 
evidence of a crime will be found in a particular place.”  Gates, 462 U.S. at 238.  If such 
a basis exists, we “must uphold that finding even if a ‘different magistrate judge might 
have found the affidavit insufficient to support a warrant.’”  Miknevich, 638 F.3d at 182 
(quoting United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993)). 
Here, the affidavits accompanying the warrant applications amply support the 
magistrate’s probable cause determinations.  Among other sworn declarations made in his 
applications, Sergeant Taylor affirmed that Shotwell had threatened and harassed 
members of the Delaware State Police, including by “inform[ing] them he knows where 
they lived and described the vehicles owned,” and posting threatening messages on his 
Facebook account, and that he had “threatened [an] Uber Driver to take [him and a 
companion] where they want[ed] because they ha[d] ‘guns.’”  App. 125.  These 
allegations provide a “substantial basis” to believe probable cause existed for each 
 
5 Appellees argue at the threshold that Shotwell is collaterally estopped from relitigating 
the existence of probable cause.  But as they raise it for the first time on appeal, their 
argument is forfeited, and we decline to consider it.  See In re Aquilino, 135 F.4th 119, 
130 n.7 (3d Cir. 2025). 
 
8 
 
category of items to be seized.  Accordingly, the District Court correctly dismissed 
Shotwell’s lack-of-probable-cause claims. 
C. The District Court Correctly Granted Summary Judgment to Gatti 
Finally, Shotwell contends that the District Court erred by granting summary 
judgment to Gatti on the unlawful search claim.  We disagree.   
Section 1983 plaintiffs like Shotwell “must establish the ‘personal involvement’ of 
each named defendant to survive summary judgment and take that defendant to trial.”  
Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 285 (3d Cir. 2018).  Plaintiffs bear this 
burden even in the “unfortunate situation” where they “are unable to identify” the 
individuals who “engaged in unconstitutional conduct.”  Id.   
Here, a review of the record demonstrates that Shotwell cannot establish a genuine 
dispute of material fact concerning Gatti’s involvement in the allegedly warrantless 
search of Shotwell’s devices.  At the summary judgment hearing, Shotwell admitted that 
while he had “a copy of [data] extraction reports with [Gatti’s] name on it,” he had no 
evidence that Gatti did anything except extract data from his devices and that he was “not 
able to determine who searched what and what information.”  Suppl. App. 18, 24.  On 
appeal, Shotwell likewise admits that “Gatti only performed data extractions, nothing 
more.”6  Reply Br. 2.   
 
6 Shotwell has also waived any argument that data extraction itself is a search under the 
Fourth Amendment.  Reply Br. 2 (“Mr. Shotwell agrees with Defendant Gatti’s assertion 
that mere extraction of data is not equivalent to a search of that data.”). 
 
9 
 
Because Shotwell cannot establish a genuine dispute of material fact that any of 
the named officers violated the Constitution “through [their] own individual actions,” 
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), the District Court correctly granted summary 
judgment to the remaining Appellees. 
* * * 
 For the foregoing reasons, we will affirm the District Court’s judgment. 


Mark Shotwell v. Delaware Department of Safety and Homeland Securit

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
9-3-2025 
Cecilia Clinkscale v. Commissioner Social Security 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Cecilia Clinkscale v. Commissioner Social Security" (2025). 2025 Decisions. 729. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/729 
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Law Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
         NOT PRECEDENTIAL 
 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2191 
___________ 
 
CECILIA A. CLINKSCALE, 
              Appellant 
 
v. 
 
COMMISSIONER OF SOCIAL SECURITY 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil Action No. 2:24-cv-01065) 
District Judge:  Honorable Wendy Beetlestone 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
on July 15, 2025 
 
Before:  KRAUSE, PHIPPS, and ROTH, Circuit Judges 
 
(Opinion filed: September 3, 2025) 
_________ 
 
OPINION* 
_________ 
 
 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
 
PER CURIAM 
 Cecilia Clinkscale appeals from the District Court’s order remanding this matter to 
the Commissioner of Social Security.  We will vacate that order and remand. 
I. 
 Clinkscale applied for Social Security disability benefits and requested a hearing 
before an Administrative Law Judge.  The ALJ dismissed her request because she did not 
appear for her hearing and, according to the ALJ, did not respond to an order directing 
her to show cause for not appearing.  Clinkscale appealed the dismissal to the Appeals 
Council, which declined to disturb it.  Clinkscale then sought judicial review by filing pro 
se this action in the District Court under 42 U.S.C. § 405(g).  She asked the court to either 
order payment of benefits or remand to the agency for further consideration.   
Instead of filing an answer and the administrative record, the Commissioner filed a 
motion to remand the matter to the agency pursuant to the fourth sentence of § 405(g).  
That sentence provides:  “The court shall have power to enter, upon the pleadings and 
transcript of the record, a judgment affirming, modifying, or reversing the decision of the 
Commissioner of Social Security, with or without remanding the cause for a rehearing.”  
42 U.S.C. § 405(g) (fourth sentence) (emphasis added).   
The only other source of a District Court’s authority to remand in § 405(g) actions 
is the sixth sentence of § 405(g).  See Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991) 
(holding that remands under sentences four and six are “the only kinds of remands 
3 
 
permitted under” § 405(g)); Kadelski v. Sullivan, 30 F.3d 399, 401 (3d Cir. 1994) (so 
recognizing).  Sentence six provides in relevant part that “[t]he court may, on motion of 
the Commissioner . . . made for good cause shown before the Commissioner files the 
Commissioner’s answer, remand the case . . . for further action by the Commissioner.”  
42 U.S.C. § 405(g) (sixth sentence); see also Shalala v. Schaefer, 509 U.S. 292, 297 n.2 
(1993) (noting this provision); Kadelski, 30 F.3d at 401 (same).1   
When a District Court remands under sentence four, the court does not retain 
jurisdiction and instead enters a final judgment on the merits.  See Forney v. Apfel, 524 
U.S. 266, 269-70 (1998); Schaefer, 509 U.S. at 297, 299-300; Johnson v. Gonzales, 416 
F.3d 205, 209 (3d Cir. 2005).  When a court remands under sentence six, by contrast, the 
court does not enter final judgment at that time and instead retains jurisdiction should 
further review prove necessary following additional agency proceedings.  See Schaefer, 
509 U.S. at 297, 299-300; Melkonyan, 501 U.S. at 99; Johnson, 416 F.3d at 209. 
In this case, the Commissioner requested a remand under sentence four and 
issuance of a final judgment, but he did not specify the judgment sought.  Nor did he state 
any obvious basis for a judgment on the merits.  Instead, he asserted in cursory fashion 
that “further evaluation of the ALJ dismissal is warranted” and that, “[o]n remand, the 
Appeals Council will further consider whether dismissal of Plaintiff’s case was 
 
1 The sixth sentence of § 405(g) also authorizes remands for consideration of new 
material evidence, but that part of the sentence does not appear to be implicated here. 
 
4 
 
appropriate given her March 9, 2023 response to the show cause notice.”  The 
Commissioner did not provide further details.2  Clinkscale opposed the motion for several 
reasons, including that she wanted to review the administrative record.  But the District 
Court granted the motion the next day.  The only explanation it provided was that it was 
remanding “for further administrative proceedings consistent with Defendant’s motion” 
and that “[t]he remand is ordered pursuant to the fourth sentence of 42 U.S.C. [§] 405(g).  
This is a final order.”  Clinkscale appeals pro se.3 
II. 
 Clinkscale argues that the District Court should not have remanded in this posture.  
We agree.  “[I]n § 405(g) actions, remand orders must either accompany a final judgment 
affirming, modifying, or reversing the administrative decisions in accordance with 
sentence four, or conform with the requirements outlined by Congress in sentence six.”  
Melkonyan, 501 U.S. at 101-02.   
 
2 As noted above, the ALJ wrote in dismissing Clinkscale’s proceeding that Clinkscale 
did not respond to an order to show cause.  In his brief on appeal, the Commissioner now 
explains that Clinkscale had indeed responded but that the ALJ did not address her 
response.  But the Commissioner did not provide that additional explanation in its motion 
to remand or in any other filing of record in the District Court.  Nor does it appear that 
Clinkscale’s response was itself of record such that the court could evaluate whether its 
substance warranted remand on the merits.   
 
3 We have jurisdiction to determine our own jurisdiction, see In re Lipitor Antitrust Litig., 
855 F.3d 126, 142 (3d Cir. 2017), including by reviewing the nature of the remand order, 
see Raitport v. Callahan, 183 F.3d 101, 104-05 (2d Cir. 1999) (per curiam).  Clinkscale 
can appeal the order even though it granted some of the relief she sought because she 
argues that the court should have granted more relief by ordering the payment of benefits.  
See Forney, 524 U.S. at 271.  We do not reach that argument in light of our disposition. 
5 
 
The remand order in this case did neither.  Although the District Court stated that 
it entered the order under sentence four, that label is not controlling.  Cf. Sullivan v. 
Finkelstein, 496 U.S. 617, 628 n.7 (1990).  And the court’s order is not in substance a 
sentence-four remand because it was not entered “upon the pleadings and transcript of the 
record”4 and, more importantly, did not “affirm[], modify[], or revers[e] the decision of 
the Commissioner.”  42 U.S.C. § 405(g) (fourth sentence); see also Schaefer, 509 U.S. at 
297 (explaining that sentence four “authorizes a district court to enter a judgment ‘with or 
without’ a remand order, not a remand order ‘with or without’ a judgment”); Melkonyan, 
501 U.S. at 98 (holding that a remand order was not valid under sentence four because it 
“did not affirm, modify, or reverse” the decision in question and did not “make any 
substantive ruling” but instead “merely returned the case to the agency for disposition”).5 
 The order more closely resembles a sentence-six remand because the court entered 
 
4 The Commissioner’s pre-answer motion to remand was not a “pleading,” see Fed. R. 
Civ. P. 7, and no administrative record was filed. 
 
5 We have considered whether the order, when read together with the Commissioner’s 
motion, could be construed to effectively reverse the dismissal of Clinkscale’s proceeding 
on the ground that the ALJ should have considered Clinkscale’s response but did not.  Cf. 
Cf. Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000) (addressing a remand order 
that “sufficiently implicates the merits of the Commissioner’s decision to bring it within 
sentence four”).  But the record, even as supplemented by the Commissioner’s additional 
explanation on appeal, does not contain enough information to conclude that the ALJ 
actually erred in that regard.  And in any event, we will not “sanitize the district court’s 
error . . . by holding that the district court could have entered a [valid] sentence-four 
remand.  The district court made no substantive ruling on the correctness of SSA’s 
decision, which is a necessary prerequisite to a sentence-four remand.”  Krishnan v. 
Barnhart, 328 F.3d 685, 692 (D.C. Cir. 2003). 
6 
 
it on the Commissioner’s pre-answer motion and without a substantive ruling.  But the 
order was not a valid sentence-six remand either because “the District Court did not make 
a finding that ‘good cause’ had been shown, nor did the court . . . anticipate that the 
parties would return to court following the administrative proceedings.”  Melkonyan, 501 
U.S. at 102.  To the contrary, the court expressly entered a final order and terminated the 
case, but without entering the substantive judgment that sentence four requires. 
 Thus, because the District Court’s order is not valid under either sentence four or 
sentence six, we will vacate and remand for further consideration.  See id.; Istre v. Apfel, 
208 F.3d 517, 519-21 (5th Cir. 2000); Raitport, 183 F.3d at 104-05.  We note the 
Commissioner’s assertion in his brief that there have been further developments before 
the agency since the District Court remanded.  We express no opinion on the effect of 
those developments except to note the possibility that the District Court could now retain 
jurisdiction.  That possibility might be more in keeping with the nature of the 
Commissioner’s remand request and might benefit Clinkscale, who has shown some 
difficulty in navigating her various proceedings pro se.  Nevertheless, we express no 
opinion on that issue and instead leave the nature of further proceedings on remand to the 
discretion of the District Court. 
III. 
For these reasons, we will vacate the judgment of the District Court and remand to 
that court for further proceedings.  Clinkscale’s motions are denied. 


Cecilia Clinkscale v. Commissioner Social Security

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
9-12-2025 
Robert Ewans v. State of New Jersey 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Robert Ewans v. State of New Jersey" (2025). 2025 Decisions. 753. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/753 
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DLD-209        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1368 
___________ 
 
ROBERT EWANS, 
   Appellant 
 
v. 
 
STATE OF NEW JERSEY; JONATHAN W. ROMANKOW;  
SOMERSET COUNTY PROSECUTORS OFFICE; DARRIN J. RUSSO 
________________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 2:24-cv-07901) 
District Judge:  Honorable Susan D. Wigenton 
________________________________________ 
 
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or 
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
September 4, 2025 
Before:  RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed September 12, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
Robert Ewans appeals pro se from the District Court’s dismissal of his civil 
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). We will summarily affirm the District 
Court’s judgment. 
Ewans’s District Court filings are replete with sovereign-citizen-like legal jargon,1 
and there are very few asserted facts. Ewans’s operative amended complaint asserted that 
various defendants (referred to throughout his filings as “trespassers”) have caused his 
“false arrest [kidnapping]” and “false imprisonment [hostage taking]” and infringed on 
his freedom of speech by charging him with the crime of terroristic threats. ECF No. 30 
at 2-3. Perhaps most specific is his allegation that the defendants “have fraudulently 
claimed complete control over [his] estate . . . by declaring [him] dead and lost at sea and 
by ruling [him] incompetent.” Id. at 7.   
The District Court sua sponte screened one of Ewans’s earlier complaints and 
dismissed it without prejudice and with leave to amend under 28 U.S.C. § 
1915(e)(2)(B)(ii) for failure to state a claim. After conducting a second screening, the 
District Court dismissed Ewans’s operative amended complaint with prejudice as 
“frivolous” under § 1915(e)(2)(B)(i). Ewans timely appealed. 
 
1 Not all sovereign citizens share the same beliefs, but generally, sovereign citizens 
believe that they are not subject to federal, state, or local law or courts’ jurisdiction. See 
United States v. Taylor, 21 F.4th 94, 101 n.6 (3d Cir. 2021) (collecting cases). Ewans, for 
instance, generally asserts that “the Somerset Superior Court is not [his] government,” 
that he has “no contractual agreement” with that court, and that the court is “a private 
corporation [that has] proceeded in equity law[,] not common law.” ECF No. 40 at 1.  
 
3 
 
We have appellate jurisdiction under 28 U.S.C. § 1291, and we exercise plenary 
review over the District Court’s sua sponte dismissal of a complaint under § 1915(e)(2). 
See Dooley v. Wetzel, 957 F.3d 366, 373 (3d Cir. 2020). We may summarily affirm the 
District Court’s order if an appeal presents no substantial question for our review. See 3d 
Cir. L.A.R. 27.4; IOP 10.6. 
 A claim is frivolous if it “rel[ies] on an ‘indisputably meritless legal theory’ or a 
‘clearly baseless’ or ‘fantastic or delusional’ factual scenario.” Mitchell v. Horn, 318 F.3d 
523, 530 (3d Cir. 2003) (quoting Neitzke v. Williams, 490 U.S. 319, 327-28 (1989)). 
Ewans’s operative complaint listed some claims that commonly arise in § 1983 
litigation—namely, false arrest, false imprisonment, and infringement on his freedom of 
speech—but it asserted no specific plausible allegations that the District Court could have 
considered to determine whether any state actor violated Ewans’s constitutional rights. 
Instead, Ewans relied on a legal theory that would require federal courts to assume that 
his rights were violated simply because (1) he has declared himself to be a “natural 
person,” and (2) he was arrested and prosecuted by state officials acting on behalf of a 
state government, rather than the Governor of New Jersey himself. Because Ewans’s 
complaint was wholly premised on an indisputably meritless legal theory, the District 
Court appropriately dismissed Ewans’s complaint as frivolous pursuant to § 
1915(e)(2)(B)(i). Cf. United States v. Sterling, 738 F.3d 228, 233 n.1 (11th Cir. 2013) 
(observing that courts have summarily rejected sovereign citizens’ legal arguments as 
frivolous); United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) (collecting cases 
 
4 
 
in which Seventh Circuit has dismissed sovereign citizens’ arguments as frivolous and 
concluding that such “theories should be rejected summarily, however they are 
presented”). 
Consequently, we will summarily affirm the District Court’s dismissal of Ewans’s 
complaint.  


Robert Ewans v. State of New Jersey

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
9-12-2025 
USA v. James Larnerd 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. James Larnerd" (2025). 2025 Decisions. 756. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/756 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-2674 
____________ 
UNITED STATES OF AMERICA 
 
v. 
 
JAMES LARNERD, 
          Appellant 
____________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. No. 1:20-cr-00010-001) 
District Judge: Honorable Jennifer P. Wilson 
____________ 
 
Submitted Under Third Circuit L.A.R. 34.1(a) 
September 11, 2025 
 
Before: HARDIMAN, KRAUSE, and CHUNG, Circuit Judges. 
 
(Filed: September 12, 2025) 
____________ 
 
OPINION* 
____________ 
 
HARDIMAN, Circuit Judge. 
James Larnerd appeals an order denying his motion to suppress evidence. We will 
affirm. 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
I 
In May 2019, one of Larnerd’s neighbors, Joanna Nye, contacted the North 
Cornwall Township Police Department to report that a suspicious number of vehicles 
were visiting Larnerd’s residence, each for ten to fifteen minutes. About two weeks later, 
another caller, later identified as Erma Williams, reported information about Larnerd. 
Williams explained that she had once lived at Larnerd’s residence but moved out after 
Larnerd moved in. She reported that she wanted to retrieve property from Larnerd’s 
residence but was concerned about doing so, noting that Larnerd had two firearms and 
dealt methamphetamine out of the residence.  
Officer John Houser returned Williams’s call to interview her. Williams then 
reported that Larnerd threatened her with two firearms a week prior when she visited him 
at home. She also said that she saw Larnerd packaging meth, explaining that people often 
visited the residence to buy drugs. Williams agreed to meet with Houser in person the 
next day.  
At that meeting, Williams told a slightly different story than the one she recounted 
over the phone. She said that she visited the residence just one or two days before their 
call, not a week earlier. And she claimed that she saw Larnerd sell $800 of meth to the 
owner of the house, which she later said would correspond with roughly a half of an 
ounce of the drug. In a handwritten statement prepared the same day, however, Williams 
said she witnessed Larnerd sell one ounce of meth to an unnamed party. Williams also 
described Larnerd’s threat slightly differently. Houser was aware at the time he spoke 
with Williams that she had recently been a heavy meth user.  
3 
Apart from the witness interviews, Houser performed a search of Larnerd’s 
criminal history, which revealed many felony arrests and convictions related to firearms 
and narcotics. Houser also knew that a neighboring county was investigating Larnerd for 
allegedly buying a stolen firearm. Around the same time, Houser called Nye, who 
confirmed that the heavy vehicle traffic to Larnerd’s residence had not subsided.  
Having collected all this information about Larnerd, Houser applied for a search 
warrant two days later. Houser’s supporting affidavit explained that Williams had 
previously lived where Larnerd was now residing, had visited the house to retrieve 
property, and had purchased meth from Larnerd multiple times. But Houser did not 
mention that Williams was a heavy meth user or that she had an ongoing property dispute 
with Larnerd. Houser also stated that Williams had visited the residence one or two days 
before he spoke with her on the phone, omitting her earlier inconsistent statement that the 
visit occurred a week before their phone call. A warrant was issued, and it was executed 
the next day. Police recovered, among other things, two handguns, marijuana, and one 
gram of meth.  
Larnerd was charged with possessing methamphetamine with intent to distribute, 
21 U.S.C. § 841(a)(1); possessing a firearm as a felon, 18 U.S.C. § 922(g)(1); and using a 
drug premises, 21 U.S.C. § 856(a)(1). Larnerd moved to suppress the evidence, arguing 
that Houser recklessly omitted facts from his affidavit in support of the application for a 
search warrant. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978). The District Court 
held a Franks hearing and found that Houser recklessly omitted that Williams was a meth 
user and that she had initially said her visit occurred about one week earlier. Even so, the 
4 
Court denied Larnerd’s motion to suppress, reasoning that a corrected affidavit still 
established probable cause to search the residence.  
The case proceeded to a jury trial where Houser testified about his investigation 
and Larnerd did not renew his motion to suppress. Houser testified that he was the officer 
who responded to Nye’s call and took her report, although he had said otherwise during 
the suppression hearing. He suggested during the suppression hearing that he did not 
surveil Larnerd’s residence. Later at trial, however, he clarified that he was thinking of 
surveillance in the formal sense of a full stakeout, explaining that he tried to surveil 
Larnerd’s residence “[v]ery sparingly” in an attempt to corroborate Nye’s account, 
though he did not report observing heavy vehicle traffic. App. 316. At one point, 
however, he pulled over a vehicle leaving Larnerd’s residence, and he found 13.8 grams 
of marijuana during a search of the vehicle’s occupants. The jury convicted Larnerd on 
all counts, and Larnerd timely appealed.  
II1 
Larnerd argues that the District Court erred by denying his motion to suppress 
because Houser recklessly omitted material facts from his affidavit in support of his 
application for the search warrant, omitted facts from his testimony at the Franks hearing, 
and that his trial testimony contained internal discrepancies and omissions that Larnerd 
asks us to review. The Government counters that a corrected affidavit establishes 
probable cause and that it is inappropriate to consider Houser’s trial testimony because 
 
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 
28 U.S.C. § 1291. 
5 
Larnerd did not renew his objection at trial. We need not resolve the parties’ dispute 
about the relevance of Houser’s trial testimony because, assuming Larnerd is correct on 
that point, the reconstructed affidavit would still have established probable cause. Wilson 
v. Russo, 212 F.3d 781, 789 (3d Cir. 2000). 
Larnerd emphasizes the following omissions from Houser’s affidavit: Williams 
was a heavy meth user; Williams’s account contained several inconsistencies; Williams 
had an ongoing property dispute with Larnerd; Houser’s surveillance did not corroborate 
the report of heavy vehicle traffic at Larnerd’s residence; and Houser stopped a vehicle 
leaving the residence and found only a “small” amount of marijuana.  
 A reconstructed affidavit including all these points still would have established 
probable cause to search Larnerd’s residence. When he submitted his affidavit, Houser 
included Williams’s report that Larnerd was selling narcotics from the residence and 
possessed two firearms as a felon. He also included Nye’s reports of suspicious vehicle 
traffic at the home and that Larnerd had many felony convictions for narcotics offenses. 
All those facts provide ample evidence that “there [was] a fair probability that contraband 
or evidence of a crime [would] be found in [Larnerd’s residence].” Illinois v. Gates, 462 
U.S. 213, 238 (1983). 
 We are unmoved by the flaws Larnerd claims to find in Houser’s investigation. 
Houser’s limited surveillance of Larnerd’s residence was inconclusive and did not 
undermine Nye’s report. And although Williams’s account contained some 
inconsistencies, the thrust of her claims was corroborated by Nye’s report and Larnerd’s 
criminal history. 
6 
Resisting this conclusion, Larnerd also suggests that Houser had a duty to more 
fully investigate Williams’s criminal background before preparing his affidavit. He 
insists that would have revealed that Williams had a conviction for possessing drug 
paraphernalia and faced pending charges in two cases: (1) for possessing marijuana and 
drug paraphernalia; and (2) for allegedly stealing a firearm that police suspected Larnerd 
bought. We disagree. 
As Larnerd concedes, the District Court credited Houser’s testimony at the Franks 
hearing that he was unaware of the pending charges against Williams. And Houser acted 
reasonably under the circumstances by confirming that Williams was not on probation 
and did not have any outstanding warrants. He reasonably viewed her as a witness or civil 
complainant rather than a criminal informant. So he did not act recklessly by declining to 
perform a full criminal history check. See United States v. Brown, 631 F.3d 638, 648 (3d 
Cir. 2011) (“[I]n general, the failure to investigate fully is not evidence of an affiant’s 
reckless disregard for the truth.”).  
That is especially clear here because, although “[i]nformants are not presumed to 
be credible,” the information from Williams was “corroborated through independent 
investigation.” United States v. Yusuf, 461 F.3d 374, 384 (3d Cir. 2006). Nye’s report of 
suspicious vehicle traffic corroborated Williams’s allegation that Larnerd was selling 
narcotics. Larnerd’s many felony narcotics convictions provided more corroboration as 
well.  
III 
For the stated reasons, we will affirm the District Court’s order and judgment. 


USA v. James Larnerd

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-20-2025 
In Re: Dwight Campbell 
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Recommended Citation 
"In Re: Dwight Campbell" (2025). 2025 Decisions. 507. 
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CLD-140        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1330 
___________ 
 
IN RE: DWIGHT CAMPBELL, 
    Petitioner 
____________________________________ 
 
On a Petition for Writ of Mandamus from the 
United States District Court for the Western District of Pennsylvania 
(Related to W.D. Pa. Civ. Nos. 3:20-cv-00151, 3:20-cv-00228) 
____________________________________ 
 
Submitted Pursuant to Fed. R. App. P. 21 
May 1, 2025 
 
Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges 
 
(Opinion filed June 20, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 
 Pro se petitioner Dwight Campbell seeks a writ of prohibition.  Because Campbell 
has not demonstrated that he is entitled to such relief, we will deny his petition. 
Campbell has filed several federal lawsuits regarding state court proceedings in 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
 
 
2 
Blair County, Pennsylvania.  The District Court dismissed those cases, and we later 
affirmed three of those dismissals, while a fourth appeal was dismissed for failure to 
prosecute.  In one of those cases, the District Court concluded that Campbell had 
accumulated three strikes under 28 U.S.C. § 1915(g).   
Campbell’s petition requests that this Court: (1) order the District Court to take 
action on amended complaints and other documents he filed in his dismissed cases and 
grant him equitable relief, and (2) prohibit courts from using the three-strikes rule against 
him in the future.  Campbell’s petition was dismissed for failure to prosecute in February 
2025, after which he filed a motion to reopen and an application to proceed in forma 
pauperis (“IFP”) in this case.   
We grant his motions to reopen and proceed IFP.  However, we will deny his 
petition.  A writ of mandamus or prohibition is a “drastic remedy” that may be granted 
“only in extraordinary circumstances in response to an act amounting to a judicial 
usurpation of power.”  In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 
2005) (citation omitted); see also United States v. Santtini, 963 F.2d 585, 593-94 (3d Cir. 
1992) (explaining that a petition for a writ of prohibition is governed by the same 
standard as a mandamus petition).  To obtain a writ of prohibition, “a party must establish 
that (1) no other adequate means [exist] to attain the relief he desires, (2) the party’s right 
to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the 
circumstances.”  Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) 
 
 
3 
(alteration in original) (internal quotation marks and citation omitted).  Campbell has not 
met that standard. 
Campbell has not shown a clear and indisputable right to submit filings and 
receive rulings indefinitely in his attempts to relitigate issues in his cases, particularly 
where he has had numerous opportunities to pursue his underlying claims, including on 
appeal in this Court.  Cf. Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996) (explaining 
that mandamus is not a substitute for an appeal).  Additionally, to the extent that he asks 
this Court to prevent a hypothetical future court from concluding that he has three strikes 
under the PLRA, he has not explained why he would be unable to raise that issue it if 
came up in a future case. 
Accordingly, we will deny Campbell’s petition. 


In Re: Dwight Campbell

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-23-2025 
Fulton County v. Dominion Voting Systems Inc 
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Recommended Citation 
"Fulton County v. Dominion Voting Systems Inc" (2025). 2025 Decisions. 513. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/513 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT  
_____________ 
No. 24-2771 
_____________ 
 
FULTON COUNTY; FULTON COUNTY BOARD OF ELECTIONS, and; STUART L. 
ULSH, in his official capacity as County Commissioner of Fulton County and in his 
capacity as a resident, taxpayer and elector in Fulton County, and; RANDY H. BUNCH, 
in his official capacity as County Commissioner of Fulton County and in his capacity as a 
resident, taxpayer and elector of Fulton County 
v.  
 
DOMINION VOTING SYSTEMS, INC.; U.S. DOMINION, INC. 
 
FULTON COUNTY BOARD OF ELECTIONS, 
   Appellant 
____________ 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. No. 1:22-cv-01639) 
District Judge:  Honorable Sylvia H. Rambo 
____________ 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
June 16, 2025 
___________ 
Before:  CHAGARES, Chief Judge, MONTGOMERY-REEVES and MCKEE, Circuit 
Judges 
 
(Opinion filed: June 23, 2025) 
____________ 
 
OPINION 
____________ 
 
 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not 
constitute binding precedent. 
2 
CHAGARES, Chief Judge. 
 The Fulton County Board of Elections (the “Board”) and two of its members, 
Stuart Ulsh and Randy Bunch,1 filed a complaint alleging that Dominion Voting Systems 
(“Dominion”) breached a contract for the provision of voting systems to Fulton County, 
Pennsylvania (the “County”).  The District Court determined that none of the plaintiffs is 
a party to the contract and dismissed the complaint for lack of standing.  We agree that 
the plaintiffs do not have standing to seek relief under the contract and will affirm the 
District Court’s order dismissing the complaint.   
I. 
In August 2019, Dominion and the County entered into a “Managed Services 
Agreement” (the “Agreement”) for the provision of “voting system services, software 
licenses, and related services” to the County.  Appendix Volume II (“App.”) 31.2  The 
Agreement identified “Dominion Voting Systems, Inc.” and “Fulton County, PA” as the 
contracting parties.  App. 41.  In January 2019 the Secretary of the Commonwealth of 
Pennsylvania conditionally certified the voting system provided by Dominion for use in 
Pennsylvania elections.  In November 2020, however, the Board claims that it “became 
aware of severe anomalies” in voter data generated by the Dominion system.  App. 308 
(¶ 65).  A report prepared by “Wake TSI,” a third party engaged by the County to inspect 
 
1 We note that Bunch is now also one of the three commissioners of Fulton County.  See 
Fed. R. Evid. 201(b).     
 
2 We may consider the Agreement because it is the basis of the plaintiffs’ complaint and 
was attached thereto as an exhibit.  See In re Asbestos Prods. Liab. Litig. (No. VI), 822 
F.3d 125, 133 n.7 (3d Cir. 2016).    
3 
the system, noted several purported deficiencies.  App. 311 (¶ 79).  The Secretary of the 
Commonwealth determined that the inspection of the voting system by Wake TSI had 
compromised the system’s integrity and decertified it for use.  The County later 
commissioned an additional third-party inspection of the decertified system.3  The 
plaintiffs allege that this report “revealed several deficiencies . . . that directly implicated 
and contradicted the . . . terms, conditions, promises, and warranties provided” in the 
Agreement.  App. 313 (¶ 89). 
 The plaintiffs filed a complaint against Dominion in the Court of Common Pleas 
for Fulton County, Pennsylvania, on September 21, 2022, asserting one count of breach 
of contract and one count of breach of warranty.  Dominion removed the case to the 
United States District Court for the Middle District of Pennsylvania and filed a motion to 
dismiss.  The District Court determined that the Board, Ulsh, and Bunch, as non-parties 
to the Agreement, lacked standing to assert rights arising under the Agreement.  The 
court also concluded that, insofar as the County itself sought relief under the Agreement, 
the County had failed to allege that the voting system became unusable because of acts or 
omissions attributable to Dominion.  Instead, the court explained, “the system was only 
decertified by the Pennsylvania Department of State because of Fulton County’s own 
 
3 We note that the Supreme Court of Pennsylvania imposed sanctions on the County after 
determining that the County “willfully violated an order of th[e] Court” by 
commissioning this additional third-party inspection.  County of Fulton v. Sec’y of 
Commonwealth, 292 A.3d 974, 979 (Pa. 2023).  The Supreme Court of Pennsylvania also 
imposed sanctions on the County’s attorney after concluding that he “in tandem with and 
also independently of his clients” was “guilty of relentlessly dilatory, obdurate, vexatious 
and bad-faith conduct” during proceedings related to the County’s efforts to inspect the 
Dominion voting system.  Id. at 1018.   
4 
conduct in permitting a third[]party to access and inspect the system.”  Supplemental 
Appendix 50.  The court dismissed the complaint in its entirety.4   
 The Board, Ulsh, and Bunch thereafter filed an amended complaint, which is the 
operative pleading.  As in the original complaint, the plaintiffs asserted one count of 
breach of contract and one count of breach of warranty.  New to the amended complaint, 
however, was a statement specifying that the County was not itself a party to the lawsuit.  
Instead, the plaintiffs suggested that, because “there is no functional difference” between 
the Board and the County, the Board was entitled to assert the County’s rights under the 
Agreement.  App. 295, n.1.  According to the plaintiffs, the amended complaint’s 
reference “to ‘Fulton County’” was “simply a convention of the pleading.”  Id.   
Dominion filed a motion to dismiss the amended complaint, which the District 
Court granted.  The court again determined that the Board, Ulsh, and Bunch lacked 
standing because none is a party to the Agreement.  And the court concluded that, even if 
the plaintiffs could assert rights under the Agreement, they had failed to allege that the 
decertification of the voting system was attributable to Dominion rather than to the 
County itself.  The District Court therefore dismissed the amended complaint for lack of 
standing, with prejudice.  The Board, Ulsh, and Bunch timely filed this appeal.        
 
4 The court dismissed the complaint “with prejudice to the extent [that the plaintiffs] 
allege[d] that Defendants breached the parties’ contract and warranties contained therein 
and/or caused Plaintiffs damages by providing Fulton County with a voting system that 
left it unable to comply with state and federal election requirements.”  The court 
otherwise dismissed the complaint without prejudice.  
5 
II.5 
To establish standing — and, therefore, a district court’s subject-matter 
jurisdiction over a putative lawsuit — a plaintiff must allege (1) “an injury in fact,” that 
is, the “invasion of a legally protected interest”; (2) “a causal connection between the 
injury and the conduct complained of”; and (3) that it is “likely . . . that the injury will be 
redressed by a favorable decision.”  George v. Rushmore Serv. Ctr., LLC, 114 F.4th 226, 
234 (3d Cir. 2024) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).   
We review de novo a district court’s conclusions regarding standing and subject-matter 
jurisdiction.  Freedom from Religion Found. Inc. v. New Kensington Arnold Sch. Dist., 
832 F.3d 469, 475 n.4 (3d Cir. 2016) (standing); Geda v. Dir. U.S. Citizenship & Immigr. 
Servs., 126 F.4th 835, 841 (3d Cir. 2025) (subject-matter jurisdiction).   
The only “legally protected interest” asserted by the Board, Ulsh, and Bunch is 
that created by the Agreement.  George, 114 F.4th at 234.  But none of the three 
appellants is named as a party to the contract.  And the appellants do not dispute that as a 
general matter the Board and the County have separate legal identities.  They suggest, 
instead, that the Board and County are “one and the same for purposes of . . . entering 
into contracts for voting machine services,” Appellants’ Br. 19 (emphasis added), 
because the Board enjoys a statutory authority to “purchase . . . election equipment” on 
the County’s behalf, see 25 Pa. Const. Stat. § 2642(c).  The Agreement, however, does 
not involve an exercise of the Board’s statutory authority to purchase election equipment:  
 
5 The District Court had jurisdiction under 28 U.S.C. § 1332 to resolve the question of 
standing.  Our Court has appellate jurisdiction under 28 U.S.C. § 1291.  
6 
the contract’s plain terms indicate that the County concluded the contract on its own 
behalf, without intermediation by the Board.6  The Board’s unexercised authority to 
conclude a contract of the same kind as the Agreement cannot change the nature of the 
Agreement itself.   
Nor is there is any possibility that the Board, Ulsh, or Bunch may have rights 
under the Agreement as third-party beneficiaries.  This possibility is clearly foreclosed by 
a paragraph of the Agreement providing that “[n]o obligation of Dominion . . . may be 
enforced against Dominion . . . by any person not a party to th[e] Agreement.”  App. 348.  
We conclude, therefore, that the Board, Ulsh, and Bunch, as non-parties to the 
Agreement, have not suffered any “invasion of a legally protected interest” by the 
contract’s alleged breach.  George, 114 F.4th at 234.  Because the Board, Ulsh, and 
Bunch have not alleged an essential element of the jurisdictional requirement of standing 
— injury in fact — the District Court lacked jurisdiction over their lawsuit.     
III. 
For the foregoing reasons, we will affirm the District Court’s order dismissing the 
complaint.     
 
6 The appellants contend that Ulsh and Bunch may assert the County’s rights because 
they are “representatives of” the Board.  Appellants’ Br. 24.  But because the Board itself 
does not enjoy rights under the Agreement, Ulsh and Bunch’s status as the Board’s 
putative representatives cannot confer standing.       


Fulton County v. Dominion Voting Systems Inc

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-24-2025 
Gerrett Conover v. United States Bureau of Prisons 
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Recommended Citation 
"Gerrett Conover v. United States Bureau of Prisons" (2025). 2025 Decisions. 520. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/520 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT  
_____________ 
No. 24-1081 
_____________ 
 
GERRETT CONOVER, 
Appellant 
 
v.  
 
UNITED STATES BUREAU OF PRISONS; WARDEN ALLENWOOD FCI 
____________ 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. No. 3:22-cv-00826) 
District Judge:  Honorable Malachy E. Mannion 
____________ 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
June 12, 2025 
___________ 
Before:  CHAGARES, Chief Judge, PORTER and AMBRO, Circuit Judges 
 
(Opinion filed: June 24, 2025 ) 
____________ 
 
OPINION 
____________ 
 
 
 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not 
constitute binding precedent. 
2 
CHAGARES, Chief Judge. 
 Gerrett Conover is currently serving concurrent sentences, one imposed by the 
United States District Court for the Northern District of New York and the other by the 
United States District Court for the District of New Jersey, following his convictions of 
two child pornography offenses.  He filed a petition for a writ of habeas corpus in the 
United States District Court for the Middle District of Pennsylvania, asserting that the 
Bureau of Prisons (“BOP”) failed to credit him for time served in custody after the 
imposition of his sentence in the Northern District of New York but before the imposition 
of his sentence in the District of New Jersey.  The District Court denied the petition.  
Because the BOP did not fail to award Conover service credit to which he was entitled, 
we will affirm the District Court’s order denying relief.   
I. 
Federal agents arrested Conover in Ogdensburg, New York, on September 16, 
2012, after discovering child pornography on his computer during an inspection at a port 
of entry between the United States and Canada.  Conover was charged the following day 
in the Northern District of New York with possession of child pornography in violation 
of 18 U.S.C. § 2252A(a)(5)(B).  He was released on bond on September 18, 2012.  
Conover was arrested again on September 20, 2012, and charged in the District of New 
Jersey with distribution of child pornography in violation of 18 U.S.C. § 2522(a)(2)(A).  
He pled guilty to both charges.     
On November 7, 2014, Conover was sentenced in the United States District Court 
for the Northern District of New York to 97 months of imprisonment.  He was sentenced 
3 
in United States District Court for the District of New Jersey on October 8, 2015, to 240 
months of imprisonment, concurrent with his other sentence.  The BOP computed 
Conover’s term of imprisonment by aggregating the two sentences.  The BOP awarded 
credit for the time Conover spent in custody between his arrest on September 16, 2012, 
and the imposition of his sentence in the Northern District of New York on November 7, 
2014.  The BOP did not, however, subtract from Conover’s aggregated sentence the 
eleven months he spent in custody after the imposition of the sentence in the Northern 
District of New York but before the imposition of his sentence in the District of New 
Jersey.   
Conover filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in 
which he asserted, among other things, that the BOP was obligated under 18 U.S.C. 
§ 3585(b) to credit him for the eleven months he spent in custody between the imposition 
of his two sentences.  The District Court denied the petition, and Conover timely filed 
this appeal.   
II.1 
We exercise plenary review over questions of statutory interpretation.  Delaware 
County v. Fed. Hous. Fin. Agency, 747 F.3d 215, 220 (3d Cir. 2014).  Under 18 U.S.C. 
§ 3585(b)(2), a defendant serving a sentence of imprisonment “shall be given credit 
toward the service of a term of imprisonment for any time he has spent in official 
detention prior to the date the sentence commences . . . as a result of any other charge for 
 
1 The District Court had jurisdiction over Conover’s petition under 28 U.S.C. § 2241.  
Our Court has appellate jurisdiction under 28 U.S.C. § 1291. 
4 
which the defendant was arrested after the commission of the offense for which the 
sentence was imposed . . . that has not been credited against another sentence.”   
Conover argues that the District Court erred in denying the petition because the 
eleven months that he spent in custody between the imposition of his two sentences is, 
with respect to the later-imposed 240-month sentence, time “spent in official detention 
prior to the date the sentence commences . . . that has not been credited against another 
sentence.”  18 U.S.C. § 3585(b).  He asserts, therefore, that the BOP erred in declining to 
award him credit for this custodial time.  We disagree.  The BOP must award credit for 
custodial time only if that time “has not been credited against another sentence.”  Id.; 
accord Vega v. United States, 493 F.3d 310, 314 (3d Cir. 2007) (holding that time 
“allotted . . . to [a petitioner’s] state parole violation term . . . is not available to be 
credited toward his federal sentence”).  But the eleven months Conover spent in custody 
between the imposition of his two sentences is “credited against another sentence” 
because that time is credited against his 97-month sentence.  18 U.S.C. § 3585(b).  The 
BOP’s determination that no credit for this eleven-month period was available is 
consistent with applicable law.  
III. 
For the foregoing reasons, we will affirm the District Court’s order denying 
Conover’s petition for a writ of habeas corpus.   


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