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Radich v. Goode

argued: February 2, 1989.

CHARLES RADICH AND HOWARD WALTON, APPELLANTS
v.
W. WILSON GOODE, JOHN E. FLAHERTY, HANDSEL B. MINYARD, JOHN M. MYERS, KEVIN TUCKER, RALPH TETI, JOHN DOE, RICHARD DOE, AND CITY OF PHILADELPHIA, APPELLEES



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civ. No. 87-7358.

Hutchinson, Scirica, and Nygaard, Circuit Judges.

Author: Nygaard

Opinion OF THE COURT

NYGAARD, Circuit Judge

Appellants, Charles Radich and Howard Walton, appeal from an order granting summary judgment against them in an action for damages under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 which alleged that they were arrested without probable cause in violation of their constitutional rights. Appellants essentially raise two issues: whether the district court granted summary judgment prematurely; and, whether the police officer had probable cause to arrest appellants for defiant trespass. Because we conclude that the record shows no dispute of any material facts, that appellants offer no valid reason why summary judgment should have been deferred, and that the arrests were upon probable cause, we will affirm.

I.

On January 23, 1987, Officer Mieklejohn arrested appellants for defiant trespass. Appellants, pro-life supporters who had been protesting on a public sidewalk, crossed onto a private parking lot to distribute pro-life literature and speak to individuals entering the Northeast Women's Center, Inc. (the Center), a clinic that performs abortions. The parking lot in question, which was delineated by a white line painted on the ground, was posted with a sign which stated that the lot was private property and that the owners denied permission for protesters to come onto the lot. Additionally, Officer Mieklejohn warned appellants that they would be arrested if they crossed onto the parking lot.

Appellant Radich first crossed the line and entered onto the parking lot as he went to his car located in a different parking lot. While he was returning, he approached within fifteen feet of the Center's entrance. At this point, Officer Mieklejohn, because protestors had invaded the Center in the past and because the parking lot owners did not want protestors on the parking lot, warned Radich that he would be arrested if he crossed onto the parking lot again. Within a short period of time, Radich crossed onto the parking lot and approached the clinic entrance. Officer Mieklejohn then arrested Radich for defiant trespass.

When Radich was arrested, appellant Walton, who had also been warned earlier to stay out, crossed the line and entered the lot and demanded to know why Radich was being arrested. Several times Officer Mieklejohn told Walton not to interfere with the arrest and to leave the property. After Walton refused to leave, the officer arrested him for defiant trespass. The charge against each appellant was dropped for lack of prosecution.

Before the arrests, Comly Road Associates, owners of the parking lot, told the city that they were not granting anyone permission to protest on their property. In turn, the City Solicitor's office advised the police department that "the subject property was private, and that since protestors had not been given permission to conduct protest activity thereon, the Department had the right to take appropriate action within their judgment to protect that private property." Affidavit of John Meyers. Then, Officer Mieklejohn's superiors in the police department told him that the parking lot was private property and that the owners had denied the protestors permission to protest on the lot. Affidavit of Harry Mieklejohn.

Appellants filed their complaint on November 17, 1987 alleging that appellees violated appellants' first, fourth, fifth, eight and fourteenth amendment rights, as well as a variety of pendent state claims. On February 17, 1988, the district court ordered discovery to close on March 22, 1988 and set trial for March 24, 1988. On February 22, 1988, appellees moved for summary judgment; on March 9, 1988, appellants responded. Apparently, the case was then suspended from March 30, 1988 until June 15, 1988 when the court issued an order reactivating it. Brief for Appellees at 3. On June 30, 1988, the district court extended the period for discovery until August 31, 1988 and set the trial for the first week of September. On July 6, 1988, both parties submitted supplemental memoranda on the summary judgment motion. On September 6, 1988, the district court granted appellees' motion for summary judgment and dismissed all pendent state claims without prejudice.

The district court granted summary judgment for all defendants on appellants' Section 1983 claim because it determined that Officer Mieklejohn had probable cause to arrest appellants.*fn1 The district court relied upon four facts to establish that Officer Mieklejohn had probable cause to arrest appellants for defiant trespass: (a) the sign at the border of the parking lot stated that protestors were not allowed to protest in the parking lot; (b) a line was painted which indicated where the private property began; (c) Officer Mieklejohn previously warned appellants that they were on private property and told them to leave or be arrested; and (d) appellants, in paragraphs 13 and 14 of their complaint, admitted that they were in the parking lot to pursue their protest activities.

II.

Appellants first argue that the district court committed reversible error in granting summary judgment before appellants were able to obtain answers to their interrogatories. Whether a district court prematurely grants summary judgment is reviewed for abuse of discretion. Dowling v. City of Philadelphia, 855 F.2d 136 (3d Cir. 1988).

The court must give a party opposing summary judgment an adequate opportunity to obtain discovery. Dowling, 855 F.2d at 139. Rule 56(f) of the Federal Rules of Civil Procedure gives the district court discretion to defer ruling on a summary judgment motion when a party opposing summary judgment files an affidavit indicating that it needs more discovery. Rule 56(f) provides,

(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

This circuit generally requires that a party file a Rule 56(f) affidavit in order to preserve the issue for appeal. Galgay v. Gil-Pre Corp., 864 F.2d 1018 (3d Cir. 1988); Dowling, 855 F.2d 136; Wisniewski v. Johns-Manville Corp., 812 F.2d 81 (3d Cir. 1987); Falcone v. Columbia Pictures Industries Inc., 805 F.2d 115 (3d Cir. 1986); Mid-South Grizzlies v. National Football League, 720 F.2d 772 (3d Cir. 1983), cert. denied, 467 U.S. 1215, 81 L. Ed. 2d 364, 104 S. Ct. 2657 (1984); but see, Sames v. Gable, 732 F.2d 49, 52 n. 3 (3d Cir. 1984) (court held it was error for district court to grant summary judgment when it knew discovery was still pending even though plaintiffs did not comply with Rule 56(f)). Beyond the procedural requirement of filing an affidavit, Rule 56(f) also requires that a party indicate to the district court its need for discovery, what material facts it hopes to uncover and why it has not previously discovered the information. Hancock Industries v. Schaeffer, 811 F.2d 225 (3d Cir. 1987); Koplove v. Ford Motor Co., 795 F.2d 15 (3d Cir. 1986).

Here, appellants did not file a Rule 56(f) affidavit. Appellants contend that their attorney's unverified memorandum opposing the motion for summary judgment complies with the Rule 56(f) affidavit requirement. It does not. Rule 56(f) clearly requires that an affidavit be filed. "The purpose of the affidavit is to ensure that the nonmoving party is invoking the protection of Rule 56(f) in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition." First Chicago International v. United Exchange Co., LTD, 267 U.S. App. D.C. 27, 836 F.2d 1375 (D.C.Cir. 1988) (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 298, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)). An unsworn memorandum opposing a party's motion for summary judgment is not an affidavit.

Appellants further argue that they essentially have complied with the remaining requirements of Rule 56(f) and thus we should overlook their failure to file an affidavit and reverse the district court's grant of summary judgment. The argument will not withstand close scrutiny.

Appellees filed their motion for summary judgment on February 22, 1988. Appellants answered the motion on March 9, 1988. In their unverified memorandum opposing the summary judgment motion they make the following contentions:

Municipal Defendants' Motion, however, in addition to being inappropriate on its merits, is premature. Plaintiffs have filed a set of interrogatories against Municipal Defendants which must be answered . . . evidence to be presented on behalf of plaintiffs is incomplete.

[All] of the facts are not in yet with reference to the policy underlying the decision of the police department to arrest plaintiffs. What is clear even from the affidavits attached to Municipal Defendants' Motion is that such a policy existed. It is argued by plaintiffs in consideration of the affidavit of Charles Volz, Esquire, attached hereto and made part hereof as Exhibit "B" that a clear and direct policy of Municipal Defendants to abort the constitutional guarantees of plaintiffs was in existence and was continually enforced and to this day is being enforced by the Municipal Defendants . . . The evidence to be presented by plaintiffs would establish that they were arrested in the parking lot of this shopping center merely because they were known by police to be individuals involved in "pro life" activities.

Appendix at 131a-134a.

Appellants' claim of outstanding interrogatories may have been true in March, however, summary judgment was granted in September, and, in the interim, appellants failed to explain whether the interrogatories were still outstanding or why they had been unable to get the interrogatories answered, if that was the case. In fact, in mid-June, 1988, the district court requested the parties to update their research on their respective summary judgment motions. In late June, the district court extended the deadline for discovery until August 31, 1988. On July 6, 1988, appellants responded with their supplemental brief. Nowhere in this supplemental brief do appellants reassert any need for discovery, even though four months had elapsed since they first claimed that interrogatories were unanswered. Further, they did not file a motion to compel answers to their interrogatories; nor were there any other motions by either party which would alert the district court that the interrogatories remained unanswered.

Additionally, the statements made by appellants in their memorandum submitted in March state neither the content of the unanswered interrogatories nor "what particular information is sought, [and] how, if uncovered, it would preclude summary judgment." Dowling, 855 F.2d at 140. Furthermore, the statements in the memorandum were not made by a witness or other affiant, but in the course of advocacy by appellant's attorney. We cannot diminish the value of an affidavit by permitting an attorney's unsworn statement to replace it. The adversary system recognizes the right and practice of attorneys to take adversarial license with evidence and argue it as fact. It does not recognize argument as a surrogate for either evidence or fact. Thus, the statement is lacking both in substance, and in any indicia of evidentiary reliability contemplated by the requirements of Rule 56.

In light of appellants' failure to comply with Rule 56(f), we conclude that the district court did not abuse its discretion in granting summary judgment when it did.

III.

Appellants next argue that the district court erred in granting summary judgment for appellees based on its conclusion that the officers had probable cause to arrest appellants. Our ...


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