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BOYKIN v. BLOOMSBURG UNIV. OF PENNSYLVANIA

July 7, 1995

MICHAEL R. BOYKIN, et al., Plaintiffs
v.
BLOOMSBURG UNIVERSITY OF PENNSYLVANIA, et al., Defendants



The opinion of the court was delivered by: MALCOLM MUIR

 July 7, 1995

 MUIR, District Judge.

 I. Introduction and Background.

 This order relates only to Defendant William S. Kreisher, Esquire, District Attorney of Columbia County. Kreisher is being sued individually and in his official capacity as the District Attorney of Columbia County, Pennsylvania.

 On March 2, 1994, Plaintiffs Michael R. Boykin, Margaret L. Boykin, and Aaron M. Boykin filed a complaint in this Court against several Defendants. On May 9, 1994, the Boykins filed a virtually identical complaint based upon the same facts in Court of Common Pleas of Columbia County, Pennsylvania, which was removed to this Court on May 31, 1994. The two cases were consolidated on June 15, 1994.

 On July 14, 1994, we issued an order in which we granted Kreisher's motion to dismiss as to Counts III, IV, and V of the Boykins' complaint.

 On January 31, 1995, Kreisher filed a motion for summary judgment and a brief in support thereof. On February 2, 1995, Kreisher filed a statement of material facts and his own affidavit in support of his motion for summary judgment.

 On February 22, 1995, we issued an order in which we granted the Boykins' motion for a substantial extension of time, until March 24, 1995, to respond to Kreisher's motion for summary judgment as well as other motions for summary judgment filed by other Defendants in this case. The Boykins subsequently obtained an additional 3-week enlargement of time to respond to Kreisher's motion for summary judgment as a result of a then pending motion for disqualification of the undersigned judge filed in this case. Similarly, in Order No. 2 of April 19, 1995, we reluctantly allowed the Boykins an additional 15 days to respond to Kreisher's motion for summary judgment. In our order of April 19, 1995, we stated that "the Boykins shall receive no further extensions of time absent exigent circumstances." In order No. 2 of May 3, 1995, we allowed the Boykins an additional extension of time within which to respond to Kreisher's motion for summary judgment. Furthermore, on May 10, 1995, we granted the Boykins' "Emergency Motion For Brief Extension Of Time," until May 18, 1995, within which to file a response to Kreisher's motion for summary judgment.

 On May 18, 1995, the Boykins finally filed a brief in opposition to Kreisher's motion for summary judgment and a so-called response to Kreisher's statement of material facts. The Boykins also filed individual declarations of Michael Boykin, Margaret Boykin, Howard B. Johnson, and George Mitchell as well as a binder of documents comprised of miscellaneous documents following a declaration of George Mitchell with the caption on it of the case of Mitchell vs. Bloomsburg University, et. al, 93-1870 (M.D. Pa.) (McClure J.).

 The individual declarations of Michael Boykin, Margaret Boykin, and George Mitchell were defective because they were not sworn to and were unsigned.

 On May 22, 1995, we issued an order in which we deemed withdrawn pursuant to Local Rule 7.5 the Boykins' "Motion To Supplement Record" because they had failed to file a brief in support of their motion.

 On May 26, 1995, the Boykins filed a "Motion To Lodge Documents." In this motion, the Boykins requested leave to file corrected declarations as well additional documents in opposition to the Defendants' motions for summary judgment. Along with the motion, the Boykins filed corrected declarations of Michael Boykin, Margaret Boykin, George Mitchell, and Howard Johnson. In addition to the declarations, the Boykins also filed two volumes of other documents which were not included in their original responses. Volume I is comprised largely of transcripts relating to the criminal proceedings against Michael Boykin from late 1992 and 1993. Volume II contains nothing but 1992 and 1993 newspaper articles and a portion of one transcript from the 1993 trial of Michael Boykin.

 In order number 1 of May 30, 1995, we required the parties to brief the issue raised in the Boykins' motion to lodge documents. On June 5, 1995, the Boykins filed a brief in support of their motion to lodge documents. On June 7, 1995, the Commonwealth Defendants filed a brief in opposition to the Boykins' motion to lodge documents. On June 12, 1995, we denied the Boykins' emergency motion filed on the date their reply brief was due for an extension of time within which to file a reply brief. On June 13, 1995, we issued an order in which we granted the Boykins' motion to lodge documents. Therefore, Kreisher's motion for summary judgment became ripe for disposition on June 13, 1995.

 The individual declarations of Michael Boykin, Margaret Boykin and George Mitchell are based largely on speculation, hearsay, and otherwise inadmissible opinion. The declaration of George Mitchell largely does not even concern the Boykins. Where it does, it expresses Mitchell's opinions and speculation and fails adequately to provide a foundation for a number of his assertions. Moreover, George Mitchell's declaration does not even address the issues raised in this case. The individual declaration of Howard Johnson suffers from similar deficiencies and also bears no relation to the issues raised in this case.

 On February 2, 1995, Kreisher filed a statement of material facts in accordance with Local Rule 7.4. The Boykins' response to Kreisher's statement of material facts is hopelessly defective. This Court's orders of April 19, 1995, May 3, 1995, and May 10, 1995, granting the Boykins' last three motions for extensions of time, each provided that the Boykins' response to the Defendants' statements of material facts comply strictly with Local Rule 7.4.

 Local Rule 7.4 provides:

 
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.
 
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.

 The Court of Appeals for the Third Circuit has held that the non-moving party is obligated under these rules to identify those facts of record which would contradict the facts identified by the movant. A district court judge is not required to search through the record for facts which might support the respondents' claim. Allowing the non-moving party to rely on denials of those facts by referring to unidentified evidence provides an unworkable and illogical approach contravening the directive of Rule 56(e) requiring the non-moving party to set forth specific facts showing that there is a genuine issue for trial. See Childers vs. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988).

 Despite these requirements, the Boykins' statement of material facts is largely unresponsive to Kreisher's statement, provides additional irrelevant information, and routinely fails to provide any citation to the record for any of the facts they do allege. Moreover, the Boykins do not provide affirmative evidence to support their contentions. The Boykins' response is filled with unsupported speculation and hearsay. As a result, the Boykins should be deemed to have admitted all of Kreisher's material facts. To adopt any other approach places an undue burden on the Court and defense counsel to examine each page of the Boykins' documentation in order to determine whether the Boykins have created any dispute as to any material facts. This function and duty is one which the Boykins' counsel is obligated to fulfill.

 Nevertheless, to the extent practicable, we did attempt to discern the Boykins' response to Kreisher's statement of material facts as well as search the record for ...


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