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DONALDSON v. MUGAVERO

February 26, 2004.

KENNETH DONALDSON, Plaintiff,
v.
SCOTT MUGAVERO, Defendant



The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge

OPINION

This matter is before the court on Plaintiff's Motion for Summary Judgment, which motion was filed October 28, 2003, and Agent Mugavero's Cross-Motion for Summary Judgment and Response to Plaintiff's Motion for Summary Judgment, which cross-motion was filed December 19, 2003.

  For the reasons expressed below, we conclude that defendant is entitled to qualified immunity from plaintiff's Page 2 unlawful arrest claim as a matter of law. Therefore, we grant defendant's cross-motion, deny as moot plaintiff's motion, and enter judgment in favor of defendant.

  PROCEDURAL BACKGROUND

  This civil action arises from plaintiff's arrest by defendant on September 19, 2002 for technical parole violations. On February 28, 2003, plaintiff filed a Complaint against defendant alleging civil liability for unlawful arrest. By Order dated September 3, 2003 this court dismissed all claims alleged against defendant in his official capacity and allowed defendant the opportunity to re-raise the issue of qualified immunity on summary judgment.

  On October 28, 2003, plaintiff moved for summary judgment and on December 19, 2003, defendant filed a cross-motion for summary judgment. The parties agree that no dispute exists as to any material fact and they now seek resolution as a matter of law of the issue of the defense of qualified immunity.

  For the reasons which follow, we now grant defendant's cross-motion for summary judgment and deny as moot plaintiff's motion. Page 3

  STANDARD FOR SUMMARY JUDGMENT

  Rule 56(c) of the Federal Rules of Civil Procedure provides that judgment shall be rendered where it is shown that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

  Fed.R.Civ.P. 56(c). Where a moving defendant does not bear the burden of persuasion at trial, he need only point out that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 275 (1986).

  FINDINGS OF FACT

  Based upon the pleadings, record papers, depositions, declarations and exhibits of the parties, the undersigned makes the following findings of fact:

  1. Plaintiff Kenneth Donaldson was convicted of possession of a controlled substance*fn1 in the Court of Common Pleas of Lehigh County, Pennsylvania on September 19, 2000.*fn2

  2. On October 31, 2000, plaintiff was sentenced to Page 4 serve not less than twelve, nor more than thirty-six, months in ...


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