United States District Court, M.D. Pennsylvania
November 15, 2005.
SHARON L. MULLINS, DAVID KRAMER, and WILLIAM HESS, Plaintiffs,
RAYMOND A. SMITH, Defendant.
The opinion of the court was delivered by: A. CAPUTO, District Judge
Presently before the Court is Magistrate Judge Malachy E.
Mannion's Report and Recommendation (Doc. 70), Plaintiffs Sharon
L. Mullins, David Kramer and William Hess' Objections to the
Magistrate Judge's Report and Recommendation (Doc. 74) and
Defendant Raymond A. Smith's Response to Plaintiffs' Objections
to the Report and Recommendation (Doc. 77). Plaintiffs filed a
reply to Defendant's Response. (Doc. 78) Magistrate Judge Mannion
recommended that the Court grant Defendant's motion for summary
judgment. For the reasons set forth below, the Court will reject
the Report and Recommendation, and the case will be remanded to
Magistrate Judge Mannion for further consideration of Defendant's
motion for summary judgment consistent with this opinion.
Magistrate Judge Mannion's Report and Recommendation contains a
full and complete recitation of the facts concerning the instant
matter. (Doc. 70) Consequently, the Court will only briefly set
forth those facts salient to the resolution of Plaintiffs' objections to the Report and Recommendation.
On January 30, 2004, Magistrate Judge Mannion issued a Report
and Recommendation. (Doc. 65) In his Report and Recommendation,
Magistrate Judge Mannion proposed that Defendant's motion for
summary judgment be granted. Id. He opined that Defendant's
motion for summary judgment should be granted as Plaintiffs
failed to show that their speech was chilled or intimidated by
Defendant's retaliatory actions. No objections were filed and on
March 5, 2004, the Court issued an order adopting the Report and
Recommendation. (Doc. 66) On March 11, 2005, the Court was
notified of Plaintiffs' non-receipt of the Report and
Recommendation (Doc. 73) and consequently, the Court vacated its
previous order adopting the Report and Recommendation (Doc.68).
Magistrate Judge Mannion's Report and Recommendation was reissued
and served to Plaintiffs. (Doc. 70) Plaintiffs filed timely
objections to which Defendant replied. In their objection,
Plaintiffs ask the Court not to grant Defendant's motion for
summary judgment. (Doc.74) The matter is fully briefed and ripe
STANDARD OF REVIEW
1. Magistrate Judge's Report and Recommendation
Where objections to the magistrate judge's report are filed,
the Court must conduct a de novo review of the contested
portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106
n. 3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(C)), provided
the objections are both timely and specific, Goney v. Clark,
749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review,
the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate
judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard,
829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo,
the statute permits the Court to rely on the recommendations of
the magistrate judge to the extent it deems proper. See
United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney,
749 F.2d at 7; Ball v. United States Parole Comm'n,
849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may
be reviewed at a standard determined by the district court. See
Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7.
At the very least, the Court should review uncontested portions
for clear error or manifest injustice. See, e.g., Cruz v.
Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
2. Summary Judgment
Summary judgment is appropriate if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." FED. R. CIV. P. 56 (c). A fact is
material if proof of its existence or non-existence might affect
the outcome of the suit under the applicable substantive law.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party
need only establish that it is entitled to judgment as a matter
of law. Where, however, there is a disputed issue of material
fact, summary judgment is appropriate only if the factual dispute
is not a genuine one. See id. at 248. An issue of material fact
is genuine if "a reasonable jury could return a verdict for the
nonmoving party." Id. Where there is a material fact in dispute, the moving party has
the initial burden of proving that (1) there is no genuine issue
of material fact; and (2) the moving party is entitled to
judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHUR.
MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed.
1983). The moving party may present its own evidence or, where
the nonmoving party has the burden of proof, simply point out to
the court that "the nonmoving party has failed to make a
sufficient showing of an essential element of her case." Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party, and the entire
record must be examined in the light most favorable to the
nonmoving party. See White v. Westinghouse Elec. Co.,
862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its
initial burden, the burden shifts to the nonmoving party to
either present affirmative evidence supporting its version of the
material facts or to refute the moving party's contention that
the facts entitle it to judgment as a matter of law. See
Anderson, 477 U.S. at 256-257.
The court need not accept mere conclusory allegations or
denials taken from the pleadings. See Schoch v. First Fidelity
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). In deciding a
motion for summary judgment, "the judge's function is not himself
to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial."
Anderson, 477 U.S. at 249.
Plaintiff's three objections to Magistrate Judge Mannion's
Report and Recommendation are as follows: (1) Plaintiffs met all three
elements required in a First Amendment retaliation claim; (2)
there is a genuine issue of material fact as to whether
Defendant's conduct chilled Plaintiffs' exercise of their
First Amendment rights and (3) Plaintiffs' request to submit additional
records to prove that Defendant's conduct chilled Plaintiffs'
exercise of their First Amendment rights. (Doc. 74 at 2.) Request
to supplement the record was denied by Judge Mannion on April 8,
2004. (Doc.76.) The Court will not decide on the remaining
issues, as the Court is rejecting the Magistrate Judge's opinion
and remanding the case for further consideration in accordance
with this opinion.
Plaintiffs allege that Defendant violated 42 U.S.C. § 1983,
which provides that:
Every person who, under color of any statute,
ordinance, regulation, custom or usage . . .
subjects, or causes to be subjected, any citizen of
the United States or other persons within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
In order to state a § 1983 claim, Plaintiffs need to show that:
(1) the conduct complained of deprived the plaintiff of rights,
privileges and immunities secured by the Constitution or laws of
the United States; and (2) the conduct was committed by a person
acting under color of state law. See Lugar v. Edmondson Oil
Co., 457 U.S. 922
, 923 (1982); Kost v. Kozakiewicz,
1 F.3d 176
, 184 (3d. Cir. 1993). Plaintiffs allege violation of the
First Amendment to the United States Constitution as the basis
for their § 1983 claim. The Court already ruled that Defendant
was acting under color of state law when he presided over the
November 15, 2000 public hearing (Doc. 39 at 8-9.) and when he
filed his defamation action (Id. at 7.). Hence, the only issue
before the Court is whether Magistrate Judge Mannion correctly considered Plaintiffs'
First Amendment retaliation claim.
Magistrate Judge Mannion recommended that Defendant's motion
for summary judgment should be granted because he agrees with
Defendant's argument that "[P]laintiffs were not deprived of
their right of free speech by the threat of, or filing of, a
defamation action." (Doc.70 at 8.) Magistrate Judge Mannion
relied on a First Circuit Court of Appeals case in requiring that
the Plaintiffs "must show that their `speech was in fact chilled
or intimidated' by the activities of the [D]efendant". Sullivan
v. Carrick, 888 F.2d 1, 4 (1st Cir. 1989). Consequently,
Magistrate Judge Mannion concluded that the Defendant's "activity
has not, stopped the [P]laintiffs from questioning his
activities, submitting press releases in which they criticize,
filing a state court malicious prosecution and federal civil
right suits against him" and hence, there was no actual harm or
real deprivation of Plaintiffs' First Amendment rights. (Doc. 70
at 16.) The Court finds that Magistrate Judge Mannion improperly
relied upon Sullivan.
"The Supreme Court has explicitly held that an individual has a
viable claim against the government when he is able to prove that
the government took action against him in retaliation for his
exercise of First Amendment Rights." Anderson v. Davila,
125 F.3d 148, 160 (3d Cir. 1997) (citations omitted). "To prevail on
a First Amendment retaliation claim, a plaintiff must prove that:
(1) he/she engaged in protected activity; (2) the government
responded with retaliation and (3) the protected activity was the
cause of the government's retaliation." Grimm v. Borough of
Norristown, 226 F. Supp. 2d 606, 636 (E.D. Pa 2002) (citations
omitted). Retaliation claims under the First Amendment generally fall
into two different categories: (1) claims dealing with conduct
interfering with access to courts and (2) claims dealing with
conduct that are in retaliation to protected First Amendment
activities. Id. at 637 (citations omitted). It has been
determined that for the latter line of cases, the additional
chilling requirements need not be met.
The rule in this [Third] Circuit appears to be that
in cases alleging interference with a person's right
of access to the courts, a plaintiff must allege that
the defendant's actions chilled the exercise of this
right, but that in cases alleging retaliation, a
plaintiff need not allege that defendant's conduct
had a chilling effect.
Id. (citing Anderson v. Davila, 125 F.3d 148
, 163 n. 15 (3d
Cir. 1997)). In so concluding, the District Court for the Eastern
District of Pennsylvania reasoned that Anderson spoke in
general terms with respect to the chilling effect requirement by
"draw[ing] a distinction between right of access cases and
retaliation cases generally, not between right of access cases
and retaliation cases where the protected activity is the filing
of a lawsuit specifically." Id. at n. 20. Hence, Plaintiffs in
their retaliation case do not have to show that the Defendant's
threats of, and filing of, the defamation action actually chilled
Plaintiffs from exercising their First Amendment rights.
Furthermore, only the protected activity element of the three
part test is a question of law. Id. The retaliation and
causation requirements "present questions for the fact finder and
are not subject to review" at this stage. Baldassare v. New
Jersey, 250 F.3d 188
, 195 (3d Cir. 2001).
Magistrate Judge Mannion, in his Report and Recommendation,
based his recommendation to grant Defendant's motion for summary
judgment on the finding that "[a] review of the record, as a
whole, does not indicate that the plaintiffs' First Amendment rights have in fact been chilled or intimidated in
anyway by the purported misdeeds of [Defendant]." (Doc.70 at 16.)
The Plaintiffs, however, need not prove a chilling effect in
their retaliation claim.
The Court finds that Magistrate Judge Mannion's Report and
Recommendation was based on an incorrect reliance on Sullivan.
After consideration of Magistrate Judge Mannion's Report and
Recommendation, the Court will reject the Report and
Recommendation. The case will be remanded back to Magistrate
Judge Mannion for full consideration of Defendant's motion for
summary judgment consistent with this opinion.
An appropriate Order follows. ORDER
NOW, this 15th day of November, 2005, upon review of
Magistrate Judge Malachy E. Mannion's Report and Recommendation
(Doc. 70) for clear error or manifest injustice, IT IS HEREBY
(1) The Report and Recommendation (Doc. 70) is
(2) The case is REMANDED to Magistrate Judge
Mannion for consideration of Defendant's motion for
summary judgment (Doc. 56) consistent with this
(3) The Clerk of the Court is directed to enter
judgment in accordance with the foregoing memorandum.
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