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MULLINS v. SMITH

United States District Court, M.D. Pennsylvania


November 15, 2005.

SHARON L. MULLINS, DAVID KRAMER, and WILLIAM HESS, Plaintiffs,
v.
RAYMOND A. SMITH, Defendant.

The opinion of the court was delivered by: A. CAPUTO, District Judge

MEMORANDUM

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.

BACKGROUND

  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 for disposition.

  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.

  DISCUSSION

  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 injured.
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.

  CONCLUSION

  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 ORDERED that:

(1) The Report and Recommendation (Doc. 70) is REJECTED.
(2) The case is REMANDED to Magistrate Judge Mannion for consideration of Defendant's motion for summary judgment (Doc. 56) consistent with this opinion.
(3) The Clerk of the Court is directed to enter judgment in accordance with the foregoing memorandum.
20051115

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