United States District Court, M.D. Pennsylvania
November 18, 2005.
ROBERT HUGHES, Plaintiff,
CORPORAL JOSEPH SARKIS, sued in his individual capacity, Defendant.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM and ORDER
Before the Court is Corporal Joseph Sarkis' "(Defendant")
Motion for Summary Judgment, (Doc. 46), against Robert Hughes
("Plaintiff"). In his Amended Complaint, (Doc. 8), Plaintiff
seeks relief pursuant to 42 U.S.C. § 1983.
Plaintiff alleges that Defendant violated his First and
Fourteenth Amendment rights under the United States Constitution.
The Complaint was initially filed by Plaintiff in Pennsylvania
state court and was removed by the original Defendants to Federal
After the case was removed to Federal Court by Defendants,
Plaintiff filed a First Amended Complaint alleging the same
violations. (Doc. 8). On September 8, 2004, this Court granted Defendants' Motion to Dismiss the First Amended Complaint based
on Federal Rule of Civil Procedure 12(b)(6). (Doc. 23). In
dismissing Plaintiff's First Amended Complaint, this Court held
that the dismissal of the Plaintiff's first Complaint,
(previously filed in the federal Court in Hughes I), precluded
Plaintiff from filing the same action in the state court.
Plaintiff moved for Reconsideration on September 21, 2004.
(Doc. 35). The Court held oral argument on Wednesday, January 12,
2005. On January 28, 2005, this Court granted Plaintiff's Motion
for Reconsideration. (Doc. 34). On September 16, 2005, Defendant
filed this Motion for Summary Judgement. (Doc. 46).
The motion has been fully briefed and is now ripe for
disposition. Based on the discussion below, Defendant's Motion
for Summary Judgment is GRANTED.
I. FACTUAL BACKGROUND*fn2
In 1998, Plaintiff complained at an Old Forge Borough Council
public meeting about unlawful activities conducted by certain
officials. Specifically, he argued that Old Forge was running
unlicensed, unregistered vehicles as officially marked police
cruisers. (Doc. 7, at ¶ 11).
In May 1998, Plaintiff obtained copies of records from the
Pennsylvania Department of Transportation that he said confirmed Old Forge was running unlicenced, unregistered vehicles as
officially marked police cruisers. These documents were brought
to the attention of the Old Forge Borough Council at a public
meeting. Shortly thereafter, Plaintiff was arrested and charged
with five (5) counts of violating 18 Pa.C.S. § 4911(a)(1) for
tampering with public records or information. The charges were
subsequently dropped by the District Attorney. (Id. at ¶¶
In June of 1998, Hughes was a candidate for the Old Forge
Borough Council. He campaigned to "clean up Old Forge from the
prevalent nude bars, escort and massage establishments that were
preying on the community." (Id. at ¶ 16). He spoke out against
these clubs and complained that some were not zoned properly.
(Id. at ¶¶ 17-19). As a result, Old Forge shut down one of the
clubs. (Id. at ¶ 17).
Soon thereafter, Plaintiff was charged with the rape of Tara
Blumenfeld ("Blumenfeld"), a "nude dancer and pornographic
model." Hughes asserts that Avvisato and Defendant maliciously
and vindictively conspired to fabricate these charges which were
eventually dismissed. (Id. at ¶¶ 20-22). Plaintiff argues that
"Defendants knew or should have known there was no probable cause
to bring any of the charges against Hughes," nevertheless, they
brought these charges in retaliation against Hughes for
exercising his First Amendment rights. (Id. at ¶¶ 23-24).
Additionally, Plaintiff alleges that Avvisato and Defendant conspired with Detective Joseph Jordan and Assistant District
Attorney Eugene Talerico of the Lackawanna County District
Attorney's Office to conduct illegal wire taps of conversations
between Plaintiff and certain confidential informants. (Id. at
¶ 25). According to Plaintiff, this amounted to a violation of
Pennsylvania law, a violation of Hughes's First and
Fourth Amendment rights, and subjected Hughes to vindictive prosecution.
Also, Plaintiff asserts that Avvisato and Defendant conspired
with Wendy Maopolski, a Scranton Tribune reporter, in an effort
to slander and defame Hughes through published articles for the
purpose of interfering with his campaign for public office.
(Id. at ¶ 26).
II. PROCEDURAL BACKGROUND
On April 26, 2004, Plaintiff filed a § 1983 claim in the Court
of Common Pleas for Lackawanna County. The original Defendants
removed the action to this Court.*fn3
On June 18, and again on June 30, 2004, the original Defendants
sought to dismiss the Complaint on preclusion grounds based on
our decision in Hughes I.*fn4 (Docs. 3 & 6). On July 7, 2004, Plaintiff filed an Amended Complaint. (Doc. 8). On
September 8, 2004, this Court denied the Rule 19 Motion to
Dismiss, but granted the Rule 12(b)(6) Motion to Dismiss. (Doc.
On September 21, 2004, Plaintiff filed his Motion for
Reconsideration. (Doc. 24).
This Court held oral argument on Wednesday, January 12, 2005.
On January 28, 2005, this Court granted Plaintiff's Motion for
Reconsideration and ordered that the case be reopened. (Doc. 34).
On September 16, 2005, Defendant Sarkis filed the instant
Motion for Summary Judgment. (Doc. 46).
Defendant raises five issues in his Motion for Summary
Judgment. (Doc. 46). However, in Plaintiff's brief in opposition
to Defendant's Motion for Summary Judgment, Plaintiff concedes
that his Fourth Amendment claims are not viable in this action.
(Doc. 52, ¶ 23). Because Plaintiff concedes that his
Fourth Amendment claims should be dismissed, we will not discuss them
here. Therefore, the only remaining issues before this Court are
Plaintiff's conspiracy and First Amendment claims and the
qualified immunity defense raised by Defendant.*fn5 1. Summary Judgment Standard
In our analysis of this matter we keep in mind the various
cases that direct us regarding summary judgment. A motion for
summary judgment can be a very powerful motion. It is a legal
method of totally resolving a case without a trial based on a
review of pleadings and submissions of the parties. Granting
summary judgment is appropriate in cases where there are no
significant facts in dispute. Because of the finality of granting
a summary judgment motion, we must carefully examine the case and
supporting documents along with the submissions from the
Plaintiff who hopes to keep his case alive. Federal Rule 56 is a
mechanism for "assess[ing] the proof in order to see whether
there is a genuine need for trial." Fed.R.Civ.P. 56(e) advisory
committee's notes (amended 1963).
Summary judgment is somewhat controversial and can be seen as
upsetting the precarious balance between expediency and the
preservation of our Seventh Amendment*fn6 right to jury
trial. Thus, we are vigilant and careful not to use it to
preclude a party's right to trial or as a vehicle to simply move
the case more quickly through the judicial system.
We follow considerable guidance in determining whether summary judgment should be granted. Summary judgment is proper "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 judgment as a matter of law."
See Knabe v. Boury, 114 F.3d 407, 410 n. 4 (3d Cir. 1997)
(citing Fed.R.Civ.P. 56(c)). "[T]his standard provides that the
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no
genuine issue of material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-8, 106 S.Ct. 2505 (1986) (emphasis in
These rules make it clear that in order for a moving party to
prevail on a motion for summary judgment, the party must show two
things: (a) that there is no genuine issue as to any material
fact, and (b) that the party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(c). This instructs us that a fact is
"material" if proof of its existence or nonexistence would effect
the outcome of the lawsuit under the law applicable to the case.
Id. at 248; Levendos v. Stern Entertainment Inc.,
860 F.2d 1227, 1233 (3d Cir. 1988). We are further instructed that an
issue of material fact is "genuine" if the evidence is such that
a reasonable jury might return a verdict for the non-moving
party. Anderson, 477 U.S. at 257; Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348 (1986); Hankins v. Temple University,
829 F.2d 437, 440 (3d Cir. 1987); Equimark Commercial Finance
Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d
Under this regimen that we follow, the Court is required to
view the evidence in the light most favorable to the non-moving
party. Consistent with this principle, the non-movant's evidence
must be accepted as true and all reasonable inferences must be
drawn in the non-movant's favor. J.F. Feeser, Inc. v.
Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990).
However, the non-moving party may not rest on the bare
allegations contained in his or her pleadings.
The non-moving party is required by Federal Rule of Civil
Procedure 56(e)*fn7 to go beyond the pleadings by way of
affidavits, depositions, answers to interrogatories or the like
in order to demonstrate specific material facts which give rise
to a genuine issue. Celotex Corporation v. Catrett,
477 U.S. 317, 324, 106 S.Ct. 2548 (1986). When Rule 56(e) shifts the
burden of proof to the non-moving party, that party must produce
evidence to show the existence of every element essential to its case which it bears
the burden of proving at trial. Equimark Commercial Finance Co.
v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir.
But when a full review of documents submitted to the Court
(such as depositions of the parties in this case) clearly
demonstrates the Plaintiffs claims are based merely on
speculation and conjecture, there is no need for a trial and the
parties should be spared the time and expense of further
2. Is Defendant Entitled to Judgment As a Matter of Law on
Plaintiff's Civil Conspiracy Claim?
Defendant argues that Plaintiff makes only conclusory
statements regarding Defendant's involvement in the alleged
conspiracy against him, (Doc. 47 at ¶ 26), and has failed to set
forth the necessary elements for a successful conspiracy charge.
Defendant's account of Plaintiff's conspiracy allegations is
accurate. Even giving Plaintiff every possible benefit of the
doubt does not save his claim. His conspiracy argument remains
incoherent and more importantly, insufficient.
A successful conspiracy claim requires a plaintiff to show (1)
a conspiracy that the defendant had an agreement with at least
one other person and anticipated or caused something to be done
in furtherance of the agreement to violate plaintiff's civil
rights; (2) that the agreement was to deprive plaintiff of a
protected right; (3) an act in furtherance of the conspiracy; and
(4) an injury to person or property or deprivation of rights. Griffin
v. Breckenridge, 403 U.S. 88, 103-104 (1971); United
Brotherhood of Carpenters and Joinders of America, Local 610,
AFL-CIO v. Scott, 463 U.S. 825, 828-829 (1983).
A conspiracy claim requires a plaintiff to plead with some
degree of detail. In the Third Circuit, a "mere general
allegation of conspiracy is insufficient." Kalmanovitz v.
G.Heileman Brewing Co., 595 F.Supp. 1385, 1400 (D.Del. 1984).
"Only allegations of conspiracy which are particularized, such as
those addressing the period of the conspiracy, the object of the
conspiracy, and certain actions of the alleged conspirators taken
to achieve that purpose, will be deemed sufficient."
Kalmanovitz, supra, 595 F.Supp. at 1401. Here, Defendant argues
that Plaintiff fails to allege who was involved in the
conspiracy, when it occurred, and the actions the alleged
conspirators took as steps in achieving that purpose. (Doc. 47 at
A careful review of Plaintiff's deposition does little to
illuminate any specific allegations against Defendant.
At Plaintiff's deposition, the following dialogue took place
between Defense counsel and Plaintiff:
"Q: You say again defendants plural engaged in the
punishment of Hughes because he engaged in protected
speech. What conduct did Corporal Sarkis engage in?
A: What conduct did he engage in?
Q: Yes. A: The conspiracy with Avvisato.
Q: And your evidence of a conspiracy with Avvisato is
A: Because I can't understand that if a person brings
documents to City Council and shows that the cars are
illegal, in other words, City Council should
recommend that person for doing them a favor, yet in
the meantime the Chief runs to Corporal Sarkis and he
has me arrested on falsifying documents. That's
conspiracy in my book.
Q: Okay. So because Avvisato took information to
Sarkis there was a conspiracy?
A: Yeah, for the simple fact is even in Corporal
Sarkis' Complaint he said he appeared at Borough
Council meetings. So, in other words, Corporal Sarkis
knew I brought the documents to the Borough Council
meeting, so why did he proceed with the charges?"
Hughes' deposition, page 79, lines 4-11.
In his deposition, Plaintiff takes issue with Defendant's
presence at a court hearing relating to charges against Plaintiff
that were ultimately dropped by the district Attorney's office.
Plaintiff attributes Defendant's presence in court to the alleged
conspiracy. The following dialogue took place between defense
counsel and Plaintiff:
"Q: Was Corporal Sarkis at your hearing for the rape
A: Not for the preliminary hearing but for a deal
that was supposed to be made through Judge Corbett's
chambers, he was in the courtroom. I can't understand
Q: Because he didn't bring those charges?
A: No. He has nothing to do with them.
Q: His presence there suggested he at least knew
about the charges?
A: Yes. You want my inkling why he was there. Q: Sure.
A: To give information to Avvisato."
Hughes' deposition, pages 37, lines 16-25 & page
38, lines 1-3.
Even Plaintiff's own counsel can do little to explain the
conspiracy charge. In attempting to clarify the conspiracy charge
for Defense counsel, Plaintiff's counsel states that:
"[i]n terms of the issue of conspiracy the issue is
that Sarkis has what we understand to be a long
relationship with Chief Avvisato because Avvisato
used to be on the State Police . . . and further that
the reason Avvisato contacted Sarkis was because of
that long-term relationship . . . going after Mr.
Hughes for tampering with public records, which was
really a ruse to retaliate for having embarrassed
Avvisatto in front of the Council."
Hughes' deposition, page 41, lines 12-22.
The conspiracy allegations made by Plaintiff appear to be
speculative at best. Neither Plaintiff's own words in his
deposition, the explanation provided by Plaintiff's counsel, nor
the formal Complaint achieve the threshold necessary to bring a
viable conspiracy claim.
The submissions to the Court show that Avvisato, in his role as
Police Chief, requested the Pennsylvania State Police to
investigate Plaintiff's conduct in acquiring certain information
from the Pennsylvania state authorities regarding borough
vehicles. Defendant, Sarkis, a member of the Pennsylvania State
Police, was assigned to the investigation. There is nothing in
the record to indicate that Defendant, Sarkis conspired with
anyone or did anything beyond a normal investigation in preparing his report
and suggesting charges against the Plaintiff. The fact that the
Lackawanna County District Attorney determined at a later date
not to proceed against the Plaintiff with the charges is simply
irrelevant in this context.
The Plaintiffs conspiracy claim will be dismissed.
3. Is Defendant Entitled to Summary Judgment on the
First Amendment Retaliation Claim?
Plaintiff claims that Defendant filed criminal charges against
him in retaliation for reporting misconduct of the Old Forge
Borough police at an Old Forge Borough Council meeting. (Doc. 53
at ¶ 3).
To prevail on a retaliation claim, Plaintiff must first
establish that he engaged in an activity protected by the
First Amendment. Green v. Philadelphia Housing Authority,
105 F.3d 882, 885 (3d Cir. 1997). If Plaintiff establishes that he engaged
in a protected First Amendment activity, he must then show that
it was a substantial or motivating factor in the retaliatory
action. Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996).
The third prong of the three-part test allows defendants to
escape liability if they can demonstrate that they would have
acted the same even if Plaintiff had not spoken out. Baldassare
v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001). For purposes of
this motion, Defendant concedes that Plaintiff meets the first
prong of the three-part test because the proper registration of
police vehicles is a matter of public concern. (Doc. 47 at ¶ 10) However, Defendant argues
that Plaintiffs' retaliation claim fails in the second prong.
Defendant claims that Plaintiff's reporting at the Old Forge
Council meeting was not a substantial and motivating factor in
Defendant's decision to file charges against Plaintiff. (Id. at
¶ 11). Defendant did not attend the council meeting where
Plaintiff made his complaints and claims that he was unaware of
Plaintiff's complaints until he was assigned to investigate why
Plaintiff had the public records presented at that meeting. Id.
Therefore, Defendant claims that he filed the criminal complaint
because he believed Plaintiff had obtained the records illegally
and not in retaliation for Plaintiff's speech. Id.
Plaintiff argues that Defendant embarked on an "investigation"
of Plaintiff the day after he spoke at the Old Forge Council
meeting. (Doc.) Plaintiff alleges that Defendant's investigation
of him was the result of Defendant's mistaken belief that
Plaintiff did not legally obtain the documents from PennDOT.
Id. Plaintiff goes into great detail regarding the form used at
PennDOT to request the vehicle records and the various options
which were available on the Affidavit of Intended Use. (Doc. 52
at ¶ 13). It is undisputed that Plaintiff selected item number
one which states: "For use by any government agency, including
any court or law or law enforcement agency, in carrying out its
functions, or any private person or entity acting on behalf of a
Federal, State or local agency in carrying out its functions." (Id. at ¶ 35).
The parties disagree as to whether or not item number one on
the Affidavit accurately describes Plaintiff's purpose in
requesting the documents. Plaintiff contends that item number one
was appropriate because Plaintiff's purpose in requesting the
documents was for use by the Old Forge Borough, a local
governmental agency. (Id. at ¶ 36). Furthermore, Plaintiff
claims that his activity in obtaining the vehicle title histories
was "inextricably linked to his protected First Amendment
activity of seeking to redress his grievances with the Old Forge
Borough police." (Id. at ¶ 41).
Defendant cited Plaintiff's improper use of the Penn DOT form
in his affidavit of probable cause. (Doc. 47 at ¶ 13). According
to Defendant, Plaintiff was not carrying out the function of a
government agency when filling out the Penn DOT forms and
therefore violated Section 4911(a)(1) of the law for tampering
with public records. Id. Defendant claims that Plaintiff
knowingly made a false entry in, or false alteration of, a record
document of thing belonging to, or received or kept by, the
government for information or record, or required by law to be
kept by others for information of the government. Id.
The Defendant properly argues that the presence of probable
cause rebuts Plaintiff's claim that Defendant acted in
retaliation against Plaintiff. (Id. at ¶ 4). Thus, the question
for this Court is whether Plaintiff has presented any genuine
issue of material fact as to whether or not Defendant had probable cause.
Montgomery v. De Simone, 159 F.3d 120 (3d Cir. 1998).
Plaintiff fails to present any issues of material fact relating
to whether or not Defendant had probable cause. Rather, Plaintiff
makes broad accusations and repeatedly refers to what Defendant
"knew" about Plaintiff's actual intent in requesting the
documents. (Doc. 52) For example, Plaintiff claims that he
properly represented the purpose of requesting the Penn DOT
documents and that Defendant "knew this but deliberately
misstated Hughes' representation to PennDOT in his affidavit of
probable cause." (Id. at ¶ 37). These unsubstantiated
accusations made by Plaintiff fail to rise to the level necessary
to make out an issue of material fact.
Accordingly, it is impossible to say that there was any
chilling of Plaintiff's First Amendment rights in this case.
Plaintiff has failed to raise issues of material fact and we
agree with Defendant that Plaintiff's retaliation claim should be
4. Is Defendant Entitled to Summary Judgment Based on
Defendant claims he is entitled to qualified immunity from
Plaintiff's claims because of his position as a public official.
(Doc. 47 at ¶ 32.)
"[G]overnment officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This standard "gives ample room for
mistaken judgments by protecting all but the plainly incompetent
or those who knowingly violate the law." Hunter v. Brown,
502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).
The first inquiry is whether "the facts alleged, viewed in the
light most favorable to the party asserting the injury, show that
the officer's conduct violated a constitutional right." Curley
v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). If so, the next
inquiry is whether it "would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted."
Id. (quoting Saucier v. Katz, 533 U.S. 194, 202,
121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
In the instant case, Plaintiff has failed to show evidence of
wrongdoing by Defendant. Plaintiff addresses Defendant's claim of
qualified immunity only by stating that there are "ample triable
issues raised by the record concerning both Sarkis' claim for
qualified immunity and his contention that he was not involved in
a conspiracy to compel the Court to deny Sarkis' motion and set
this case for trial." (Doc. 52 at ¶ 48). Plaintiff's claims are
simply not enough to rebut Defendant's claim of qualified
immunity. Therefore, we agree with Defendant's claim that he
should be entitled to qualified immunity against Plaintiff's
claims. IV. CONCLUSION
Proceeding to jury trial is a course of action reserved for
cases which present triable issues. It would be improper to
burden a jury when there is no factual background to support the
claims brought by a potential plaintiff. Here, Plaintiff has
failed to present any viable claim that should proceed to trial.
Defendant's motion for Summary Judgment is GRANTED. An
appropriate Order follows. ORDER
Now, this 18th day of November, it is ordered as follows:
1. Defendant's Motion for Summary Judgment, (Doc.
46), is GRANTED; and
2. The clerk is directed to close this case.
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