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Heverly v. Simcox

October 11, 2006


The opinion of the court was delivered by: John E. Jones III United States District Judge


Judge Jones

Pending before the Court is Defendant Steve Simcox's ("Defendant Simcox") Motion for Partial Summary Judgment and Trooper Timothy Eiler's ("Defendant Eiler") Motion for Summary Judgment ("the Motion")(doc. 20) filed on August 7, 2006.

Federal question jurisdiction is proper pursuant to 28 U.S.C. § 1331. Pendent jurisdiction over Pennsylvania state law claims is proper pursuant to 28 U.S.C. § 1367(c). For the reasons that follow, the Motion will be granted.


On July 7, 2005, the Plaintiffs Deborah K. Heverly ("Heverly") and John Simcox ("Plaintiff Simcox") filed a complaint in the United States District Court for the Middle District of Pennsylvania against the above-referenced Defendants. (Rec. Doc. 1). On September 14, 2005, the Defendants answered the complaint. (Rec. Doc. 7).

In Count One of the complaint, Heverly claims the Defendants violated her rights under the Fourth Amendment to the United States Constitution. Heverly also asserts supplemental state claims of assault, intentional infliction of emotional distress, and malicious prosecution. Count Two of the complaint pertains to Plaintiff Simcox's claims, which mirror Heverly's exact claims.

On August 7, 2006, the Defendants filed the instant Motion (doc. 20) with supporting brief and statement of facts. (Rec. Docs. 21 and 22). On August 29, 2006, Plaintiffs filed a brief in opposition to the Motion with counterstatement of material facts. (Rec. Docs. 27 and 28). On September 12, 2006, the Defendants filed a reply brief. Accordingly, the Motion has been fully briefed and is therefore ripe for our review.


Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED .R. CIV. .P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.

Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23.

It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations omitted).

Still, "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, 247-48 (1986)(emphasis in original). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.


Plaintiffs Heverly and Simcox are brother and sister residing in Mill Hall, Pennsylvania. (Rec. Doc. 22 at ¶1).*fn1 The Plaintiffs are related to the Defendant Simcox as the Defendant Simcox is the son of the Plaintiffs' father's cousin. (Rec. Doc. 22 at ¶2). Defendant Simcox is a deputy for the Pennsylvania Game Commission. (Rec. Doc. 22 at ¶3). There has been ongoing animosity between the Plaintiffs' family and Defendant Simcox's family concerning a property line the two families share. (Rec. Doc. 22 at ¶4). Plaintiffs assert that it is their theory that this animosity resulted in Defendant Simcox's actions that form the basis of the instant action. (Rec. Doc. 28 at ¶4).

On or about October 15, 2003, Plaintiff Simcox was alone in a tree stand bow hunting when a buck approximately forty yards away came towards his position. (Rec. Doc. 22 at ¶5). Defendant Simcox, wearing an orange vest and regular clothing, was in the area and located a distance away from Plaintiff Simcox. (Rec. Doc. 22 at ¶6). Plaintiff Simcox believes that Defendant Simcox may have been squirrel hunting at that time. (Rec. Doc. 22 at ¶7). Although the two did not speak to each other or make eye contact, Defendant Simcox was looking in Plaintiff Simcox's direction and Defendant Simcox shot his shotgun in the air three times, which scared away the buck. (Rec. Doc. 22 at ¶8-9).

On November 16, 2003, the Plaintiffs along with other family members were posting signs on a new property line which Plaintiffs' family claimed they owned. (Rec. Doc. 22 at ¶10). Plaintiffs allege that a recent survey had identify the property line as theirs. (Rec. Doc. 28 at ¶10). Plaintiffs were aware that the property boundary was in dispute because at the time of the survey, Defendant Simcox and his family confronted surveyors and told them to leave their property. (Rec. Doc. 22 at ¶11).

The families confronted each other during the sign posting, which escalated into an argument and shouting match, with everyone but Heverly's seven year old son cursing at each other. (Rec. Doc. 22 at ¶12). During the argument, Defendant Simcox did not show his badge or threaten to issue any citations. (Rec. Doc. 22 at ¶13). Defendant Simcox, who was wearing regular clothing, warned Plaintiff Simcox to "watch his back" and Plaintiff Simcox asked him, "All right, Mr. Deputy Game Commissioner, is that a ...

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