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Olasz v. Welsh

June 25, 2007

RICHARD OLASZ, SR., PLAINTIFF,
v.
WILLIAM F. WELSH, FRANK DIENER AND DAVID HAINES, DEFENDANTS.



The opinion of the court was delivered by: Ambrose, Chief District Judge.

OPINION and ORDER OF COURT

SYNOPSIS

Pending is a Motion for Summary Judgment filed by Defendant, William Welsh. Plaintiff filed a Brief in Opposition (Docket No. 45). Based on my opinion set forth below, said Motion is granted in part and denied in part, as moot.

I. BACKGROUND

On March 27, 2006, Plaintiff, Richard Olasz, Sr., filed an Amended Complaint. (Docket No. 2). Therein, Plaintiff asserts violations of his First Amendment rights of freedom of speech and freedom of assembly against Defendants, William F. Welsh, Frank Diener, and David Haines. Id. Plaintiff voluntarily dismissed with prejudice Defendants, Mr. Diener and Mr. Haines, from the lawsuit. (Docket No. 30). As a result, the only Defendant remaining is Mr. Welsh, President of the West Mifflin Borough Council. (Docket No. 2, ¶8). Plaintiff is a member of the West Mifflin Borough Council.

With regard to Mr. Welsh, Plaintiff asserts that he "would regularly and wrongfully rule that Plaintiff was 'out of order'." (Docket No. 2, ¶14). Plaintiff was removed from Borough Council meetings by former police chief, Mr. Diener, at the direction of Mr. Welsh on two occasions: On March 16, 2004, and on May 18, 2004. Thereafter, criminal complaints were filed against Plaintiff. (Docket No. 2, Exs. B and C). On November 3, 2004, District Magistrate Robert Wyda dismissed all charges. (Docket No. 2, Ex. D). On March 17, 2006, Plaintiff initiated this lawsuit. (Docket No. 1).

II. LEGAL ANALYSIS

A. LEGAL STANDARD OF REVIEW

Summary judgment may only be granted 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. Fed. R. Civ. P. 56(c). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.

B. FIRST AMENDMENT VIOLATION OF FREE SPEECH*fn1

According to Plaintiff, his First Amendment claims arise out of Defendant's repeated pronouncements of "out of order" at borough council meetings and failing to recognize a motion of Plaintiff's, which were all directed at Plaintiff to squelch his right to free speech. (Docket No. 45, pp. 7-8). His ten page Brief in Opposition, however, fails to sufficiently address this argument. See, Docket No. 45. His entire conclusory argument is contained in two paragraphs without any citation to law.*fn2 (Docket No. 45, pp. 7-8). Conclusory and unsupported beliefs and statements are insufficient to create a genuine issue of material fact. See, Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1990), cert. denied, 502 U.S. 940 (1991). Furthermore, even when I apply the relevant law to the facts of this case, summary judgment as to Plaintiff's First Amendment claims is warranted.

"The government's power to prevent or limit speech on public property is carefully circumscribed by the First Amendment. Not all public property is open to unfettered public speech, for the 'First Amendment does not guarantee access to property simply because it is owned or controlled by the government.'" Eichenlaub v. Township of Indiana, 385 F.3d 274, 279 (3d Cir. 2004), citing U.S. Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 119 (1981). "The First Amendment does not guarantee persons the right to communicate their views 'at all times or in any manner that may be desired.'" Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989), citing Heffron v. International Soc'y for Krishna Consciousness, 452 U.S. 640, 647 (1981). In Eichenlaub, the Third Circuit recognized that, whether a meeting is a general public forum or a limited public forum, it is "reviewed under a sliding standard that allows for content-related regulation so long as the content is tied to the limitations that frame the scope of the designation, and so long as the regulation is neutral as to the viewpoint within the subject matter of that content." 385 F.3d at 281. "'Plainly, public bodies may confine their meetings to specified subject matter....' Thus, matters presented at a citizen's forum may be limited to issues germane to town government." Id. at 281 (citations omitted). When a borough council opened the meeting for the public to speak on agenda items, the meeting was a public forum. See, Eichenlaub, 385 F.3d at 280-81; Jones, 888 F.2d at 1331.

Applying the case law to the facts of this case, in the light most favorable to Plaintiff, I find summary judgment in favor of Defendant is warranted. The record reflects that at the March 2004, meeting, Plaintiff was called out of order on three occasions before he was removed from the meeting. See, Videotape of March 2004, meeting. At each instance, Plaintiff was called out of order for being disruptive and/or not addressing agenda items. Id. Specifically, during the first instance, Plaintiff was called out of order because he interrupted another citizen who had the floor and was speaking to Council. Id. at 33:55. Again, Plaintiff was called out of order when Plaintiff yelled to Mr. Fetzko to "sit down and shut up," while another member of council was asking a question and Donald Fetzko, the solicitor sitting at council table, was going to address the question. Id. 13:32. Finally, Plaintiff was called out of order when he strayed from the agenda item he was talking about to question Defendant and the Chief of Police about how many police officers were at the meeting. Id. at 5:29. As in Eichenlaub, I find that "[r]estricting such behavior is the sort of time, place, and manner regulation that passes muster under the most stringent scrutiny for a public forum. Indeed, for the presiding officer of a public meeting to allow a speaker to try to hijack the proceedings, or to filibuster them, would ...


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