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Gemmell v. Hall

July 19, 2007




I. Introduction

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Defendants, acting "under color of state law," violated their constitutional rights under the First and Fourteenth Amendments, by harassing Plaintiffs and retaliating against them after they complained about noise and disruptive behavior by volunteer firemen at the Gill Hall Volunteer Fire Department. Currently pending before this Court is Defendants' motion for summary judgment (doc. no. 45), and Plaintiffs' response thereto. After careful consideration, and for the reasons that follow, this Court will grant Defendants' motion for summary judgment.

II. Factual Background

The facts as set forth in the parties' statements of facts can be fairly summarized as follows*fn1

Plaintiffs, William and Eileen Gemmell, live across the street from Defendant Gill Hall Volunteer Fire Department ("Volunteer Fire Department"). Plaintiffs allege that, in 2005, they began to suffer a pattern of nightly harassing activities from the Volunteer Fire Department's firefighters. The harassment, as stated by Plaintiffs, consisted of the following: "(1) blaring air horns and sirens; (2) flood lights; (3) shouting; (4) stalking; (5) staring; (6) littering; (7) public displays of sexual fornication; (8) public urination; (9) parties with alcohol consumption with civilians; (10) females sunbathing; (11) curse words exclaimed; (12) nightly cookouts; and (13) personal vehicles peeling out." Plaintiffs complained initially to the John Doe firefighters about the activities,*fn2 and then to Chief Alvin S. Felix ("Chief Felix"), the police, the Borough of Jefferson Hills ("Borough"), the fire commissioner, and the Borough Mayor, allegedly with each occasion of complaint leading to more personal and intensified forms of harassment.

On August 1, 2006, Plaintiffs filed a Complaint against Defendants alleging violations of their civil rights pursuant to 42 U.S.C. § 1983 and subsequently filed an Amended Complaint which Defendants moved to dismiss. At the Case Management Conference on December 4, 2006, the Court granted Plaintiffs leave to file a Second Amended Complaint to allege a custom or policy of the Borough and that the Volunteer Fire Department/Individual Defendant were acting "under color of state law"*fn3 and thus rendering Defendants' motions to provide any factual allegations in support of a custom or policy of the Borough, or any factual support for a conspiracy to retaliate claim. This Court denied Defendants' motion and on May 23, 2007, Defendants filed this instant motion for summary judgment.

Defendants also filed a reply (doc. no. 69) to Plaintiffs' response to Defendants' motion for summary judgment (doc. no. 63), in which, they requested the Court to disregard Plaintiffs' "statement of facts" as set forth in their brief in opposition to summary judgment, on the ground that Plaintiffs failed to file a separate statement of material facts, as required by local rule and this Court's practices and procedures. The Court will deny Defendants' request.

The Court, however, notes that it has given Plaintiffs and their counsel enlargements of time and generous leeway regarding compliance with this Court's rules, practices and procedures, and has attempted to facilitate settlement by referring them to United States Magistrate Judge Francis X. Caiazza to conduct settle conferences. See, e.g. Orders of Court dated March 6, 2007, May 30, 2007, and June 22, 2007. The Court's generosity cannot, however, extend so far as to excuse the lack of substance in Plaintiffs' response to the motion for summary judgment, which is devoid of reference to any precedent or meaningful discussion of application of the law to the facts. Indeed, Plaintiffs' entire "argument" section consists of about one full page, eleven sentences, consisting mostly of bold conclusionary statements without citation of authority or any attempt to apply the governing law to the facts Plaintiffs believe to have been presented.*fn4

III. Standard of Review

Summary judgment, under Fed. R. Civ. P. 56(c) 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." Woodside v. School Dist. Of Philadelphia Bd. Of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). Deciding on a summary judgment motion requires that the court "view the evidence . . . through the prism of the substantive evidentiary burden" in order to ascertain "whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of the evidence required by the governing law or that he did not." Anderson v. Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

Where the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). The non-moving party must respond "by pointing to sufficient cognizable evidence to creatematerial issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n. 1 (3d Cir. 1994).

In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor .' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.2004.) See also Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001) (court must view ...

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