The opinion of the court was delivered by: Judge McClure
On March 10, 2006, plaintiff Kurt Thompson initiated this civil rights action pursuant to 42 U.S.C. § 1983 by filing a complaint against defendants Mark Lehman, Andrew Lyon, and Cheryl Brungard. Lehman is the Mayor of Jersey Shore Borough, Pennsylvania, Lyon is a Borough Council Member, and Brungard is the Borough Council President. Plaintiff alleges that defendants deprived him of his First Amendment right to free speech. Plaintiff also alleges that defendants retaliated against him for engaging in protected speech.
On July 23, 2007, defendants filed a motion for summary judgment. (Rec. Doc. No. 25.) On August 13, 2007, plaintiff filed an opposing brief. (Rec. Doc. No. 31.) No reply brief has been filed and the time for doing so has since passed. Now, for the following reasons, we will grant in part and deny in part the motion.
Plaintiff Kurt Thompson is a resident of Jersey Shore, Pennsylvania and an outspoken critic of the local government. On December 30, 2005, plaintiff went to the Jersey Shore borough building. He testified at his deposition that he went there to attend a presentation by a state representative of grant money for the community. (Dep. of Kurt Thompson, Rec. Doc. No. 28-2, at 55.) At some point while he was at the building, plaintiff went to an office where defendants Lehman and Lyon were located to discuss a personal disagreement plaintiff and defendant Lehman had had earlier that day. (Id. at 56-57.) Plaintiff knocked on the door and defendants Lehman and Lyon refused to allow plaintiff to enter. (Id. at 57.) When plaintiff began talking through the door about the disagreement, defendant Lyon removed plaintiff from the building. (Id.) After the incident, plaintiff was able to return to the building in time for the presentation. (Id. at 60, 75, 78.)
On January 23, 2006, plaintiff attended a public borough council meeting. (Id. at 83.) During the meeting, he voiced his concerns about the borough's expenditure of public funds. (Id.) He testified that he voiced this opinion without being recognized, but that this is how other members of the public were making statements at this particular meeting. (Id. at 90.) Furthermore, plaintiff testified that during the meeting, he had several side conversations with members of the audience, but that these conversations were not loud enough for others to hear. (Id. at 87.) At some point during the meeting, plaintiff went outside to smoke a cigarette. (Id. at 92.) While outside, Police Chief Martin Jeirles told plaintiff that he was not permitted to return to the meeting and to accompany him to the police station. (Id. at 92.) Jeirles testified that he was told by the mayor (defendant Lehman) that the borough council president (defendant Brungard) wanted plaintiff removed from the meeting and arrested. (Dep. of Martin Jeirles, Rec. Doc. No. 28-9, at 12.)
On August 4, 2006, defendant Lehman presented Police Chief Jeirles with a "procedural addition" which stated that officers of the police department were required to remove individuals from public borough council meetings after the borough council president "gavels out" an individual for a second time. (Id. at 19; Dep. of Mark Lehman, Rec. Doc. No. 28-8, at 30-32.) This "procedural addition" did not provide any direction as to when an individual is to be "gavel[ed] out." (Dep. of Martin Jeirles, Rec. Doc. No. 28-9, at 19.) Furthermore, Jeirles testified that the reason defendant Lehman passed this procedural addition was because he was tired of plaintiff's continuing to speak after the council president hits her gavel. (Id. at 24.)
On October 23, 2006, plaintiff attended another public borough council meeting. (Dep. of Kurt Thompson, Rec. Doc. No. 28-2, at 140.) Plaintiff testified that he was given the floor and spoke critically to the treasurer regarding the borough's budget. (Id.) At some point, defendant Brungard gaveled down plaintiff and told him that he had to speak directly because she was the council president. (Id. at 141.) Plaintiff testified that at this point, defendant Lyon made a "snide remark" along the lines of shut up and sit down. (Id.) Plaintiff responded by informing defendant Lyon that he was out of order and then asked defendant Brungard to get her council people under control. Defendant Brungard again gaveled down plaintiff and informed plaintiff that he must direct his questions to her. (Id.) Plaintiff then resumed questioning the treasurer and defendant Brungard permitted him to proceed in this manner, at one point informing plaintiff that he had two minutes left to speak. (Id. at 141-42.) While plaintiff was finishing up these last two minutes, defendant Lehman ordered the chief of police to remove plaintiff from the meeting because he had violated his written directive by being gaveled down twice. (Id.; Deposition of Martin Jeirles, Rec. Doc. No. 28-9, at 25- 27.) The chief of police then removed plaintiff from the meeting while he was still speaking. (Dep. of Kurt Thompson, Rec. Doc. No. 28-2, at 142-43.)
There is also evidence that during another public borough council meeting, defendant Lyon told plaintiff, who has back problems, to stand up when plaintiff was already standing. (Id. at 121.) Defendant Lyon testified that the purpose of this statement was to draw attention to the fact that plaintiff was being disruptive and also to inject some humor into an uncomfortable situation. (Dep. of Andrew Lyon, Rec. Doc. No. 28-4, at 27-28.) Similarly, plaintiff testified that defendant Lehman once called him a "liar" at a public meeting. (Dep. of Kurt Thompson, Rec. Doc. No. 28-2, at 122.) Finally, plaintiff's wife, who worked for the borough, testified that she was informed by two borough employees that defendant Lyon went to their houses asking them to fire her. (Dep. of Karen Thompson, Rec. Doc. No. 28-5, at 71-72.)
A district court may properly grant a motion for summary judgment "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). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are those which might affect the outcome of the suit. Id.; Justofin v. Metropolitan Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004).
Regardless of who bears the burden of persuasion at trial, the party moving for summary judgment has the burden to show an absence of genuine issues of material fact. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996) (citations omitted). To meet this burden when the moving party does not bear the burden of persuasion at trial, the moving party must show 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.'" Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d. Cir. 1987)); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). More simply put, a party moving for summary judgment who does not bear the burden of persuasion at trial is not required to ...