The opinion of the court was delivered by: Judge Caputo
Presently before the Court are Defendants David Cerski and Ashley Borough's Motion for Summary Judgment (Doc. 29) and Motion to Strike Plaintiff's Affidavits (Doc. 40). Because some of the statements in Plaintiff's affidavits that Defendants challenge are speculative and conclusory but other challenged statements do comply with Federal Rule of Civil Procedure 56(e), Defendants' motion to strike will be granted in part and denied in part. Because even viewing the record in the light most favorable to Plaintiff, she was not seized; the substantive component of the Due Process Clause of the Fourteenth Amendment is not the appropriate avenue through which to pursue Plaintiff's claim for unreasonable force; genuine issues of material fact exist regarding the claim that Defendant Cerski retaliated against Plaintiff for exercise of her First Amendment rights; Plaintiff has proffered insufficient evidence for a reasonable jury to conclude that Ashley Borough acted with deliberate indifference to her constitutional rights; and the Court retains jurisdiction over Plaintiff's state law claims, Defendants' motion for summary judgment will be granted in part and denied in part.
Plaintiff Sarah Coleman is a member of the Ashley Fire Police, a volunteer organization that assists the fire department in part by directing traffic and blocking streets. (Dep. of Sarah Coleman, Aug. 3, 2006 & Dec. 13, 2006, Defs.' Ex. 2, Doc. 31-2, at 17: 21-22, 26:22-25, 27: 1-7.) Defendant David Cerski has been the chief of the Ashley Police Department since 2001, and an officer with the department since 1986. (Dep. of David Cerski, May 9, 2006, Defs.' Ex. 1, Doc. 31-1, at 3: 18-23, 4: 1-8; Dep. of Mayor Richard Oravic, May 25, 2006, Pl.'s Ex. D, Doc. 37-5, at 39: 14-15.) On August 11, 2003, Plaintiff responded to a house fire in Ashley, and at the direction of her fire chief, Joseph McGlynn, she blocked the intersection of Main and Hazelton Streets. (Coleman Dep. at 101: 6-12, 102: 2-21.) Defendant Cerski later arrived at the scene and directed Plaintiff to open the intersection, but Plaintiff told Chief Cerski that she would not open the street until Fire Chief McGlynn directed her to do so. (Id. at 106: 9-21.)
The subsequent events of that day are disputed. The record, viewed in the light most favorable to the nonmoving party, Plaintiff, shows that Defendant Cerski directed Plaintiff to open the street, and when she responded that she could not, he held his badge up eight (8) to ten (10) inches from her face and said "you know what this badge is? ... it's my gold badge. I'm the chief," and when she repeated that she would not open the street until her fire chief told her to do so, Cerski responded "we'll see about that." (Id. at 106: 9-21, 117: 4-18.) Plaintiff also stated that her refusal "enraged Cerski, who had a fit at the scene." (Pl.'s Aff., Pl.'s Ex. E, Doc. 37-6 ¶ 4.) Defendant Cerski denies this account except that he admits he told Plaintiff, along with two other fire police members, that they could open the road. (Cerski Dep. at 34: 20-25, 35: 1-23.)
It is undisputed that on September 14, 2003, the Ashley Police, Ashley Fire Department, and Ashley Fire Police all responded to an accident involving an automobile and a motorcycle in which the driver of the motorcycle was killed. (Dep. of James Domyan, Sept. 8, 2006, Defs.' Ex. 7, at 7: 6-8, 8: 6-7, 9: 7-24, 12: 23-25, 13: 1-18; Dep. of Joseph McGlynn, May 25, 2006, Defs.' Ex. 8, at 9: 24-25, 10: 1-2.) Debris from the accident, and the decedent's body, remained on the road, and Defendant Cerski was next to the automobile when Plaintiff, also responding to the accident, approached Defendant Cerski to ask him a question. (Cerski Dep. at 23: 23-25, 24: 1-6; Coleman Dep. at 167: 11-18, 169: 8-11.)
What happened next is disputed. The evidence in the record, viewed in the light most favorable to Plaintiff, shows that when she approached Chief Cerski, he screamed "[t]his is my fucking scene. I don't need you here. Get out," and then stepped on her foot. (Pl.'s Aff. ¶¶ 6-7; Coleman Dep. at 164: 21-25, 168: 18-24, 169: 1-20.)He then "[g]rabbed my shoulder, pushed me back and pulled me forward. And he said, get off my fucking scene. I said, then get off my foot." (Coleman Dep. at 165: 1-3.) Then, Defendant Cerski did get off Plaintiff's foot and she left. (Id. at 169: 24-25; 171: 1-3.) The incident left red marks on Plaintiff's arm and neck. (See Domyan Dep. at 17: 12-16, 20: 24-25, 21: 1-15.) Plaintiff claims she had ripped clothing and bruises in the shape of Defendant Cerski's fingerprints. (See Pl.'s Counter Statement of Facts, Doc. 37 ¶ 27; Pl.'s Ex. F.) She further claims that she suffered a right upper trapezial and cervical sprain and strain, aggravation to a pre-existing shoulder condition, and pain, which amount to "permanent disability, directly related to the ... injury, which she sustained on September 14, 2003." (Letter from John A. Kline, Jr., M.D., to Barry H. Dyller, attorney to Ms. Coleman (May 30, 2006) Pl.'s Ex. G, Doc. 37-8, at 1, 4.)
The record, viewed in the light most favorable to the Plaintiff, shows that Defendant Cerski had been sued on three separate occasions for unconstitutional conduct, and that Defendant Ashley Borough knew of this history when it installed Defendant Cerski as the Chief of Police but did not question Cerski about the lawsuits or the underlying incidents. (Aff. of Arthur Breese, Pl.'s Ex. A, Doc. 37-2; Reply Aff. of Arthur Breese, Pl.'s Ex. B, Doc. 37-3; Oravic Dep. at 19: 14-25, 20-22; Cerski Dep. at 21: 16-25, 22: 1-16.) The Borough also asked Defendant Cerski to go through anger management training because of an altercation with another employee, but Defendant Cerski did not undergo the counseling. (Oravic Dep. at 42-46.)
Plaintiff filed suit against Defendant Cerski and Defendant Ashley Borough under 42 U.S.C. § 1983, alleging unreasonable seizure in violation of the Fourth Amendment, denial of due process in violation of the Fourteenth Amendment, and retaliation for exercising her First Amendment right of free speech. (Compl. Doc. 1.) Plaintiff also brought state law claims for assault, battery and intentional infliction of emotional distress against Defendant Cerski. (Id.) This Court dismissed the claim for intentional infliction of emotional distress (Mem. & Order, Doc. 13.) and Defendants presently move for summary judgment on the remaining claims and move to strike portions of Plaintiff's affidavits offered in opposition to their motion for summary judgment. These motions are fully briefed and ripe for disposition.
I. Motion to Strike Under Rule 56(e)
Defendants move to strike portions of the affidavits that Plaintiff submitted in opposition to Defendants' summary judgment motion for non-compliance with Rule 56(e) of the Federal Rules of Civil Procedure. Although Rule 56(e), which sets forth the form that affidavits must take, does not specifically provide for a motion to strike, courts have held that a party wishing to challenge an opponent's affidavits for containing defects under Rule 56(e) should move to strike the affidavits or else waive any objection to the defects. See, e.g., In Re Unisys Sav. Plan Litig., 74 F.3d 420, 437 n.12 (3d Cir. 1996); Grine v. Coombs, 214 F.R.D. 31, 338-39 (W.D. Pa. 2003).
Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavits in support or opposition to a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." If portions of an affidavit do not meet these standards, it is appropriate for a court to disregard, or strike, those portions from the record for purposes of resolving the summary judgment motion.
Summary judgment 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." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. See Anderson, 477 U.S. at 256-57.
The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
I. Motion to Strike Plaintiff's Affidavits
Defendants argue that portions of the affidavits Plaintiff submitted in opposition to their motion for summary judgment should be stricken because they are conclusory, speculative and lacking in fact; conflict, without explanation, with Plaintiff's prior deposition testimony; and contain inadmissible hearsay evidence. (Defs.' Br. in Supp. of Mot. to Strike Pl.'s Affs., Doc 41, at 1.) ...