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McTernan v. Barth

October 23, 2007


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


Plaintiff John McTernan filed this § 1983 action against Defendant Sergeant Richard Barth, as well as the City of York and York's mayor and police commissioner. McTernan alleges violations of his constitutional rights of free exercise of religion, speech, and assembly. By an order of May 11, 2007, the Court dismissed McTernan's claims against York, the mayor, the police commissioner, and Barth in his official capacity. (Doc. 24.) Currently before the court is Sergeant Barth's motion for summary judgment on McTernan's claims against him in his individual capacity. (Doc. 30.) For the reasons set for below, the Court will grant Sergeant Barth's motion for summary judgment.


The following facts are derived from the complaint and the briefs, exhibits, declarations, and other evidence submitted by the parties in support of and opposition to the current motion. These facts, and any reasonable inferences drawn therefrom, are viewed in the light most favorable to the non-moving party, McTernan. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Plaintiff John McTernan is a Christian, pro-life advocate who, for the last seven years, has traveled to the Planned Parenthood of Central Pennsylvania facility in the City of York to state his beliefs regarding abortion. (Def.'s Statement of Undisputed Material Facts ["SUF"] ¶ 17; Pl.'s Statement in Opposition ["SIO"] ¶ 17; McTernan Aff. ¶¶ 3-4.) These actions are motivated by McTernan's sincerely held religious beliefs. (McTernan Aff. ¶ 7.)

The Planned Parenthood facility is located on South Beaver Street in York between Hancock Street and Rose Alley. (SUF, SIO ¶¶ 18-19; McTernan Dep. at 15, Ex. 1.) Planned Parenthood's parking lot is located across Rose Alley from the facility. (McTernan Dep. at 15, Ex. 1.) Public sidewalks run the length of the facility from Hancock Street to Rose Alley and from the parking lot to Beaver Street. (SUF, SIO ¶ 18.) Rose Alley is less than 20 feet wide and is subject to twoway vehicular traffic. (SUF, SIO ¶ 19.) In addition to vehicles accessing the Planned Parenthood parking lot, Rose Alley is also subject to traffic going to and from a printing business located further down the alley, including tractor-trailer trucks. (SUF, SIO ¶ 20; McTernan Dep. at 19, 40-41.) There is no posted speed limit in Rose Alley, nor are there signs restricting the direction of travel, the size of vehicles using the alley, or the hours during which vehicles may use the alley. (SUF, SIO ¶ 21; McTernan Dep. at 20-21.)

Pursuant to a contract between Planned Parenthood and the City of York, police officers are assigned to work overtime details at the Planned Parenthood facility.(SUF, SIO ¶ 3.) Sergeant Barth has worked this overtime detail on at least a dozen occasions. (Id.)

On June 29, 2005, Sergeant Barth worked an overtime detail at the Planned Parenthood facility. (SUF, SIO ¶ 4.) On that date, McTernan and another protester were located in Rose Alley when a vehicle traveling down Rose Alley toward Beaver Street swerved toward them and passed at a close distance. (SUF, SIO ¶ 22.)

On September 28, 2005, Sergeant Barth again worked an overtime detail at the Planned Parenthood facility. (SUF, SIO ¶ 7.) On that date, Sergeant Barth instructed pro-life protestors and Planned Parenthood personnel that, because of safety concerns, it was permissible for individuals to travel through Rose Alley, but that they could not stand, linger, or remain in Rose Alley.*fn1 (SUF, SIO ¶¶ 8, 25-26; Barth Dep. at 13-14; Barth Decl. ¶ 8; McTernan Aff. ¶ 10.) Sergeant Barth referenced the June 29, 2005 incident as an example of his safety concern. (SUF, SIO ¶¶ 25, 26.) Because of Sergeant Barth's instructions, McTernan did not enter the alley that day. (McTernan Aff. ¶ 14.)

McTernan was threatened with possible arrest should he violate Sergeant Barth's instructions. (SIO ¶ 12; McTernan Aff. ¶ 13.) McTernan was not arrested on September 28, 2005 (SUF, SIO ¶ 28) and has not been threatened with arrest by Sergeant Barth since that date (SUF, SIO ¶ 30.) After September 28, 2005, McTernan continued to go to the Planned Parenthood facility to express his views on abortion. (SUF, SIO ¶ 29.)


Summary judgment is appropriate if the record establishes "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). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson, 477 U.S. at 248-49.

In opposing summary judgment, the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000).

Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the underlying facts and all reasonable inferences therefrom must be viewed in the light most favorable to ...

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