The opinion of the court was delivered by: Judge John E. Jones III
Plaintiff John Holman filed this § 1983 action against Defendant Officer Michael Koltunovich*fn1 , as well as the City of York and York's mayor and police commissioner. Holman alleges violations of his constitutional rights of free exercise of religion, speech, and assembly as well as claims of unlawful arrest and excessive force. By an order of May 11, 2007, the Court dismissed Holman's claims against York, the mayor, the police commissioner, and Officer Koltunovich in his official capacity. (Doc. 26.) Currently before the Court is Officer Koltunovich's motion for summary judgment on Holman's claims against him in his individual capacity. (Doc. 32.) For the reasons set for below, the Court will the motion.
The following facts are derived from the complaint and the briefs, exhibits, 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, Holman. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Plaintiff John Holman is a Christian, pro-life advocate who travels to the Planned Parenthood of Central Pennsylvania facility in the City of York to state his beliefs regarding abortion. (Holman Aff. ¶¶ 3-4.) These actions are motivated by Holman's sincerely held religious beliefs. (Holman Aff. ¶ 7.) Prior to the time in question, Holman had traveled to the Planned Parenthood facility for this purpose approximately a dozen times. (Def.'s Statement of Undisputed Material Facts ["SUF"] ¶ 19; Pl.'s Statement in Opposition ["SIO"] ¶ 19.)
The Planned Parenthood facility is located on South Beaver Street in York between Hancock Street and Rose Alley. (SUF, SIO ¶¶ 8, 10; Holman Dep. at 10-11, Ex. 1.) Planned Parenthood owns or leases a parking lot which is located across Rose Alley from the facility and is delineated from Rose Alley by a curb.
(SUF, SIO ¶ 10.) Rose Alley is a narrow alley that is subject to two-way vehicular traffic. (SUF, SIO ¶¶ 8, 23.) 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. (Id.) There are no 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 ¶ 23.) Public sidewalks are located in front of the facility along Beaver Street and along the side of the facility from the parking lot to Beaver Street. (SUF, SIO ¶ 7; Holman Dep. at 12-14, Ex. 1.)
Businesses in and around the City of York contract with and pay the City to have off-duty police officers work overtime details at their facilities. (SUF, SIO ¶ 1.) Planned Parenthood has such a contract with the City. (Id.) Officer Koltunovich was assigned to the overtime detail at the Planned Parenthood facility on December 7, 2005. (SUF, SIO ¶ 12.) Officer Koltunovich had worked the overtime detail at the Planned Parenthood facility previously. (Koltunovich Dep. at 20.)
As a result of public safety concerns regarding vehicular traffic in Rose Alley, prior to December 7, 2005, Officer Koltunovich and other officers had instructed anti-abortion advocates and Planned Parenthood personnel that they could not stand, linger, or remain in Rose Alley. (SUF, SIO ¶ 9; Holman Dep. at 31-32, 43.) Prior to December 7, 2005, Officer Koltunovich had instructed Holman and other anti-abortion advocates that the parking lot located across Rose Alley was private property owned by Planned Parenthood and that Planned Parenthood did not want Holman or other anti-abortion advocates trespassing on its property. (SUF, SIO ¶ 11; Holman Dep. at 9-10.) Officer Koltunovich did not otherwise restrict Holman or any other pro-life advocate from making comments, distributing literature or displaying signs, nor did Officer Koltunovich restrict Holman or any other pro-life advocate from engaging in any activities on any of the public sidewalks surrounding the Planned Parenthood facility. (SUF, SIO ¶¶ 4-7.)
On December 7, 2005, Holman traveled to the Planned Parenthood facility to state his beliefs regarding abortion. (Holman Aff. ¶ 10.) As Holman was standing in Rose Alley, a large truck turned into the alley. (SUF, SIO ¶ 13.) To avoid being struck by the truck, Holman trespassed into Planned Parenthood's parking lot. (Id.) Officer Koltunovich then arrested Holman for trespassing. (See SUF, SIO ¶ 15.) At a March 9, 2006 hearing, District Justice Haskell dismissed the citation against Holman. (SUF, SIO ¶¶ 17, 29.) In doing so, however, District Justice Haskell indicated:
I should say, Officer Koltunovich, on the record, I understand exactly why you did what you did, when you did it because you needed to do it, and I don't find you at fault in having filed the citation. You were given particular marching orders and they were, no one is to be on these locations.
It's not your job to interpret those orders and figure out what this Court is going to do. For God's sake, you can get a migraine trying to figure out what I'm going to do. I won't put anybody in that scenario. So, I have no problem with the police department having exercised their proper authority to keep people off the private property of Planned Parenthood. (SUF, SIO ¶ 29; Tr. of Proceedings of Preliminary Hearing, Mar. 9, 2006 at 49.)
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 ...