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Walsh v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


June 10, 2008

RORY M. WALSH, PLAINTIFF
v.
THE UNITED STATES OF AMERICA, THE DEPARTMENT OF THE NAVY, MAJ. GEN. JERRY D. HUMBLE, LT. GEN. MICHAEL J. BYRON, MAJ. GEN. THOMAS F. GHORMLEY, GEN. JAMES L. JONES, JR., COL. RICHARD M. WENZELL, SPECIAL AGENT WEST, COL. M.W. MCERLEAN, AND LT. COL. PAUL D. ROY, DEFENDANTS

The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court are cross-motions for summary judgment (Docs. 269, 273) with respect to the claims of plaintiff, Rory M. Walsh ("Walsh"), against defendant General James L. Jones, Jr. ("Jones"). For the reasons that follow, defendant's motion will be granted and plaintiff's motion will be denied.

I. Statement of Facts*fn1

Walsh served in the United States Marine Corps from 1975 through 1996 and was repeatedly recognized and decorated for his service. (Doc. 288 ¶¶ 1-2, 5; Doc. 281 ¶¶ 1-2,5.) Walsh instituted the instant action on April 25, 2005. (See Doc. 1.) He amended the complaint on October 21, 2005. (See Doc. 30.) In the amended complaint, Walsh alleges that Jones violated his Fourth and Fifth Amendment rights*fn2 when Jones, or Naval Intelligence Agents instructed by Jones, broke into Walsh's residence and stole correspondence and Walsh's military hats in March 2005.*fn3 (Id. ¶¶ 92, 111-14.) On August 29, 2007, Walsh supplemented the amended complaint with the following Fourth and Fifth Amendment allegations against Jones:*fn4

(1) On October 27, 2005, Walsh and his sons discovered a Naval Intelligence agent in Walsh's garage without authorization and the agent fled upon being discovered.

(2) On numerous occasions, Naval Intelligence agents unlawfully entered Walsh's residence and damaged a computer disk marked NIS, searched through Walsh's medications, substituted antibiotic ointment for his sons' toothpaste, viewed work papers related to the above-captioned action, and removed two discovery responses.

(3) On October 11, 2006, Naval Intelligence agents attempted to strike Walsh with their vehicle and forced him off the road into nearby bushes as Walsh was taking an evening run.

(4) On July 14, 2007, Naval Intelligence agents unlocked and opened the kitchen window in Walsh's residence (a third-floor apartment) and may have entered his residence.

(5) On July 14, 2007, Naval Intelligence agents monitored Walsh's telephone calls and did not release the monitor/lock on his phone number.

(6) On July 27, 2007, Walsh discovered a Naval Intelligence agent surveilling his residence by peering into the kitchen window from the roof of Walsh's apartment complex.*fn5

(Doc. 229.)*fn6 On January 4, 2008, Walsh and Jones filed cross-motions for summary judgment (Docs. 269, 273) on these claims. The motions have been fully briefed and are ripe for disposition.

II. Standard of Review

Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). It places the burden on the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

The court is permitted to resolve cross-motions for summary judgment concurrently. InterBusiness Bank, N.A. v. First Nat'l Bank of Mifflintown, 318 F. Supp. 2d 230, 235 (M.D. Pa. 2004) (describing concurrent resolution of cross-motions for summary judgment as "a formidable task"); see also Irvin v. United Mine Workers of Am. Health & Ret. Funds, No. 05-1072, 2007 WL 539646, at *1 (W.D. Pa. Feb. 15, 2007); 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2720 (3d ed. 1998). When doing so, the court is bound to view the evidence in the light most favorable to the non-moving party with respect to each motion. FED. R. CIV. P. 56; see also Strategic Learning, Inc. v. Wentz, No. 05-467, 2006 WL 3437531, at *4 (M.D. Pa. Nov. 29, 2006).

III. Discussion

Walsh brings a Bivens*fn7 action against Jones for Jones' alleged violations of Walsh's Fourth and Fifth Amendment rights. "A Bivens action, which is the federal equivalent of the § 1983 cause of action against state actors, will lie where the defendant has violated the plaintiff's rights under the color of federal law."*fn8 Brown v. Philip Morris, 250 F.3d 789, 800 (3d Cir. 2001); see also Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004).

In the matter sub judice, the court finds that, given the evidence of record, a reasonable jury could not conclude that Jones was directly or indirectly involved in the alleged conduct. Having thoroughly reviewed the evidence submitted by Walsh for the instant motions and for the other motions filed during the course of this action,*fn9 the court concludes that the record is devoid of any evidence demonstrating the "personal involvement" of Jones in the alleged conduct, whether direct or indirect.*fn10 See Harper v. Beard, No. 2:05-CV-01803-LDD, 2007 WL 4242214, at *7 n.20 (E.D. Pa. Nov. 28, 2007) ("Personal involvement is necessary to sustain a cause of action under Bivens . . . ." (citing Balter v. United States, 172 F. App'x 401, 403 (3d Cir. 2006), Richards v. Pennsylvania, 196 F. App'x 82, 85 (3d Cir. 2006), and Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000))). The court recognizes and commends Walsh's long and decorated service to this country. However, his conclusory statements and speculation regarding Jones' personal involvement in the alleged conduct are insufficient to reach a jury.*fn11

Accordingly, the court will grant Jones' motion for summary judgment and will deny Walsh's motion for summary judgment.*fn12

IV. Conclusion

For the foregoing reasons, Jones' motion for summary judgment will be granted and Walsh's motion for summary judgment will be denied. An appropriate order will issue.

CHRISTOPHER C. CONNER United States District Judge

ORDER

AND NOW, this 10th day of June, 2008, upon consideration of the motions for summary judgment (Docs. 269, 273), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. Defendant's motion for summary judgment (Doc. 273) is GRANTED.

2. Plaintiff's motion for summary judgment (Doc. 269) is DENIED.

3. The Clerk of Court is directed to enter JUDGMENT in favor of defendant General James L. Jones, Jr. and against plaintiff on all claims.

4. The Clerk of Court is directed to CLOSE this case.


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