The opinion of the court was delivered by: Jones, J.
Before the Court is Defendant's Motion for Summary Judgment (Docket No. 27), four Motions in Limine (Docket Nos. 42, 43, 46, 50), and Plaintiff's Motion for Reconsideration (Doc. No. 75).
There are two threshold matters that were raised at oral argument. First, the parties have agreed to dismiss Mr. Philip F. Pisani as a defendant in this case. Second, as discussed, the Court has reviewed the propriety of Plaintiff's "cruel and unusual punishment" claim. The Court finds that this claim is proper under the Fourteenth Amendment. Hubbard v. Taylor, 399 F.3d 150 (3d Cir. 2005) (citing Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000) and Bell v. Wolfish, 441 U.S. 520 (1979)).
In addition, at oral argument the Court ordered supplemental briefing on two subjects: (a) the admissibility of the testimony of Dr. Richard Katz and (b) the admissibility of evidence of Plaintiff's alcoholism and/or substance abuse.
The motions will be resolved as follows.
I. Summary Judgment Motion
Under Fed. R. Civ. P. 56(c), 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 summary judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). In order to defeat a motion for summary judgment, disputes must be both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and (2) genuine, meaning the evidence must be such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23. An issue is genuine if the fact finder could reasonably return a verdict in favor of the non-moving party with respect to that issue. Anderson, 477 U.S. at 248. In reviewing a motion for summary judgment, the court "does not make credibility determinations and must view facts and inferences in the light most favorable to the party opposing the motion." Seigel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).
In this instance, there are so many genuine disputes of material fact as to make listing all of them a waste of judicial resources. However, mindful of the Third Circuit's preferences when qualified immunity is asserted, the Court will highlight the core disputes of material fact at play here.
Regarding Plaintiff's First Amendment retaliation claim, nearly every critical fact is disputed. These include facts concerning (a) whether Plaintiff complained to Defendant Kate Zielke ("Zielke") about the ankle monitor being on too tight, (b) the nature of Plaintiff's complaints to Zielke, (c) how often Plaintiff complained to Zielke, (d) Zielke's response to Plaintiff's complaints, (e) Plaintiff's behavior in response to Zielke's response to Plaintiff's complaints, and (f) the impact on Plaintiff of Zielke's response to Plaintiff's complaints. These disputes are material, and Zielke has adduced evidence such that a jury could find for the non-moving party.
Regarding Plaintiff's Fourteenth Amendment claims, there is a similar glut of disputed facts. These include facts concerning (a) whether Plaintiff was in Zielke's custody and control, (b) whether the ankle monitor was placed on too tight, (c) whether Plaintiff suffered pain from the ankle monitor being put on too tight, (d) whether Zielke was aware the ankle monitor was on too tight, (e) whether Zielke ignored Plaintiff's complaints about pain and suffering caused by the ankle monitor (i.e., what Zielke did when and if she became aware the ankle monitor was on too tight and causing pain), and (f) whether Zielke acted to punish Plaintiff by not loosening the ankle monitor. These disputes are material, and Zielke has adduced evidence such that a jury could find for the non-moving party.
Zielke has asserted qualified immunity as a defense. Certain officials, including police officers and other state actors who perform "discretionary functions," are shielded from suit if their conduct did not violate a "clearly established statutory or constitutional right[ ] of which a reasonable person would have known." Saucier v. Katz, 533 U.S. 194, 200-01 (2001); Wilson v. Layne, 526 U.S. 603, 609 (1999). This doctrine, known as "qualified immunity," provides not only a defense to liability, but immunity from suit. Hunter v. Bryant, 502 U.S. 224, 227 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). To gain the protection of the doctrine, the defendant must show that (1) the plaintiff has not demonstrated "a deprivation of an actual constitutional right" or (2) that the right at issue was not "clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999); see Kopec v. Tate, 361 F.3d 772, 775-76 (3d Cir.2004). The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier, 533 U.S. at 202; Pitner v. Murrin, 2008 U.S. Dist. LEXIS 48754 (E.D. Pa. June 23, 2008).
Here, qualified immunity does not adhere.
Plaintiff has a clearly established right under the First Amendment to be free of retaliation for speech. Governmental action designed to retaliate against and chill expression strikes at the heart of the First Amendment. Larsen v. Senate of Com. of Pa., 154 F.3d 82, 93-94 (3d Cir. 1998); Palma v. Atlantic County, 53 F. Supp. 2d 743 (D.N.J. 1999) (citing Mendocino Environmental Center v. Mendocino County, 14 F.3d 457, 464 (9th Cir. 1994) and Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987)). Plaintiff has adduced facts which, if proven, could establish that Plaintiff's speech was a substantial or motivating factor in the alleged retaliatory action. Larsen, 154 F.3d at 93-94 (3d Cir. 1998) (citing Feldman v. Philadelphia Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994)).*fn1
The qualified immunity analysis also requires a determination as to whether reasonable officials could believe that their conduct was not unlawful even if it was in fact unlawful. In the context of a First Amendment retaliation claim, that determination turns on an inquiry into whether officials reasonably could believe that their motivations were proper even if their motivations were in fact retaliatory. Larsen, 154 F.3d at 94. While a plaintiff may not recover merely on the basis of a speculative chill due to generalized and legitimate law enforcement initiatives, he may where he adduces evidence of discrete acts of intimidation directed solely at silencing protected speech. Palma, 53 F. Supp. 2d at 753 (citing Mendocino Envtl. Ctr., 14 F.3d at 464). ...