Judge Gary L. Lancaster/Magistrate Judge Amy Reynolds Hay
REPORT AND RECOMMENDATION
In this action brought pursuant to 42 U.S.C. § 1983, the Court considers a Motion for Summary Judgment (Doc. 43) filed by Defendant, Pennsylvania State Police Corporal Barry Gaston ("Gaston"), with respect to the remaining single federal claim - the claim that Gaston used excessive force against the Plaintiff, Mrs. Donna B. Noble ("Noble" or "the Plaintiff"), in violation of her rights under the Fourth Amendment to the United States Constitution - and a number of related state law claims. It is respectfully recommended that the Motion be denied.
Summary Judgment is appropriate only where there are no genuine issues of material fact. Matsushita Elec. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, if the evidence, however, is "'merely colorable' or is 'not significantly probative,'" summary judgment may, nonetheless, be granted. Equimark Commercial Fin. Co. v. C.I.T. Fin. Serv. Corp., 812 F.2d 141, 144 (3d Cir.1987) (quoting Anderson, 477 U.S. at 249-50).
In evaluating the evidence, the Court must view the facts and the inferences to be drawn therefrom in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255. The burden of establishing that no genuine issue of material fact exists rests with the movant. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). At the summary judgment stage, the Court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. When examining the record to see if there are genuine issues of material fact, the Court's focus is on issue finding, not on issue resolution.
By way of preface, the Court notes that its determination of the undisputed facts is affected - but not fundamentally altered - by the Plaintiff's failure to comply with the Court's Local Rules governing Summary Judgment. First, LCvR 56.B(1) requires that a party seeking summary judgment file with the Court a concise statement of material facts "setting forth the facts essential for the Court to decide the motion . . . which the moving party contends are undisputed and material, including any facts which for purposes of the summary judgment motion are assumed to be true." The Defendant complied with this Rule. See (Doc. 45). Next, LCvR 56.C requires that the party opposing the motion for summary judgment file:
1. [A] separately filed concise statement, which responds to each numbered paragraph in the moving party's Concise Statement of Material Facts by:
a. admitting or denying whether each fact contained in the moving party's . . . Statement . . . is undisputed and/or material;
b. setting forth the basis for the denial . . . ;
c. setting forth in separately numbered paragraphs any other material facts that are allegedly at issue, and/or that the opposing party asserts are necessary . . . .
Id. Where the non-moving party fails to comply with LCvR 56.C, those facts which the movant claims are undisputed will be deemed admitted. LCvR 56.E. Because the Plaintiff failed to file the mandatory responsive concise statement, the Court determines the undisputed ...