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Benckini v. Hawk

September 14, 2009

GENE C. BENCKINI T/A BENCKINI NURSERIES, PLAINTIFF
v.
BRIAN HAWK, ET AL., DEFENDANTS



The opinion of the court was delivered by: Pratter, J.

MEMORANDUM

Pro se Plaintiff Gene C. Benckini, a frequent litigant in this Court, again has sued a number of law enforcement personnel. Considering the Complaint most indulgently in order to give him all benefits of the doubt, Mr. Benckini alleges that Upper Saucon Police Department officers wrongfully denied him access to the land he leased for his nursery business, shoved him on one occasion, and issued to him a traffic citation for a tail light that was functioning properly.

Cross motions for summary judgment on behalf of Mr. Benckini and Upper Saucon Police Officers Brian Hawk, Stephen Kuebler, Amey Getz and Edward Hartman are now pending. For the reasons set forth below, the Court will deny Mr. Benckini's Motion for Summary Judgment and grant the Upper Saucon Defendants' Motion for Summary Judgment.

I. The Legal Standard

Upon motion of a party, 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 judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment may be granted only if the moving party persuades the district court that "there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988). An issue is "genuine" if a reasonable jury could possibly hold in the non-movant's favor with regard to that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). A fact is "material" only if its resolution could affect the result of the suit under governing law. Id.

Evaluating a summary judgment motion, the court "must view the facts in the light most favorable to the non-moving party," and make every reasonable inference in that party's favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). If, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine issue of material fact, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 217, 322 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987). The party opposing summary judgment must support each essential element of that party's opposition with concrete evidence in the record. Celotex, 477 U.S. at 322-23. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). This requirement upholds the "underlying purpose of summary judgment [which] is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense." Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 642 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).

The same standards and burdens apply on cross motions for summary judgment. See Applemans v. City of Phila., 826 F.2d 214, 216 (3d Cir. 1987); Peters Twp. Sch. Dist. v. Hartford Accident and Indem. Co., 833 F.2d 32, 34 (3d Cir. 1987). Cross motions for summary judgment are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waived judicial consideration and determination whether genuine issues of material fact exist.

Transportes Ferreos de Venezuella II Ca v. NKK Corp., 239 F.3d 555, 560 (3d Cir. 2001) (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). Of course, when presented with cross motions for summary judgment, the Court must and does consider the motions separately. See Williams v. Phila. Hous. Auth., 834 F.Supp. 794, 797 (E.D. Pa. 1993), aff'd, 27 F.3d 560 (3d Cir. 1994).

To describe the background of this case for the purposes of the pending motions, the Court sets out here only those facts of record that are undisputed. They are construed in the light most favorable to the non-moving party. The Court disregards those factual allegations that either party makes without any evidentiary support from the record. See Celotex, 477 U.S. at 322-23; Jones v. United Parcel Service, 214 F.3d 402, 407 (3d Cir. 2000) (requiring more than "unsupported allegations" to defeat summary judgment). During the summary judgment stage, "a plaintiff [opposing summary judgment] 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, 214 F.3d at 407 (citing Celotex, 477 U.S. at 324).

The following factual recitation separately notes those instances where a party disputes factual contentions made by the opposing party, but provides no evidentiary basis from the record for those disputes, and, in that case, the opposing party's factual contentions are treated as undisputed. See Blaylock v. City of Philadelphia, 504 F.3d 405, 413 (3d Cir. 2007) (citing Anderson, 477 U.S. 242) (when the record contradicts a party's description of the facts, it does not create a genuine dispute). Moreover, the Court has made every appropriate indulgence of Mr. Benckini in light of his pro se status throughout the entire time this case has been pending.*fn1

II. Factual Background

Mr. Benckini commenced this action in August 2007 when he filed suit against 18 defendants, including Coopersburg Borough, Upper Saucon Township, and various individuals from those communities and Lehigh County. The Court dismissed most of the claims, save only limited § 1983 claims for violations of due process rights, excessive force and unlawful seizure alleged against Upper Saucon Police Officers Brian Hawk, Stephen Kuebler, Amey Getz and Edward Hartman, and a § 1983 claim against Lehigh County Detective Leroy Oswald. See Benckini v. Upper Saucon Township, No. 07-3580, 2008 U.S. Dist. LEXIS 38723 (E.D. Pa. May 13, 2008). The Court's May 13, 2008 Memorandum recites the extensive factual background of this case. Id. at *3-9. On April 21, 2009, the Court dismissed the remaining claim against Detective Oswald. See Benckini v. Hawk, No. 07-3580, 2009 U.S. Dist. LEXIS 33583 (E.D. Pa. April 21, 2009).

A summary of the remaining claims against Upper Saucon Police Officers Hawk, Kuebler, Getz and Hartman is included in this Memorandum in order to facilitate an understanding of the assertions Mr. Benckini has made and the evidence presented to the Court in connection with the specific pair of motions presently before the Court. The remaining claims against the officers focus on interactions the officers had with Mr. Benckini on January 12, March 1, May 22, and June 25, 2006 at or near the Lichtenwalner Farm, a piece of property Mr. Benckini once used for his nursery business.

i. January 12, 2006

Officers Hawk and Gezt responded to a call reporting trespassing at the Lichtenwalner Farm on January 12, 2006. The officers met with Lloyd Lichtenwalner, who owns the property, and his daughter, Anita Rice. Mr. Lichtenwalner and Ms. Rice told the officers that their attorney had instructed Mr. Benckini to remove his equipment from their property by December 31, 2005, and they showed the officers a copy of a letter from the attorney to Mr. Benckini so instructing Mr. Benckini. Defendants' Response to Plaintiff's Motion, Ex. A (Hawk Affidavit) ¶¶ 3-6; (Getz Affidavit) ¶¶ 3-6. See Ex. A (Weida letter 12/9/04).

Having received this information from Mr. Lichtenwalner, the officers found Mr. Benckini on the Lichtenwalner Farm and asked him what he was doing there. Mr. Benckini told the officers that he leased the land for his nursery business. Hawk Affidavit ¶ 7. Mr. Benckini showed Officer Hawk several documents he claimed demonstrated his right to use the property. Defendants' Motion, Ex. B at 30 (Benckini Deposition 10/15/08). Officer Hawk informed Mr. Benckini that the property owner wanted him to leave and that if he refused, he would be arrested. The officer told Mr. Benckini that any dispute regarding the property should be resolved through civil litigation. Hawk Affidavit ¶ 9. Mr. Benckini left the property. Id. ¶ 8.

ii. March 1, 2006

Having received no indication from the police or Mr. Lichtenwalner that he could return to the property, but assuming that the passage of time cured any problems, Mr. Benckini returned to the Lichtenwalner Farm on March 1, 2006. Benckini Deposition 10/15/08 at 128-29, 131, 133. When he was at the property, Officers Hawk and Kuebler*fn2 arrived and again informed Mr. Benckini that he had to stay off of the property because Mr. Lichtenwalner wanted him to leave. Id. at 122-132. Again, Mr. Benckini told the officers that he had a lease for the land. Id. at 128. However, Mr. Benckini acknowledges that he had not been present for any ...


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