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Retzler v. McAndrew

September 29, 2010

WESTLEY RETZLER, PLAINTIFF,
v.
JAMES MCANDREW, ET AL., DEFENDANTS.



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

MEMORANDUM

Pro se Plaintiff Westley Retlzer claims that James McAndrew, the Bristol Township Chief of Police, violated his constitutional rights when McAndrew took Retzler's audio recorder and manhandled Retzler following a Bristol Township Council meeting. Retzler also claims that Bristol Township Police Department Community Service Officer David Woodard violated his constitutional rights when Woodard interjected himself into the altercation between Chief McAndrew and Retzler. Additionally, he alleges that in a separate incident, Woodard pointed a gun at Retzler while they were at a municipal building. Defendants filed a motion for summary judgment to which Retzler has responded. The Court grants the motion.

I. BACKGROUND

Westley Retzler resides in Bristol Township, Pennsylvania. (Defs.' Mot. for Summ. J. Ex. G [Retzler Dep.] at 10.) He has regularly attended and participated in Bristol Township Council meetings since 1998. (Id. at 16.)

On June 16, 2006, Retzler attended a Bristol Township Council meeting. He walked into the auditorium where the meeting was being held, picked up a meeting agenda and took a seat in the back of the room. (Id. at 36.) Retzler elected to speak during a public comment period toward the end of the meeting. (Id. at 37-39.)

When it was Retzler's turn to speak, he got up to the podium and directed his comments to Chief McAndrew. (Id. at 44-45.) Retzler said, "there was smoke coming off the top of your head and you could see a smoke cloud all the way here from here to Belleview Avenue and McCarthy Street." (Id. at 45-46.) These comments were directed to Chief McAndrew and revealed the intersection where the Chief lived. (Id. at 45-46.) Retzler addressed the audience for about three minutes. (Id. at 47.) Chief McAndrew, who was sitting at a table reserved for the heads of various local departments, fired back at Retzler that he should not be permitted to disclose his address at the meeting. (Id. at 49-52.)

After the meeting adjourned, Retzler walked down the hall to the men's room. (Id. at 54.) Upon leaving the men's room, he headed back towards the meeting room where Chief McAndrew was standing talking to somebody. (Id. at 55-56.) Chief McAndrew spotted Retzler, stopped his conversation, scurried into the hallway, and slammed the door shut. (Id. at 56.) The Chief then said to Retzler, "I got you now. I got you now, you little fucking psycho bastard. I set you up." (Id. at 57; see also Defs.' Mot. for Summ. J. Ex. J [McAndrew Dep.] at 23.) Retzler told the Chief that he could record their conversation. (Retzler Dep. at 62.) Chief McAndrew then grabbed Retzler's right arm and shoved him against the wall and took Retzler's audio recorder from his pocket. (Id. at 58-59.) Chief McAndrew smacked Retzler on the head with the audio recorder. (Id. at 104.) After Chief McAndrew removed the recorder and released his grip of Retzler's arm, Officer Woodard entered the hallway. (Id. at 68-70.)

The Chief instructed Woodard, who was armed, to place Retzler against the wall and pat him down. (Id. at 76, 78-79.) Woodard patted down Retzler and then Retzler and Woodard walked back into the meeting room. (Id. at 79-81.) Upon returning to the meeting room, Retzler saw Chief McAndrew turn on the recorder and play it back. (Id. at 82.) The Chief then repeated that he "got this fucking little psycho bastard now." (Id. at 83.) Retzler asked for his recorder back but the Chief refused because he was going to have a technician examine it. (Id. at 86.) Retzler consented, but insisted on a property receipt, which he was given. (Id. at 86-87, 90-91.) After he received his property receipt, Retzler returned to his vehicle and departed, after the Chief "told [him] to get the hell out of here." (Id. at 91, 96.)

Upon returning home that evening, Retzler called the State Police and went to the hospital with Laura Warden, the woman with whom he lived. (Id. at 98-99.) At the hospital, x-rays were taken and Retzler was given pills. (Id. at 101-02.) He later followed up with a doctor. (Id. at 108.) Additionally, the State Police interviewed Retzler and Bucks County Detectives took pictures of Retzler's arm and head while he was at the hospital. (Id. at 102-03.)

On June 27, 2006, Magisterial District Judge Joanne Kline signed a warrant allowing police to listen to the contents of Retlzer's audio recorder. (Defs.' Mot. for Summ. J. Ex. E [Search Warrant].) According to the affidavit of probable cause, Chief McAndrew confronted Retzler in the hallway to express his anger that Retzler had revealed the Chief's address. Retzler pulled the recorder from his pocket and told Chief McAndrew to be careful about what he said because he was being recorded. (Id.) Chief McAndrew seized the recorder because he believed Retzler committed a crime by recording their private conversation. (Id.) Retzler's audio recorder was eventually returned to him and no criminal charges were filed against McAndrew or Retzler as a result of this incident. (Retzler Dep. at 122-23; Defs.' Mot. for Summ. J. Ex. D [Bucks County Detectives Investigation Report].)

During his deposition, Retzler also referred to an incident in June of 2007 in which Woodard, while in his car, pointed a gun at Retzler's head on the grounds of a municipal building. (Retzler Dep. at 128-29.) The only information adduced during discovery about this incident was that Woodard never pointed a gun at Plaintiff. (Defs.' Mot. for Summ. J. Ex. I [Woodard Dep.] at 23, 48.)

II. STANDARD OF REVIEW

Summary judgment is appropriate when the admissible evidence fails to demonstrate a dispute of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When the moving party does not bear the burden of persuasion at trial, it may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thereafter, the nonmoving party demonstrates a genuine issue of material fact if sufficient evidence is provided to allow a reasonable finder of fact to find for the nonmoving party at trial. Anderson, 477 U.S. at 248. In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). Furthermore, a court may not make credibility determinations or weigh the evidence in making its determination. See Reeves v. Sanderson Plumbing Prods., 530 U.S.133, 150 (2000); see also Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 665 (3d Cir. 2002).

Although Plaintiff is acting pro se, he is not relieved of his obligation to present evidence that a genuine issue of material fact exists for trial. See Watson v. Phila. Hous. Auth., 629 F. Supp. 2d 481, 485 (E.D. Pa. 2009). Unsubstantiated arguments made in briefs are not considered evidence of ...


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