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Miller v. North Belle Vernon Borough

October 29, 2010


The opinion of the court was delivered by: Donetta W. Ambrose Judge, United States District Court



In this civil action, Plaintiff, now proceeding pro se, asserts claims for violation of 42 U.S.C. ' 1983, stemming from events occurring at a council meeting of the Defendant Borough, which was attended by members of the public. In brief, Plaintiff and other citizen attendees spoke at the meeting. Eventually, Defendant Simboli, Borough President, warned Plaintiff that he would be removed from the meeting. Defendant Lyons, the Mayor, then directed Defendant Naylor, a police officer, to remove Plaintiff. Defendant Naylor acted on that directive. Plaintiff now brings suit for intentional infliction of emotional distress, as well as First Amendment retaliation, suppression, and political discrimination.

Before the Court are the parties' cross-motions for summary judgment. For the following reasons, the Defendants' Motion will be granted in part, and the remainder denied, and Plaintiff's will be denied.



Primarily, the background of this case is supplied by minutes and transcript of the subject meeting, and Plaintiff's deposition. Defendants explain that they did not submit the depositions of Lyons, Simboli, or fact witness Drew Rainey, because they were unable to timely obtain transcripts, due in part to Plaintiff's failure to pay the court reporter. Defendants did not file a motion for extension of time pursuant to Fed. R. Civ. P. 56(f); nor did they submit their own affidavits. I attempted to listen to the audiotaped recording of the meeting; the recorded voices were muffled and barely comprehensible on the playback device readily available to me. As of the date of this Opinion, neither part has proffered a supplemental record; thus, this Opinion reflects the facts that are absent from the record, as much as those that are present.

The controversy in this case surrounds events occurring at a North Belle Vernon Borough Council ("Borough Council") Regular Meeting on October 10, 2006. Upon entering the meeting, attendees were presented with a sheet of paper where, if they wished to speak, they were to sign their names and note the subject that they wished to talk about. Typically, the council then would the announce names in sequence. Several attendees who spoke at the October 10th meeting did not note the subject they wished to talk about. In addition, one person spoke who had not signed her name to the sheet.

The sign-in sheet from the meeting at issue bears a handwritten notation, "Limit of 5 minutes per visitor," and a typed notation, "REMARKS FROM VISITORS WILL BE HEARD ONLY UNDER PUBLIC PARTICIPATION." There is no evidence of any other written rules governing Borough Council meetings.*fn1 Moreover, there is no evidence that citizen speakers were actually timed when they spoke, and no evidence of how long each speaker in fact spoke.

There is no evidence that any speaker other than Plaintiff, when called upon to speak, was verbally advised that he could speak for five minutes.

According to the Defendant's transcription of the recording,*fn2 Defendant Simboli opened the meeting with a statement:

Simboli:..I ask for your respect particularly when you address this council. I will not have other conversations going on in the room while somebody is speaking. If you get arrogant and you start getting out of control I will warn you the first time. The second time the Mayor will take it from there and the officer will remove you. We don't want these meetings to get out of control. We want to keep everything orderly. ***

Well, I'll tell you what I'm going to do, I'm going to take [the names] as they're written so we don't have a problem, okay. Mr. Miller, you can go first.

Plaintiff: [inaudible] ask that others go before me [inaudible].

Simboli: Now let's not start off on the wrong foot..I don't want to be going back and forth here buddy. Your name is first so you got five minutes to address. Plaintiff: The only reason I came here tonight was because I have an article here from the Valley Independent.My only question is, there is some remarks in here by Lyons said "Miller is just one person who has a junkyard in North Belle Vernon." Was there a public..were those remarks made at a public meeting..

Simboli: Where were they [inaudible]?

Plaintiff: Were they made at a special meeting?

Simboli: No sir.

Miller: It is your understanding that these were his personal remarks?

Simboli: Don't ask me. I can't answer that.

Miller: Were those your personal remarks Mr. Lyons?

Lyons: Have you ever cooperated with us? If you have something to say, say it. You are not going to inquisition me.

Plaintiff: [inaudible]

Lyons: No, you are not going to inquisition me, okay? If you have something to say, you say it.

Plaintiff: I don't have to inquisition you.

Lyons: If you have something to say, you say it,

Plaintiff: Did you make those remarks to [the reporter]?

Lyons: I'm not responding.

Plaintiff: Well, [the reporter] has already responded. I'm just glad to know that they weren't made at a public meeting and there was no special meeting called.that ...

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