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Electronic Filing Adult Probation and Parole v. Carolyn Hixon and John Hixon

January 27, 2011




Plaintiffs, Carolyn Hixon ("Mrs. Hixon") and John Hixon ("Mr. Hixon")(collectively "Plaintiffs"), filed the instant action pursuant to 42 U.S.C. ' 1983, alleging violation of Mrs. Hixon‟s rights under the First, Fourth and Fourteenth Amendments to the Constitution of the United States, as well as several causes of action under state law, against Defendants, Adult Probation and Parole Department of the County of Fayette ("Probation"), Fayette County (the "County") and Probation Officer James Williams ("Williams")(collectively "Defendants"). Defendants have filed a Motion for Summary Judgment, Plaintiffs have responded and the matter is now before the Court.

II. STATEMENT OF CASE On June 7, 2007, Williams and Probation Officer Melissa Troyan ("Troyan") appeared at

Defendants have filed a Concise Statement of Material Facts in support of their motion for summary judgment. The Local Rules of the United States District Court for the Western District of Pennsylvania require that Plaintiff file a responsive "concise statement which responds to each numbered paragraph in the moving party‟s Concise Statement of Material Facts by . . . admitting or denying whether each fact contained [therein] . . . is undisputed and/or material . . . setting forth the basis for the denial if any fact . . . is not admitted in its entirety (as to whether it is undisputed or material), with appropriate reference to the record . . ." See LR 56.1(C)(1)(a) & (b). Material facts set forth in a moving party‟s concise statement of material facts will be deemed admitted for the purpose of deciding the motion for summary judgment "unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." See LR 56.1(E). Plaintiffs in this instance have failed to file a responsive statement as required by the Local Rules.

Alfred David Argiro III ("Argiro"), the grandson of Mrs. Hixon, resided with the Plaintiffs at 917 Pittsburgh Street, Scottdale, Pennsylvania 15683. Defendants‟ Concise Statement of Undisputed Material Facts ("Def. CSUMF") ¶¶ 2 & 3. On or about August 30, 2006, Argiro was placed on two (2) years‟ probation by the Court of Common Pleas of Fayette County for carrying a firearm without a license. Def. CSUMF ¶¶ 4 & 5. Williams was the probation officer assigned to supervise Argiro‟s probation. Def. CSUMF ¶ 6. As a condition of his probation, Argiro was required to submit to searches of his person, property, vehicle and residence by Probation without the issuance of a search warrant. Def. CSUMF ¶ 8.

At one point during the search, Williams left the basement to go outside. Def. CSUMF ¶ 35. Mrs. Hixon did not mention that she was injured, and Williams and Troyan finished the search of Argiro‟s room. Def. CSUMF ¶¶ 37 & 38.

the Pittsburgh Street residence to conduct a probation inspection because they had reason to believe Argiro was involved in the distribution of illegal narcotics. Def. CSUMF ¶¶ 10-12. When they arrived, Argiro was sitting in the passenger seat of a vehicle parked in front of the Pittsburgh Street residence. Def. CSUMF ¶ 13. Williams approached the vehicle, asked Argiro to exit, then searched and handcuffed him. Def. CSUMF ¶ 14. Williams, Troyan and Argiro then entered the home and proceeded to Argiro‟s bedroom located in the basement. Def. CSUMF ¶ 15. Argiro remained seated in a chair in his bedroom during the search. Def. CSUMF ¶ 19.

Mrs. Hixon arrived home at approximately 4:30 p.m. and testified that she heard voices in her basement. Def. CSUMF ¶¶ 20 & 21. Mrs. Hixon went downstairs and observed Argiro, Williams and Troyan in Argiro‟s bedroom. Def. CSUMF ¶ 22. She attempted to question Williams about what he was doing there, but Mrs. Hixon contends that Williams refused to answer her. Def. CSUMF ¶ 24. Williams, however, testified that he thought Hixon was speaking to Argiro and did not believe Hixon spoke to him at all during the search. Def. CSUMF ¶ 25. Argiro testified that either he or Troyan identified the probation officers to Hixon. Def. CSUMF ¶ 26.

27. Shortly thereafter, Mrs. Hixon decided to leave the basement and go outside as well. Def. CSUMF ¶ 28. As Mrs. Hixon started up the stairs, she contends that Williams came running down the stairs and ran into her, knocking her into the wall of the stairwell. Def. CSUMF ¶¶ 32--

III. LEGAL STANDARD FOR SUMMARY JUDGMENT F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

Pursuant to FED. R. CIV. P 56(c), summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court‟s consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193

When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond

IV. DISCUSSION The second requirement for establishing a First Amendment retaliation claim, is whether "the alleged retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising his First Amendment rights." Mckee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) Aby pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial.@ Simpson v. Kay Jewelers, ...

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