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Michael Park and Brandy Lee Park, Individually and As Parents and Legal Guardians of Minor Children v. Gary Veasie

May 11, 2011

MICHAEL PARK AND BRANDY LEE PARK, INDIVIDUALLY AND AS PARENTS AND LEGAL GUARDIANS OF MINOR CHILDREN
ERIE PARK, JOSHUA MICHAEL PARK, ELIZABETH MAE PARK, AND DESIREE MARIE TARANTINO, PLAINTIFFS
v.
GARY VEASIE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
OFFICER MICHAEL BOGART, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
OFFICER BRIAN MARKOCHIK, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; AND, THE BOROUGH OF WEATHERLY,
DEFENDANTS



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Plaintiffs Michael and Brandy Park bring this civil rights case on their own behalf, and on behalf of their minor children, as a result of Defendants' search of their home on September 18, 2008. Before the court is (1) Defendants' Motion to Strike Portions of Plaintiffs' Statement of Material Facts and Exhibit in Support of Plaintiffs' Motion for Summary Judgment (Doc. 63) and (2) Defendants' Motion to Have Certain Paragraphs of Defendants' Statement of Material Facts in Support of Defendants' Motion for Summary Judgment Deemed Admitted (Doc. 65). The parties have briefed the issues and both motions are ripe for disposition.

I. Background

Because the parties' statements of material facts accompanying their respective pending summary judgment motions are the subject of this memorandum, the factual record is, at this point, unclear and appears to be at least partially contested. The court will therefore refrain from providing an exhaustive factual recitation. For the purposes of this memorandum, it is sufficient to provide that this case arises from a search of Plaintiffs' home on September 18, 2008.*fn1 Plaintiffs' second amended complaint asserts fifteen counts. In Counts I-XII, Plaintiffs assert federal causes of action under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Specifically, in these counts, Plaintiffs assert that Defendants violated Plaintiffs' rights of: (1) freedom from unlawful arrest and seizure; (2) freedom from prosecution without probable cause; (3) freedom from unreasonable, unjustifiable, and excessive use of force; (4) not to be deprived of liberty and property without due process; (5) freedom from summary punishment; (6) freedom from arbitrary governmental action; and (7) freedom from governmental retaliation against Plaintiffs' exercise of freedom of speech. In Counts XIII-XV, Plaintiffs assert supplemental state law causes of action.
On January 21, 2011, Plaintiffs filed a motion for partial summary judgment (Doc. 38) and memorandum of law in support of the motion (Doc. 39). Defendants subsequently filed a brief in opposition to Plaintiffs' motion for partial summary judgment (Doc. 42) on February 11, 2011, and Plaintiffs filed a reply brief (Doc. 45) on February 17, 2011. On April 4, 2011, the court granted Plaintiff leave to file, nunc pro tunc, an enumerated statement of facts to accompany its motion for partial summary judgment.*fn2 (Doc. 58.)

On March 15, 2011, Defendants filed their own motion for summary judgment (Doc. 48), brief in support (Doc. 49), and statement of material facts (Doc. 50). On April 4, 2011, Plaintiffs filed a counter-statement of facts (Doc. 59) and brief in opposition to Defendants' motion for summary judgment (Doc. 60).

Both summary judgment motions are currently pending before the court. In the interim, Defendants filed the instant motion to strike a portion of Plaintiffs' statement of facts (Doc. 63) and a motion to have portions of its own statement of facts be deemed admitted (Doc. 65). For the reasons set forth below, the court will strike both Plaintiffs' and Defendants' statements of material facts accompanying their respective motions for summary judgment as well as any counter-statements thereto, and will require that the parties re-submit properly written statements of material fact. Accordingly, Defendants' motions will be deemed moot.

II. Discussion

In its motion to strike, Defendants argue that twenty-one out of forty-seven paragraphs in Plaintiffs' statement of facts should be stricken because those paragraphs contain "numerous inflammatory factual assertions, legal conclusions and argument" or because they fail to supply a proper citation to the record. (Br. in Supp. of Mot. to Strike, Doc. 64, at 3.) Defendants further argue that Plaintiffs' statement of facts violates Local Rule 56.1 which requires a "short and concise statement of material facts . . . with references to the parts of the record that support the statements." L.R. 56.1. In response, Plaintiffs challenge the assertion that their statement of facts contains inflammatory and argumentative phrases and argue instead that the statement is "replete with specific, meticulous references to the evidentiary record." (Br. in Response to Def.'s Mot. to Strike, Doc. 72, at 3 of 15.) To the extent that the statement includes inflammatory or argumentative remarks, Plaintiffs state that such characterizations "are simply a function of the untenable facts themselves." (Id.,at 11 of 15.)

Following a review of Plaintiffs' statement of material facts, the court finds that Plaintiffs' recitation of the facts does not comport with Local Rule 56.1. The first two paragraphs alone demonstrate the argumentative and conclusive nature of the document:

1. On September 10, 2008, Michael Park spoke out at a meeting of the Weatherly Borough Council, exercising his First Amendment right to air his grievances with respect to the arbitrary and abusive conduct of members of the local police department. One week after he learned of Mr. Park's public statements, defendant Gary Veasie, the embattled Chief of Police, interrogated seven year old Joshua Park at his elementary school after teachers suspected that the child had brought a marijuana-type pipe to school. Without first notifying Mr. or Mrs. Park, Chief Veasie questioned the little boy in an effort to elicit incriminating statements concerning Joshua's parents. Armed with a statement of dubious reliability obtained from a seven year old child who was improperly interrogated, Veasie secured a search warrant (but only after he augmented his supporting affidavit with information which he now admits was false). Within hours, five police officers, armed with pistols and a shotgun, converged on the Park residence, terrifying Mrs. Park and her children. The search was essentially fruitless, uncovering no drugs, but rather, according to the defendants, only two small pieces of drug paraphernalia.

2. Compounding their outrageous acts, the defendants unnecessarily handcuffed Mr. Park, inexplicably charged him with possession of drug paraphernalia, and, for good measure, had his seven year old son taken into "protective custody" solely on the basis of wild, imaginary, and wholly unsubstantiated concerns for his "safety." (Doc. 58, ¶¶ 1-2) (emphasis added.) The emphasized portions contain language that the court finds to be unnecessarily argumentative and improperly included in a short and concise statement of material facts. Similar language exists throughout the statement of material facts. Such advocacy is best left to the parties' briefs in support or in opposition to the summary judgment motions. The court notes that both parties were permitted to file briefs well in excess of 15 pages, which they did.*fn3

Local Rule 56.1 directs parties moving for summary judgment to supply "a separate, short and concise statement of material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried." L.R. 56.1 (emphasis added.) It is the obligation of the movant's counsel to scour the record thoroughly and identify facts that (it would submit) are not in genuine dispute. Gantt v. Absolute Machine Tools, Inc., 2007 U.S. Dist. LEXIS 74337 (M.D. Pa. Oct. 4, 2007) (Smyser, M.J.) (Kane, C.J.). The purpose of the short and concise statement of facts is "to structure a party's summary judgment legal and factual theory into a format that permits and facilitates the court's direct and accurate consideration to the motion." Hartshorn v. Throop Borough, 2009 U.S. Dist. LEXIS 22372, at *8 (M.D. Pa. March 19, 2009) (citations omitted). A proper statement of facts should enable "the court to identify contested facts expeditiously and [prevent] factual disputes from becoming obscured by a lengthy record." Pinegar v. Shinseki, 2009 U.S. Dist. LEXIS 40067, at *2 (M.D. Pa. May 12, 2009).

To dispose of this motion, the court can consider several options. For example, the court could partially grant the motion and strike those portions of the statement of facts that it finds objectionable. This, however, would hinder rather than facilitate the court's direct and accurate consideration of Plaintiffs' motion for partial summary judgment because, in addition to requiring the court to review the statement of facts line-by-line separating argumentative statements from properly supported factual assertions, it would ultimately leave the court with a still lengthy statement of facts riddled with stricken statements. Alternatively, the court could, as argued by the Plaintiffs, deny the motion and analyze Plaintiffs' statement of facts trying to separate useful information from improper or unsupported entries. (Doc. 72, at 4 of 15) (citing Glodek v. Jersey Shore State Bank, 2009 U.S. Dist. LEXIS 77118, *2, n.1 (M.D. Pa. Aug. 28, 2009)). However, such deciphering is an ineffective use of the court's time and resources and it runs contrary to the central purpose of a statement of material facts which is to aid the court to expeditiously identify ...


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