The opinion of the court was delivered by: Judge Richard P. Conaboy
Here we consider the parties' cross-motions for summary judgment. (Docs. 12 and 16). Plaintiff Anthony Favata ("Plaintiff" or "Favata") filed this action on March 24, 2011. Plaintiff's complaint (Doc. 1) included two counts. Count I is predicated on 42 U.S.C. § 1983 and alleges that Defendant Kevin Seidel ("Defendant" or "Seidel") violated Plaintiff's exercise of his First Amendment rights while acting in his capacity as a Pennsylvania State Police Trooper and under color of state law. Count II asserted that Defendant's initiation of criminal proceedings against Plaintiff constituted a malicious prosecution under Pennsylvania law.*fn1 The aforementioned motions are ripe for disposition. For the reasons that follow, Plaintiff's motion will be denied and Defendant's motion will be granted.
Count I, the sole remaining Count, of Plaintiff's complaint asserts, at its essence, that Defendant cited Plaintiff for disorderly conduct pursuant to 18 P.S. § 5503(a)(4), a summary offense under Pennsylvania law, due solely to the Plaintiff's act of displaying the middle finger to another driver during an altercation on an exit ramp off Pennsylvania Route 309 on October 23, 2010. (Doc. 1 at 3.) Plaintiff reasons that the display of one's middle finger to another person or persons constitutes free speech protected by the First Amendment and, accordingly, that his arrest was an improper retaliation by a state official for his exercise of a fundamental constitutional right. (Doc. 1 at 5.)
Defendant asserts that Plaintiff's display of the middle finger to the other motorist in the aforementioned altercation was but one factor in Defendant's decision to cite Plaintiff for violation of the Pennsylvania Disorderly Conduct Statute. (Doc. 19 at 4.) Defendant contends that other, completely legitimate reasons existed to support the issuance of the citation that is central to this case. (Doc. 19 at 5.) Defendant reasons that these legitimate reasons provided him with probable cause to issue the citation and, thus, negate Plaintiff's claim. (Doc. 19 at 7-8.)
Summary Judgment Standard
Summary judgment is appropriate when the movant demonstrates there is no "genuine issue as to any material fact." Fed. R. Civ. P. 56(a). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
"An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S. at 248). In determining whether a genuine issue of fact exists, a court must resolve all factual doubts and draw all reasonable inferences in favor of the nonmoving party. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation omitted).
The initial burden is on the moving party to show an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (citations omitted). The moving party may meet this burden by "pointing out to the district court  that there is an absence of evidence to support the nonmoving party's case when the nonmoving party bears the ultimate burden of proof." Id. at 325. The non-moving party may not rest on the bare allegations contained in his or her pleadings, but is required by Federal Rule of Civil Procedure 56 to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Id. at 324.
"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of evidence." Anderson, 477 U.S. at 255. Therefore, when evidentiary facts are in dispute, when the credibility of witnesses may be in issue, or when conflicting evidence must be weighed, a full trial is usually necessary.
III. Plaintiff's Motion for Summary Judgment
Plaintiff's brief in support of his motion for summary judgment cites various cases for the proposition that one may make untrammeled use of one's middle finger with utter disregard for the context in which such an act takes place and with impunity to any legal consequences. (Doc. 15 at 5-6.) Even assuming, arguendo, that Plaintiff is correct in that regard, this Court concludes that Plaintiff is not entitled to summary judgment on Count I of his complaint because the record conclusively establishes that a reasonable juror could conclude that the Defendant had probable cause to issue the citation due to the existence of legitimate factors apart from his display of his middle finger during the aforementioned altercation.*fn2
The United States Supreme Court has held that, in an action to redress retaliation by a state official for the use of protected speech, the Plaintiff must prove that probable cause did not exist to support his prosecution. Hartman v. Moore, 547 U.S. 250, 265-66 (2006); see also Fisher v. Matthews, 792 F. Supp. 2d 745, 773 (M.D. Pa. 2011). Whether an officer had probable cause is dependent upon the information available to the officer at the time he ...