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Adalberto Castro-Diaz, Et v. Kevin Kovalovsky

August 1, 2012


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


This is a §1983 action filed by Plaintiffs against Officer Kovalovsky of the Freemansburg Police as well as the Police Department. Defendants filed a Motion for Summary Judgment, to which the Plaintiffs failed to respond in a timely fashion. Nonetheless, on April 25, 2012, I issued an Order*fn1 directing a response within twenty-one (21) days.*fn2 (Doc. No. 32). Despite the additional time, Plaintiffs have not filed a response to the motion.*fn3

Federal Rule of Civil Procedure 56(e)(2) allows me to consider the Defendants' statement of uncontested facts undisputed because the Plaintiff failed to properly address the Defendants' assertions of fact as required by Rule 56(c). Nevertheless, I carefully examined the record in this case, including the exhibits attached to the Defendants' motion for summary judgment. For the reasons set forth below, I will grant the defendant's uncontested motion for summary judgment in its entirety.


Plaintiffs, Adalberto Castro-Diaz, Amparo Hernandez, and minor Nebreylka Castro, filed a Writ of Summons in this matter on June 25, 2010 in the Court of Common Pleas of Northampton County. (Doc. No. 31 at ¶ 1).*fn4 Thereafter, they filed a Complaint in the Court of Common Pleas of Northampton County on January 4, 2011.*fn5 (Doc. No. 31 at ¶ 2). The Complaint alleges that on or about July 25, 2008, Officer Kovalovsky was on duty and operating a patrol car in the Borough of Freemansburg. (Complaint at ¶ 5). Plaintiffs claim they were in a Nissan pickup truck when Officer Kovalovsky ran into the side of the vehicle running it off the road and forcibly removed Plaintiff at gun point.*fn6

(Id. at ¶¶ 6-8; Exhibit "F" at ¶ 14, 17-18).*fn7 Castro-Diaz then claims he was handcuffed and forced to sit in the back of the police car until Gertudis Espinosa arrived on the scene and pleaded with the Officer to release Mr. Castro-Diaz.*fn8 (Id. at ¶¶ 9-11). Castro-Diaz claims that after he was released, Officer Kovalovsky arranged for his vehicle to be towed and issued a citation to Plaintiff to cover up the officer's illegal activities. (Id. at ¶12). Plaintiff claims that the Borough of Freemansburg permits and tolerates the excessive use of force by officers.

Following discovery, Defendants have articulated a number of undisputed material facts which are supported by the record and conflict with the allegations submitted in the Complaint. Specifically, on May 16, 2008, Plaintiff Castro-Diaz was operating a Toyota pickup truck registered to Israel Espinosa when it was stopped at 9:37 a.m. by Officer Kovalovsky for traveling at 60 mph in a 45 mph zone, during a rain storm without headlights. (Doc. No. 31 at ¶¶ 7-10, Exhibit "B"; Exhibit "J" at ¶ 3).*fn9 Plaintiff's female companion informed the officer that she was the daughter of the vehicle's owner.*fn10 (Doc. No. 31 at ¶ 13). Officer Kovalovsky performed a check of Castro-Diaz's Puerto Rico I.D. card, discovered that he did not have a driver's license, and issued him a citation for driving without a license. (Doc. No. 31 at ¶¶ 14-17, Exhibit "B").

Although Plaintiff's claim that the officer damaged the Nissan Truck when he pulled them over, the City of Bethlehem's accident report shows that the Nissan truck was involved in an auto-accident on June 3, 2008 when it ran into a parked unoccupied vehicle. (Exhibit "D"). Additionally, a July 25, 2008 receipt from the Fast Lane Towing and Transport Company, shows that a Nissan Truck was towed, not a Toyota. (Doc. No. 31 at ¶¶ 23-24, Exhibit "C"; Exhibit "J" at ¶ 16).*fn11 Further, Officer Kovalovsky was not working on July 25, 2008, when the Plaintiffs claim he ran them off the road. (Doc. No. 31 at ¶ 27; Exhibits "H"; Exhibit "J" at ¶ 18).*fn12 There is no record of any officer from the Freemansburg Police having contact with Plaintiffs on June 25, 2008. (Doc. No. 31 at ¶ 43).*fn13


Local Civil Rule 7.1(c) provides, in relevant part: any party opposing the motion shall serve a brief in opposition, together with such answer or other response which may be appropriate, within fourteen (14) days after service of the motion and supporting brief. In the absence of timely response, the motion may be granted as uncontested except that a summary judgment motion, to which there has been no timely response, will be governed by Fed. R. Civ. P. 56(c).

When a summary judgment motion is uncontested, the non-responding party does not lose the summary judgment motion by default. Instead, where a movant has the burden of proof and a non-movant does not respond to a motion at all, a district court must still find that summary judgment is "appropriate" under Fed. R. Civ. P. 56(c) by determining that the facts specified in or connection with the motion entitle the moving party to judgment as a matter of law.*fn14 Anchorage Assoc. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990).

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" when "a reasonable jury could return a verdict for the nonmoving party" based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" when it "might affect the outcome of the suit under the governing law." Id.

A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial Celotex burden can be met simply by demonstrating to the district court that "there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, the adverse party's response must cite "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

Under Rule 56 of the Federal Rules of Civil Procedure, the court must draw "all justifiable inferences" in favor of the non-moving party. Anderson, 477 U.S. at 255. If the non-moving party has produced more than a "mere scintilla of evidence" demonstrating a genuine issue of material fact, then the court may not credit the moving party's "version of events against the opponent, even if the quantity of the [moving party's] evidence far ...

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