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Posey v. Borough

United States District Court, Western District of Pennsylvania

July 28, 2014

HERMAN POSEY, JR., Plaintiff,
v.
SWISSVALE BOROUGH, et al, Defendants,

MEMORANDUM OPINION

Mark R. Hornak, United States District Judge

The Plaintiff Herman Posey brought a multi-pronged Complaint against the Borough of Swissvale, Pennsylvania and several of its police officials claiming a wide array of Constitutional violations and state law torts, all surrounding his aborted prosecution in state court for the theft by deception and related offenses involving a "scooter" that the Department of Veteran's Affairs ("VA") provided to him.[1]

The Court will not repeat the litigation history of this case, which is set forth in detail in its Opinion relative to the Motion to Dismiss. ECF No. 27. After substantial litigation at the Motion to Dismiss stage, only two (2) claims are left, both against one (1) Defendant, Officer John A. Corrado, They are a First Amendment retaliation claim and a Pennsylvania law defamation claim. The gravamen of them is that Officer Corrado "got back at" the Plaintiff by advising two (2) officials at a Pittsburgh-area Veteran's Administration ("VA") Hospital that the Plaintiff was a "criminal" and that as a result, one (1) of his monthly veterans' benefits checks was delayed in receipt by two (2) weeks. As part of discovery in this case, the depositions of each such VA employee were taken, as were those of Mr. Posey and Officer Corrado. Based on that discovery record, Officer Corrado moves for summary judgment in his favor on all claims.

After the summary judgment motion was filed, Mr. Posey's then-lawyer, Robert Owsiany, moved to withdraw as counsel. ECF No. 48. He advised the Court, both in writing and in open Court in the Plaintiffs presence, that he could not in good faith continue as counsel because he did not believe that he could file an opposition to the summary judgment motion consistent with his duties as a lawyer, his obligations to the Court, or consistent with Fed.R.Civ.P. 11. The Court granted that Motion, ECF No. 52, and then gave the Plaintiff an extra-long period of time to obtain new counsel, and to file a response to Officer Corrado's summary judgment motion. See Text Order of May 19, 2014. The Plaintiff has filed a response pro se, ECF No. 55, Officer Corrado has filed a reply, ECF No. 56, and the Motion is ripe for disposition.[2]

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The parties must support their position by "citing to 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)(A).

Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a. genuine issue for trial, " or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec, Indus. Co, v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56(a), (e)) (emphasis in original). In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). If the non-moving party's evidence merely is colorable or lacks sufficient probative force, summary judgment must be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

In other words, summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party. See Id . at 250. "Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587; Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009).

In reviewing the record evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Matsushita, 475 U.S. at 587-88; Huston, 568 F.3d at 104 (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48. "Where the defendant is the moving party, the initial burden is on the defendant to show that the plaintiff has failed to establish one or more essential elements to his case." See Podobnik v. U.S. Postal Serv., 409 F.3d 584, 589 (3d Cir. 2005) (citing Celotex Corp., 477 U.S. at 323-24).

The heart of the Plaintiffs case is that in order to get back at him for protesting the treatment Officer Corrado subjected him to related to the charges filed over the scooter[3], Officer Corrado went to the VA Hospital in Pittsburgh, and told the two officials there that the Plaintiff was "a criminal, " and then induced them to interfere with the regular and timely transmittal of his VA benefits check. Officer Corrado has denied doing any such thing. The two VA employees deposed, Tammy Proctor and Carol Ann McAfee, not only denied being told by Corrado that Mr. Posey was a "criminal", but more importantly, they denied ever being asked to get in the way of his benefits' payment. They also testified that in their positions, at their VA facility, they could not possibly cause any delay in the payment of those benefits. They testified that their facility had nothing at all to do with such things, and that all benefits payments were handled out of an entirely different VA office. Proctor depo. at 16-22; McAfee depo. at 17.

Both Ms. Proctor and Ms. McAfee testified without contradiction that at no time did they have any conversation with Officer Corrado, or anyone else from Swissvale Borough, about Mr. Posey's benefits checks, or the timing of their transmittal or payment. The Plaintiff in his deposition could offer nothing but his own conjecture that Officer Corrado had anything at all to do with the delay (of two weeks) in the payment of his VA benefits. Posey depo. at 55-62. Further, the record is crystal clear that as to the alleged "First Amendment retaliation", Officer Corrado was not the police officer that filed the scooter-related charges against the Plaintiff in the first place. Thus, the record established in discovery reveals that there is no issue of fact at all on this point. There is nothing from which a rational jury could conclude that anything Officer Corrado did interfered with, or attempted to interfere with, Mr. Posey's VA benefits. Thus, there is zero admissible evidence going to the causation issue which this Court said might exist when it denied Officer Corrado's Motion to Dismiss the Amended Complaint. ECF No. 22 at 21-22.

Because there is no genuine issue of material fact on that point, and Officer Corrado is entitled to a judgment in his favor as a matter of law on this claim, summary judgment will be granted in favor of the Defendant and against the Plaintiff on the First Amendment retaliation claim, the only remaining federal claim in the case.

As to the state law defamation claim, it is pretty clear from the record that in a single alleged conversation with Ms. Proctor[4], Officer Corrado at the most told her two (2) things about the Plaintiff and the scooter. First, that he believed that the Plaintiff had sold it to his (Plaintiffs) brother for $1, 000 (based on the report of his brother Elijah), and second, because the Plaintiff had done that, the Plaintiff was going to be charged with theft by deception of the scooter, a scooter which the Plaintiff had reported as stolen to the Swissvale Police Department. While navigating the disposition of this claim is a bit trickier, nonetheless, it fails.[5]

Recall that the Plaintiff was issued a three-wheeled scooter by the VA, a/k/a scooter #1, He complained about the tipsy nature of it, and the VA agreed to replace it with a four-wheel model, a/k/a scooter #2. Ms. Proctor testified that once the VA gives a veteran a scooter, the VA considers it to be the property of the veteran, to be disposed as he wants. At the same time, she also said that it was standard practice that when the new scooter is delivered, the old one is picked up for refurbishment by the VA and use by another veteran. When the vendor went to pick up Mr. Posey's three-wheeled scooter, Mr. Posey could not produce it.[6] Apparently, at about the same time, he also told the Swissvale Police that it had been stolen, notwithstanding the fact that his (Plaintiffs) brother Elijah had it.

A defamation claim requires, among other things, that the alleged defamatory statement be false, and that it be reasonably understood by the recipient as being defamatory. Marier v. Lance, 2009 WL 297713 (3d Cir. Feb. 9, 2009). In the first place, the statement that Mr. Posey sold the scooter to his brother for $1, 000 could not have been understood by Ms. Proctor as being defamatory of Mr. Posey, since not only was she the only one that heard it, but she testified that from the perspective of the VA, scooter #1 was Plaintiffs to do ...


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