Boyce v. Eggers

Page 139

513 F.Supp.2d 139

Anna BOYCE and Nicholas J. Salamone, Plaintiffs, v. Jamey EGGERS, et al., Defendants.

Civil Action No. 05-2431 (JBS).

United States District Court, D. New Jersey.

June 25, 2007.

F. Michael Daily, Jr., Esq., Westmont, NJ, for Plaintiffs.

Michael O. Kassak, Esq., White & Williams, Esqs., Cherry Hill, NJ, for Defendants Brian Conte, Brian Beppel and Borough of Mount Ephraim.

OPINION

JEROME B. SIMANDLE, District Judge.

I. INTRODUCTION

This matter is before the Court on the motion for summary judgment by Defendants Brian Conte, Brian Beppel and Borough of Mount Ephraim ("the moving defendants" or "the Mount Ephraim Defendants"), pursuant to Fed.R.Civ.P. 56. For the reasons explained below, the Court shall grant the motion.

II. BACKGROUND

This case arises out of Plaintiffs' distribution of flyers to residents of Mount Ephraim and a criminal complaint filed against, them by Jamey Eggers, a defendant who has not appeared in this action. Plaintiffs allege that the moving defendants encouraged Eggers to file a complaint against them in retaliation for Plaintiffs' political activities, in violation of the First Amendment. The Mount Ephraim defendants filed this motion for summary judgment, arguing that they have no culpability for the complaint a private citizen filed.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

In deciding whether there is a disputed issue of material fact, a court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to "that party; in other words, "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505; Brewer v. Quaker State Oil Ref Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted). The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party would have the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Country Floors v. P'ship of Gepner and Ford, 930 F.2d 1056, 1061-63 (3d Cir.1991). "The burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548.

"[T]he nonmoving party may not, in the face of a showing of a lack of a genuine issue, withstand summary judgment by resting on mere allegations or denials in the pleadings; rather, that party must set forth `specific facts showing that there is a genuine issue for trial,' else summary judgment, If appropriate,' will be entered." U.S. v. Premises Known as 717 S. Woodward St., Allentown, Pa., 2 F.3d 529, 533 (3d Cir.1993) (quoting Fed.R.Civ.P. 56(e)) (citations omitted).

Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion; against a party who fails to make a showing 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (citation omitted).

III. QUALIFIED IMMUNITY

Defendants' motion for summary judgment includes a claim that the individual officers (Beppel and Conte) are entitled to qualified immunity.

"Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The qualified immunity standard "gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 US. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (internal quotations omitted). In determining qualified immunity, we first ask whether "the facts alleged, viewed in the light most favorable to the party asserting the injury, show that the officer's conduct violated a constitutional right." Curley v. Klem, 298 F.3d 271, 277 (3d Cir.2002). If so, we then ask whether it "would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. (quoting Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

Gilles v. Davis, 427 F.3d 197, 203-04 (3d Cir.2005). The first step of the qualified immunity analysis, therefore, is to determine whether the conduct alleged, when the facts are viewed in the light most favorable to the plaintiff, states" a claim for a violation of a constitutional right. Accordingly, the Court shall integrate its qualified immunity analysis into its discussion of each of Plaintiffs claims on which Defendants seek summary judgment, below.

IV. FACTS

The facts set forth here are admitted facts and other facts that will be viewed in the light most favorable to the non-moving parties, the plaintiffs. The plaintiffs are Anna Boyce ("Boyce") and Nicholas Salamone, Jr. ("Salamone"), residents of Mount Ephraim who had been engaged in distributing information critical of the Mount Ephraim administration shortly before an election. The moving defendants are patrolman Brian Conte, Police Captain Brian Beppel and the Borough of Mount Ephraim. At the time of these incidents, Beppel was acting Captain and the head of the police department. (Beppel Dep. at 26.)

On the evening of Friday, May 9, 2003, Salamone was driving Boyce around residential neighborhoods so they could deliver flyers to residents prior to the Tuesday, May 13 municipal election. Boyce delivered two flyers to the home of Jamey Eggers, as well as to several other residents on her block. Each flyer was printed on the letterhead of the "Mount Ephraim Civic Association" and addressed matters of public concern. The first alleged that hazardous waste was present on a public softball field and the second, "Our Current Issues with the Borough of Mount Ephraim Mayor & Commissioners," included a lengthy list of complaints against the Borough's administrators. At the time, Jamey Eggers was the Borough Clerk of Mount Ephraim and her father, William Eggers, was a Commissioner of the Borough.

Earlier that evening Defendant Conte had observed Plaintiffs driving through a municipal park after hours. He then followed them in his cruiser from street to street. At about 11:00 p.m. Conte observed Anna Boyce approach Jamey Eggers's home and the truck Boyce had been in drive off. After Boyce left flyers under Eggers's mailbox, Conte approached the home and informed the residents that Boyce had delivered something to them. He did not approach the residents of any of the other homes to which Boyce had delivered her flyers. Kelly Eggers, Jamey's sister, retrieved the flyers, looked at them, was not concerned, and handed them to Conte.

The Monday after the incident Eggers went to the police station. Beppel testified that he spoke with her and explained how she could file criminal charges. Beppel also claims that he told her the police department did not think the conduct of Plaintiffs was sufficient for the police to charge them with any crime. Plaintiffs point out that no one in the police department discouraged Eggers from filing the criminal complaint on her own. Eggers then wrote out a statement in Beppel's presence, which he signed to indicate he saw her prepare it.

Eggers proceeded to the office of municipal court clerk Joan Dallas, who accepted the criminal complaint and issued process. Later that day, Beppel served the criminal complaints and summonses on Plaintiffs. There was no arrest. Those charges were eventually dismissed by Mount Ephraim Municipal Court. Plaintiffs then filed this one-count Complaint, alleging generally that Defendants violated their First Amendment rights to free speech. The Complaint does not articulate a more particular theory.

Boyce said at her deposition that she was unsure whether the receipt of the summons and the criminal charges actually caused her to refrain from any political activity:

Q: Did the receipt of these complaints cause you not to go out and distribute flyers that night?

A: No, I don't think so. No — oh, wait a minute. I think I was — I think I was a little scared. Was it that night? I thought maybe I was doing something wrong. Can I — did I — I think I gave some that night. I don't remember, honey, really, you know.

(Boyce Dep. at 67.)¹ On the other hand, Salamone clearly indicated that he refrained from distributing flyers that evening, the night before the election, because of the criminal charges against...