Fisher v. Matthews
| Decision Date | 20 May 2011 |
| Docket Number | Civil Action No. 09–1572. |
| Parties | Thomas M. FISHER, Plaintiffv.Michael MATTHEWS and Shaun Dickmyer, Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
OPINION TEXT STARTS HERE
Don A. Bailey, Harrisburg, PA, for Plaintiff.Frank J. Lavery, Jr., Gary H. Dadamo, Lavery, Faherty, Young & Patterson, P.C., Harrisburg, PA, for Defendants.
AND NOW, this 20th day of May, 2011, upon careful and independent consideration of the defendants' motion for summary judgment (Doc. # 17), and all responses and replies thereto, and after review of the thorough and well-reasoned Report and Recommendation of United States Magistrate Judge Thomas M. Blewitt (Doc. # 26), it is hereby ORDERED that:
1. The defendants' objections to the report and recommendation of the United States Magistrate Judge (Doc. # 31) are OVERRULED;
2. The Report and Recommendation is APPROVED and ADOPTED;
3. Defendants' motion for summary judgment is GRANTED.
On August 14, 2009, Plaintiff, Thomas M. Fisher, a resident at 1842 Hoke Road, North Codorus Township, York County, Pennsylvania, filed, through counsel, the instant civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff properly filed his action in the United States District Court for the Middle District of Pennsylvania since his claims took place in the Middle District of Pennsylvania, i.e. York County, Pennsylvania, and Plaintiff as well as both named Defendants were located in the Middle District of Pennsylvania. Plaintiff paid the filing fee.
This Court has jurisdiction over Plaintiff's action under 28 U.S.C. § 1331 and § 1343. See McNeil v. City of Easton, 694 F.Supp.2d 375, 382 (E.D.Pa.2010).
Plaintiff named the following two (2) Defendants: Police Officer Michael Matthews; and Police Officer Shaun Dickmyer. Defendants Matthews and Dickmyer were employed by the Southwestern Regional Police Department.
Plaintiff avers that on August 17, 2007, Defendants Police Officers Dickmyer and Matthews violated his civil rights when they arrested him on his property. In particular, Plaintiff alleges that Defendants arrested him without probable cause and that they used excessive force on him in violation of his Fourth Amendment rights. Plaintiff also alleges that his First Amendment free speech right was violated when Defendant Matthews retaliated against him when he called Matthews a “dirty cop” and Matthews stuck his finger in his face and told him he was under arrest. Further, Plaintiff raises a malicious prosecution claim against Defendants. (Doc. 1).
After they were served with the Summons and Plaintiff's Complaint, Defendants jointly filed an Answer to the Complaint with Affirmative Defenses on October 19, 2009. (Doc. 7). Discovery was then conducted.
On September 10, 2010, Defendants filed a Motion for Summary Judgment pursuant to Fed.R.Civ. P. 56. (Doc. 17). Defendants simultaneously filed their support brief, a Statement of Material Facts (“SMF”), and an Appendix of Exhibits. (Docs. 18, 19 and 20). On September 24, 2010, Plaintiff filed his response to Defendants' SMF with Exhibits and his opposition brief. (Docs 21, 21–2 and 22).
On September 27, 2010, the Court referred Defendants' Summary Judgment Motion to the undersigned for a R & R. (Doc. 23).
Defendants filed their reply brief on October 8, 2010. (Doc. 24).
Thus, Defendants' Summary Judgment Motion is ripe for disposition. In accordance with the Court's Order, we issue this R & R.
II. Statement of Material Facts.
As stated, Defendants filed their SMF and Plaintiff filed his response to it (Docs. 19 and 21, respectively), as required by Local Rule 56.1, M.D. Pa. Further, as stated, Defendants and Plaintiff submitted exhibits. (Docs. 20 and 21–2). Defendants reference the record to support the facts stated in their SMF and Plaintiff references the record to support his responses to Defendants' SMF as required by Local Rule 56. 1. See Cyrus v. Laino, Civil No. 08–1085, M.D. Pa.; Cyrus v. Freynik, Civil No. 08–2278, M.D. Pa.; Michtavai v. Martinez, 2009 WL 5172962 (M.D.Pa.); Hemingway v. Ellers, 2008 WL 3540526 (M.D.Pa.); Accolla v. U.S., 2009 WL 3625383 (M.D.Pa.), affirmed 369 Fed.Appx. 408 (3d Cir.2010).
The following facts stated in Defendants' SMF (Doc. 19) are admitted by Plaintiff (Doc. 21):
1. Defendant Shaun Dickmyer is a police officer with the Southwestern Regional Police Department. (Doc. 1, ¶ 7; Doc. 7, ¶ 7)
2. Defendant Michael Matthews is a police officer with the Southwestern Regional Police Department. (Doc. 1, ¶ 7; Doc. 7, ¶ 7)
3. Officers Dickmyer and Matthews were police officers with the Southwestern Regional Police Department on August 17, 2007. (Doc. 1, ¶ 7; Doc. 7, ¶ 7)
4. It is admitted that Plaintiff resides at 1842 Hoke Road, North Codorus Township, York County, Pennsylvania.
5. It is admitted that Plaintiff had an automobile repair shop listed at 1842 Hoke Road, North Codorus Township, York County, Pennsylvania.
6. On August 17, 2007, William Lucas and Eugene Rossi, employees of Penn Line Tree Service, went to Plaintiff's property. Lucas and Rossi were trying to determine how long it would take to trim trees near electric lines and to mark it on a map for their employer Pine Line Service. Lucas and Rossi drove on a dirt lane adjacent to Plaintiff's property to look at the lines and they “probably” drove past where Adam Electric Company's (“AEC”) easement went to get a side view and a better angle of another line.
Lucas and Rossi were not employees of AEC and they entered Plaintiff's property on August 17, 2007, without Plaintiff's permission and without permission of AEC.
7. Michael Ward, line superintendent for AEC, testified that AEC was a co-op and that AEC had a right of way easement for the 1842 Hoke Road property owned by Plaintiff. Ward also testified:
Q. Do you believe that the Penn Line employees [Lucas and Rossi] as you're sitting here today had a right to be there pursuant to the easement or the language in the application?
A. [Mr. Ward] Yes.
Q. And why do you feel that?
A. Because of the signed membership it entitles the cooperative and states in here and agents—under the applicant's property at all times for such purposes including without limitations such cutting and trimming of trees and shrubbery. But knowing, knowing that the situation that happened Tom's [Fishers] property earlier where he, the Asplundh crews had went in to get the adjacent trees on the other property we knew that we needed to do, to cut, you know call Tom ahead and Ned knew it. And like I said if anything had to be done with my own acres I gave the (sic) Tom the courtesy that I would call him and let him know we'd be in there.
Q. Did the two Penn Line employees know that to the best of your knowledge?
A. No.
Q. Did the officers now that before they arrested Mr. Fisher to the best of your knowledge?
A. No.
ATTORNEY BAILEY:
Objection, but you can respond. It's okay.
ATTORNEY DADAMO:
No they didn't know to the best of your knowledge that you were supposed to call Mr. Fisher first.
MR. WARD: No.
Ward also stated that AEC did not know Rossi and Lucas were going to Plaintiff's property on August 17, 2007, to look at the trees around the service line to Plaintiff's property to form a bid, and that Lucas and Rossi were not agents or employees of AEC. (Doc. 21–2, Ex. B, NT 54, 87–88).
Rossi testified at Plaintiff's October 22, 2007 preliminary hearing as follows:
Now, in terms of why you were on the property, you were there to visually inspect the work that would have been performed?
A. [Mr. Rossi] Well, we were bidding on work, yes.
Q. So you were actually in the process of gathering information to make a bid to Adams Electric?
A. That's correct.
Q. You didn't have the job at that point, did you?
A No.
Q. Had either you or Mr. Lucas been to this property before?
A. No.
Q. Do you know if your company ever—
A. I don't know if Penn Line ever had any work on that property or not. But when we do bids, we have to go out and look at the line so we can bid on them.
Q. Did anyone from Adams—when you went to this property, did you have any instructions with you—
A. No.
Q. —about contacting the Fishers?
A. No.
Q. You heard me ask the questions before to Mr. Lucas—
A. Right.
Q. —about any agreements with Adams Electric?
A. Right.
Q. You didn't know anything about that?
A. Right, we didn't know anything about that.
Q. Okay. You had a map with you when you got to the property?
A. We had a map of the whole circuit that we were supposed to bid.
Q. So you knew where the easement was, where the right-of-way was?
A. Each pole has its own number.
Q. And where you drove to on the Fisher property, you went—it would be fair to say that you drove past where the right-of-way was. Correct?
A. Well, there is a garage and then a house. The line came across, so we went down the driveway where the line came across and came back out.
Q. But you exceeded where the line was. Correct?
A. Well, probably.
Q. Probably.
A. Like I said—
Q. Just listen to my question. You went past where the easement was. Correct?
A. As far as I know. I am not 100 percent sure of it. Like I said, we had to go down the driveway to look at the line.
(Doc. 21–2, Ex. A, pp. 28–29).
Mr. Lucas testified at Plaintiff's October 22, 2007 preliminary hearing as follows:
Q. You were beyond the easement that Adams Electric has. Correct?
A. [Mr. Lucas] Well, whatever it is, yes.
Q. So it was beyond that?
A. The line was back there.
Q. I am not asking where the line was. Where you drove is beyond where the easement was?
A. It's possible. I wouldn't argue that point.
Q. And why did you go all the way back onto the property here to turn around?
A. To get a side view of the other line that shot up the side of his fence or his neighbor's.
Q. All right.
A. To get a better angle to look at it.
Q. Okay. Now, when...
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