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IN the UNITED STATES DISTRICT COURT for the WESTERN DISTRICT of PENNSYLVANIA DAVID HACKBART, ) ) Plaintiff, ) ) V. ) 2:07Cv1

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IN the UNITED STATES DISTRICT COURT for the WESTERN DISTRICT of PENNSYLVANIA DAVID HACKBART, ) ) Plaintiff, ) ) V. ) 2:07Cv1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DAVID HACKBART, ) ) Plaintiff, ) ) v. ) 2:07cv157 ) Electronic Filing THE CITY OF PITTSBURGH, and SGT. ) BRIAN ELLEDGE, ) ) Defendant. ) MEMORANDUM OPINION March 23, 2009 I. INTRODUCTION Plaintiff, David Hackbart (“Hackbart”), filed the instant action pursuant to 42 U.S.C. § 1983, alleging violation of his rights under the First, Fourth and Fourteenth Amendments to the Constitution of the United States by Defendants, the City of Pittsburgh (the “City”) and Sergeant Brian Elledge (“Elledge”). The parties have filed cross-motions for summary judgment, and the matter is now before the Court. II. STATEMENT OF THE CASE On April 10, 2006, Hackbart was traveling along Murray Avenue in the Squirrel Hill section of the City of Pittsburgh, looking for a place to park his vehicle when he saw an open metered parking space. Plaintiff’s Concise Statement of Undisputed Fact (hereinafter “Pl. CSUF”) ¶¶ 2 - 4; Defendants’ Concise Statement of Material Facts (hereinafter “Def. CSMF”) ¶ 1. As Hackbart was attempting to back into the parking space, a vehicle pulled up behind him and effectively blocked Hackbart’s entry into the parking space. Pl. CSUF ¶ 5; Def. CSMF ¶ 2. The driver of the vehicle behind Hackbart would not back up. Def. CSMF ¶ 6. Frustrated, Hackbart extended his left arm out the window of his vehicle and extended his middle finger to the driver. Pl. CSUF ¶ 6. At that time, Elledge was in uniform traveling along Murray Avenue in the direction opposite of Hackbart, and was driving a marked City of Pittsburgh police vehicle. Pl. CSUF ¶ 9. As Hackbart was giving the driver behind him the finger, he heard Elledge say “Don’t flip him off.” Pl. CSUF ¶ 8; Def. CSMF ¶ 9. Hackbart responded by directing the same gesture toward Elledge. Pl. CSUF ¶ 8; Def. CSMF ¶ 12. Elledge activated the lights on his patrol car and turned around on Murray Avenue so he was traveling in the same direction as Hackbart. Pl. CSUF ¶ 11. Seeing the lights on the police vehicle, Hackbart proceeded approximately one (1) block to a public parking lot where Elledge conducted a motor vehicle stop. Pl. CSUF ¶¶ 12 & 13; Def. CSMF ¶ 15. Elledge approached Hackbart’s vehicle and asked him for his driver’s license and Social Security number. Plaintiff’s Appendix D, Elledge Deposition (hereinafter “Pl. App. D, Elledge Depo”) p. 11. Elledge told Hackbart that he was going to be cited for disorderly conduct “for flipping the guy off . .” Pl. App. D, Elledge Depo p. 12. Elledge issued Hackbart a citation charging him with violation of Pennsylvania’s Disorderly Conduct statute, specifically 18 PA. CONS. STAT. ANN. § 5503(a)(3). Pl. CSUF ¶ 16; Def. CSMF ¶ 16. In Section 20 of the citation, Elledge wrote: “Disorderly Conduct. Driver made an obscene gesture towards me. Flipped me off while driving by. Also flipped off another driver.” Pl. App. E; Pl. App. D, Elledge Depo p. 13. On June 12, 2006, Hackbart attended a hearing before a Magisterial District Judge in Pittsburgh Municipal Court. Pl. CSUF ¶ 20. Elledge did not attend the hearing. Id. The District Judge found Hackbart guilty of Disorderly Conduct and imposed a fine as well as court costs in the total amount of $119.75. Pl. CSUF ¶ 21. Hackbart filed a summary appeal from the judgment of the District Judge with the Allegheny County Clerk of Courts. Pl. CSUF ¶ 22. On October 17, 2006, Hackbart, with counsel, attended a hearing on his summary appeal at which the Assistant District Attorney withdrew the disorderly conduct charge against him. Pl. CSUF ¶¶ 23 & 24. Hackbart then brought the instant action under 42 U.S.C. § 1983 and the First, Fourth and 2 Fourteenth Amendments to the Constitution of the United States against the City and Elledge. Hackbart alleges that the City has a custom, pattern, practice and/or policy of authorizing its officers to issue citations under Pennsylvania’s disorderly conduct statute based upon the use of profane, but not obscene, language and gestures which are expressions protected by the First Amendment. It is further alleged that the City fails to appropriately train, supervise and discipline officers who issue disorderly conduct citations in violation of citizens’ rights of free expression. III. LEGAL STANDARD FOR SUMMARY JUDGMENT Pursuant to FED. R. CIV. P 56(c), summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court’s consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of the Rule, the nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.” FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on 3 unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond “by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial.” Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994). IV. DISCUSSION 1. Section 1983 First and Fourth Amendment Retaliation Claims Section 1983 provides that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 42 U.S.C. § 1983. While § 1983 is not itself a source of substantive rights, Baker v. McCollan, 443 U.S. 137 144 n.3 (1979), the section provides a remedy for violations of constitutional rights where the alleged violation was committed by a person acting under the color of state law. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To establish a prima facie case under § 1983, a plaintiff must show that the action occurred “under color of state law1” and that the action deprived the plaintiff of a constitutional right or a federal statutory right. See Parratt v. Taylor, 451 U.S. 527, 535 (1981). The initial 1 There is no dispute that Elledge was acting under color of state law. 4 question in a Section 1983 action, then, is whether the plaintiff has alleged a deprivation of a constitutional right. See Donahue v. Gavin, 280 F.3d 371, 378 (3d Cir. 2002) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)). Hackbart has alleged a claim against the City and Elledge, pursuant to 42 U.S.C. § 1983, for retaliating against Hackbart for exercising his rights to free expression under the First Amendment. The Supreme Court has held that “[o]fficial reprisal for protected speech ‘offends the Constitution [because] it threatens to inhibit exercise of the protected rights,’ and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” Hartman v. Moore, 547 U.S. 250, 256, (2006) (quoting Crawford-El v. Britton, 523 U.S. 574, 588 n.10 (1998)). In general, to state a constitutional retaliation claim, a plaintiff must prove: (1) that he engaged in constitutionally-protected activity; (2) that the government responded with retaliation; and (3) that the protected activity caused the retaliation. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir. 2004). Whether the activity is protected is a question of law, while the remaining inquiries are questions of fact. Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006). A. Hackbart’s Constitutionally-Protected Activity The United States Supreme Court has long recognized that non-verbal gestures and symbols may be entitled to First Amendment protection.
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