Free Motion for Summary Judgment - District Court of Delaware - Delaware

Case 1:04-cv-01207-GMS

Document 61

Filed 01/25/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : COLONEL L. AARON CHAFFINCH, : individually and in his official capacity as : Superintendent of the Delaware State Police; : LIEUTENANT COLONEL THOMAS F. : MACLEISH, individually and in his official : capacity as Deputy Superintendent of the : Delaware State Police; DAVID B. MITCHELL, : in his official capacity as the Secretary of the : Department of Safety and Homeland Security of : the State of Delaware; and DIVISION OF : STATE POLICE, DEPARTMENT OF SAFETY : AND HOMELAND SECURITY, STATE OF : DELAWARE, : : Defendants. : SERGEANT CHRISTOPHER D. FORAKER,

C.A.No.04-1207-GMS

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON COUNTS I AND II

Pursuant to Fed.R.Civ.P. 56, for the reasons stated in the accompanying Opening Brief, and there being no disputed issue of material fact, plaintiff Sgt. Christopher D. Foraker Moves that the Court issue an Order granting him summary judgment and finding that (1) Under Count I, as a matter of law - plaintiff engaged in protected First Amendment free speech by filing his lawsuit, and this protected speech was a substantial or motivating factor in the retaliation against him. And because defendants have waived their Mt. Healthy affirmative defense, plaintiff has established liability. A trial on damages is ordered. (2) Under Count II, as a matter of law - plaintiff engaged in protected First Amendment

Case 1:04-cv-01207-GMS

Document 61

Filed 01/25/2006

Page 2 of 5

petitioning of the government for redress of grievances by filing his lawsuit, and this protected petitioning was a substantial or motivating factor in the retaliation against him. And because defendants have waived their Mt. Healthy affirmative defense, plaintiff has established liability. A trial on damages is ordered.

Respectfully Submitted, THE NEUBERGER FIRM, P.A. /s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Dated: January 25, 2006 Attorneys for Plaintiff

Case 1:04-cv-01207-GMS

Document 61

Filed 01/25/2006

Page 3 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : COLONEL L. AARON CHAFFINCH, : individually and in his official capacity as : Superintendent of the Delaware State Police; : LIEUTENANT COLONEL THOMAS F. : MACLEISH, individually and in his official : capacity as Deputy Superintendent of the : Delaware State Police; DAVID B. MITCHELL, : in his official capacity as the Secretary of the : Department of Safety and Homeland Security of : the State of Delaware; and DIVISION OF : STATE POLICE, DEPARTMENT OF SAFETY : AND HOMELAND SECURITY, STATE OF : DELAWARE, : : Defendants. : SERGEANT CHRISTOPHER D. FORAKER,

C.A.No.04-1207-GMS

ORDER This ______ day of _________________, 2006, there being no material issue in dispute, pursuant to Fed.R.Civ.P. 56, the Court grants summary judgment in favor of plaintiff Sgt. Christopher D. Foraker on Counts I and II. It is hereby Ordered that(1) Under Count I, as a matter of law - plaintiff engaged in protected First Amendment free speech by filing his lawsuit, and this protected speech was a substantial or motivating factor in the retaliation against him. And because defendants have waived their Mt. Healthy affirmative defense, plaintiff has established liability. A trial on damages is ordered. (2) Under Count II, as a matter of law - plaintiff engaged in protected First Amendment

Case 1:04-cv-01207-GMS

Document 61

Filed 01/25/2006

Page 4 of 5

petitioning of the government for redress of grievances by filing his lawsuit, and this protected petitioning was a substantial or motivating factor in the retaliation against him. And because defendants have waived their Mt. Healthy affirmative defense, plaintiff has established liability. A trial on damages is ordered.

_________________________________________ THE HONORABLE GREGORY M. SLEET

Case 1:04-cv-01207-GMS

Document 61

Filed 01/25/2006

Page 5 of 5

CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on January 25, 2006, I electronically filed this Motion with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:

Robert Fitzgerald, Esquire Montgomery McCracken Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109 Richard M. Donaldson, Esquire Montgomery McCracken Walker & Rhoads, LLP 300 Delaware Avenue, Suite 750 Wilmington, DE 19801

/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.

Foraker / Pleadings / Motion for SJ