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

Case 1:04-cv-00956-GMS

Document 82

Filed 01/25/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : : : Plaintiffs, : : 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. : CORPORAL B. KURT PRICE; CORPORAL WAYNE WARREN; and SERGEANT CHRISTOPHER D. FORAKER,

C.A.No.04-956-GMS

PLAINTIFFS' 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, plaintiffs Cpl/3 B. Kurt Price, Cpl/3 Wayne Warren and Sgt. Christopher D. Foraker Move that the Court issue an Order granting them summary judgment and finding that (1) Under Count I, as a matter of law - plaintiffs engaged in protected First Amendment free speech by speaking out about the conditions at the FTU, the causes of those conditions and by speaking to the State Auditor, and this protected speech was a substantial or motivating factor

Case 1:04-cv-00956-GMS

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in the retaliation against them. And because defendants have waived their Mt. Healthy affirmative defense, plaintiffs have established liability. A trial on damages is ordered. (2) Under Count II, as a matter of law - plaintiffs engaged in protected First Amendment petitioning of the government for redress of grievances by petitioning the DSP about the conditions at the FTU, the causes of those conditions and by petitioning the State Auditor, and this protected petitioning was a substantial or motivating factor in the retaliation against them. And because defendants have waived their Mt. Healthy affirmative defense, plaintiffs have 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-00956-GMS

Document 82

Filed 01/25/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CORPORAL B. KURT PRICE; CORPORAL WAYNE WARREN; and SERGEANT CHRISTOPHER D. FORAKER, : : : : Plaintiffs, : : 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. :

C.A.No.04-956-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 - plaintiffs engaged in protected First Amendment free speech by speaking out about the conditions at the FTU, the causes of those conditions and by speaking to the State Auditor, and this protected speech was a substantial or motivating factor in the retaliation against them. And because defendants have waived their Mt. Healthy

Case 1:04-cv-00956-GMS

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affirmative defense, plaintiffs have established liability. A trial on damages is ordered. (2) Under Count II, as a matter of law - plaintiffs engaged in protected First Amendment petitioning of the government for redress of grievances by petitioning the DSP about the conditions at the FTU, the causes of those conditions and by petitioning the State Auditor, and this protected petitioning was a substantial or motivating factor in the retaliation against them. And because defendants have waived their Mt. Healthy affirmative defense, plaintiffs have established liability. A trial on damages is ordered.

_________________________________________ THE HONORABLE GREGORY M. SLEET

Case 1:04-cv-00956-GMS

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Filed 01/25/2006

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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.

FTU / Pleadings / Motion for SJ