Opinion
Civil Action No. 03-5093.
July 28, 2004
ORDER-MEMORANDUM
AND NOW, this 28th day of July, 2004, the "Motion for Summary Judgment of Defendants, Upper Merion Township and Upper Merion Police Officer Patrick Krouse" is granted, and judgment is entered in favor of defendants and against plaintiff, Fed.R.Civ.P. 56. "Plaintiff's Motion to Strike the Reply Brief of Defendants Krouse and Upper Merion Township" is denied.
"Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. . . . In examining the record, the court gives the non-moving party the benefit of all reasonable inferences from the record." Horn v. Thoratec Corp., ___ F.3d ___, 2004 WL 1613556, at *3 (3d Cir., Jul. 20, 2004) (citations omitted).
Though defendants did not request leave of court prior to filing the reply, see Local Rule of Civil Procedure 7.1(c), leave of court would have been granted.
According to the complaint, on September 12, 2001, in the course of executing a search warrant at plaintiff's home, defendant Patrick Krouse stole cash and jewelry, and thereby violated plaintiff's civil rights, 42 U.S.C. § 1983. The undisputed facts are as follows:
Plaintiff also asserted a claim against Upper Merion Township, but concedes it is time-barred. See Memorandum of Law in Support of Plaintiff's Response in Opposition to Summary Judgment, at 1. Judgment will therefore be entered in favor of Upper Merion Township and against plaintiff.
On September 12, 2001, plaintiff Kim Van Gerve left for work around noon. Van Gerve, N.T. at 16. Before leaving, she observed her jewelry in her dresser drawer, together with $800 to $900 in cash. Id. at 51-52, 65-66. Once she departed, the house was empty. Id. at 139. When she returned at 10:30 that evening, the house was in disarray and plaintiff's jewelry and cash were missing. Id. at 18, 32-33.
Defendant Krouse submitted an affidavit stating that he was one of eight law enforcement officers who executed the search warrant in plaintiff's home. ¶ 5. He denies having taken plaintiff's property. ¶ 15. The house was in disarray when the officers arrived, and plaintiff's son was present. ¶¶ 7, 8. During the search, the officers seized from plaintiff's son drug-related items and $2195. ¶¶ 13, 14.
In her deposition, plaintiff admits that she has no knowledge connecting Krouse or anyone else to the disappearance of the jewelry or cash. Van Gerve, N.T. at 120-21. Even assuming the cash and jewelry were taken in the course of the execution of the search warrant, plaintiff has no evidence that the thief was Krouse, rather than one of the other officers. Without evidence on this issue, there is no credible basis from which to conclude that Krouse took the missing items. Judgment must therefore be entered in favor of defendant and against plaintiff.
Plaintiff claims that it was Krouse, rather than one of the other officers, who took the cash and jewelry based upon the Upper Merion Township's Receipt/Inventory of Seized Property, which states that Krouse seized medication that plaintiff believed was in her bedroom. Van Gerve N.T. at 119. However, Officer Krouse states that he seized the medication from plaintiff's son's bedroom, Affidavit, ¶ 11, and plaintiff's son testified that the medication might have been in his room, James Van Gerve N.T. at 35-36. Even plaintiff, when questioned, could not be certain that she had seen the medication in her bedroom on the morning of the search. Van Gerve N.T. at 130-31.
"Plaintiff's Motion to Strike the Reply Brief of Defendants Krouse and Upper Merion Township" is denied, notwithstanding defendant's failure to request leave of court prior to filing the reply. See Local Rule of Civil Procedure 7.1(c). Leave of court would have been granted had it been requested.