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RUHLMAN v. BARGER

December 30, 1976

David K. RUHLMAN
v.
James D. BARGER, Patrick J. Hankinson and Robert B. Gorman



The opinion of the court was delivered by: KNOX

 KNOX, District Judge.

 This is a civil rights action brought pursuant to 42 U.S.C. §§ 1983 and 1985 seeking a declaratory judgment, damages, and injunctive relief. The plaintiff is David K. Ruhlman, a Sergeant in the Pennsylvania State Police, presently assigned to the Erie Barracks. The defendants are Colonel James D. Barger, Commissioner of the Pennsylvania State Police, Captain Patrick J. Hankinson of the State Police in Erie, and Lieutenant Robert B. Gorman of the State Police in Franklin, Pa. The court has jurisdiction of this action under 28 U.S.C. § 1343 and 42 U.S.C. § 1981.

 The matter is now before the court on defendants' motion to dismiss plaintiff's amended complaint. The parties have submitted briefs on the question and the court heard the parties' oral arguments on September 23, 1976.

 On February 19, 1975 plaintiff was transferred from the Franklin, Pa. substation of the State Police to the Erie Barracks, allegedly for punitive reasons. Plaintiff charges in his amended complaint that defendants conspired to impose this transfer on him as a form of punishment because he had (1) opposed the use of a quota system for arrests and traffic citations at the Franklin substation (2) joined with other troopers at Franklin in revealing the quota system to a local newspaper reporter and (3) refused to refrain from gambling with other police personnel at certain social gatherings. The order transferring plaintiff to Erie, issued February 19, 1975, became effective on March 6, 1975.

 Plaintiff claims that the defendants' actions in planning and issuing the transfer order violated his rights of free speech and assembly under the First Amendment, and denied him due process of law under the Fourteenth Amendment. The amended complaint also alleges that under State Police Regulations a trooper is entitled to administrative due process whenever punishment is imposed, and that defendants here used the transfer as a "subterfuge" for punishment, in order to circumvent plaintiff's due process rights under the Regulations.

 I

 Initially, the court notes that defendants' actions in issuing any transfer order, in the course of their duties, would constitute conduct "under color of state law" within the meaning of 42 U.S.C. § 1983. Thus, the necessary state action is present in this case alleging deprivation of plaintiff's constitutional rights.

 In ruling on defendants' motion to dismiss, the court adopts the well-accepted rule that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). Therefore, we must consider all facts alleged in the complaint and every reasonable inference to be derived therefrom in the light most favorable to plaintiff. For the reasons stated below, the defendants' motion will be denied.

 II

 A. Deprivation of Liberty

 The first issue presented is whether plaintiff's transfer constituted a deprivation of protected free speech in violation of the First Amendment. We must examine this claim in light of the Supreme Court's opinion in Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968) and subsequent cases.


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