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FREEMAN v. MCKELLAR

May 27, 1992

ARTHUR FREEMAN
v.
STEPHEN McKELLAR, WILLIE MAE JAMES LEAKE, WILLIAM KOTERBA, WILLIAM WALDREN and CITY OF CHESTER



The opinion of the court was delivered by: BY THE COURT; JAY C. WALDMAN

 WALDMAN, J.

 May 27, 1992

 BACKGROUND

 Plaintiff filed this suit against the City of Chester ("the City") and various City officials pursuant to 42 U.S.C. § 1983, alleging that they violated his First and Fourteenth Amendment rights in retaliating against him for testimony he provided before a Delaware County grand jury. Plaintiff also asserts state law claims for wrongful discharge, defamation and violation of the Pennsylvania Whistleblower Act. Presently before the court is defendants' Motion to Dismiss Plaintiff's Complaint for failure to state a cognizable claim.

 I. STANDARD OF LAW

 In deciding defendants' motion to dismiss for failure to state a cognizable claim, the court must accept as true all of the plaintiff's factual allegations and draw from them all reasonably favorable inferences. D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984). A case should not be dismissed for failure to state a claim unless it clearly appears that no relief can be granted under any set of facts that could be proved consistent with the plaintiff's allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).

 A heightened standard of pleading is applicable to § 1983 claims for which a plaintiff must provide allegations sufficiently specific to provide a defendant with notice of the particular acts for which he may be held liable. See Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 67-68 (3d Cir. 1986); United States v. City of Philadelphia, 644 F.2d 187, 204-05 (3d Cir. 1980); Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir. 1976) Quitmeyer v. Southeastern Pennsylvania Transportation Authority, 740 F. Supp. 363, 366 (E.D. Pa. 1990).

 FACTS

 Viewed in the light most favorable to plaintiff, the pertinent facts are as follow. Plaintiff is, and between April 1990 and June 1991 was, a per diem employee for the Department of Parks, Public Property and Recreation of the City of Chester ("the Department"). Defendant McKellar was a City Councilman and the director of the Department. Between February and May 1991, McKellar ordered plaintiff and a co-worker to remodel his home on City time with materials which were the property of the City.

 Plaintiff and his co-worker complained to their supervisor about having to perform this work, but were instructed to obey McKellar's directions. In May 1991, Delaware County authorities began an investigation into possible misuse of City funds. One aspect of the investigation centered on the remodelling of McKellar's home. On May 6, 1991, plaintiff and his co-worker received subpoenas to appear before a Delaware County grand jury on June 6, 1991.

 McKellar contacted plaintiff a few days before he was to testify and told him that McKellar had obtained an attorney to represent plaintiff before the grand jury. McKellar then accompanied plaintiff to consult with that attorney. At that meeting, McKellar threatened plaintiff with the loss of his job if he were to tell the grand jury about the renovations performed or the misuse of City materials. Plaintiff's co-worker had been fired two days earlier when he refused the services of the attorney McKellar had obtained for him and agreed to cooperate with the authorities. McKellar offered to reward plaintiff with a full-time City position with increased pay and benefits if he would agree to place blame for the misappropriation of City property upon his co-worker.

 Defendant was not called before the grand jury on June 6, 1991, but received another subpoena to testify on June 27, 1991. McKellar visited plaintiff in the interim and sought to ensure that he would help exonerate McKellar. On June 27, 1991, plaintiff truthfully testified before the grand jury. Immediately before doing so, plaintiff informed the lawyer whom McKellar had retained that his services were not needed as plaintiff had hired other counsel to represent him.

 On June 28, 1991, plaintiff received a letter from McKellar on Department stationery stating that plaintiff was terminated for admitting to the theft of City property. By letter on July 3, 1991, again with an official Department letterhead, McKellar advised plaintiff that only City Council had authority to dismiss employees and thus he was not in fact discharged but was suspended without pay. The same day, a member of the City Council presented a motion to reinstate plaintiff and his co-worker until the ongoing investigation of the misuse of public property was complete. Defendant Council members Koterba, Waldren, Leake and McKellar declined to second the motion and thus it was not acted upon.

 On July 3, 1991, McKellar made a public statement that plaintiff had been terminated for "stealing" City property and would "continue to steal" if reinstated, and on July 20, 1992 that plaintiff was a "career criminal." On July 18, 1991, the grand jury recommended the filing of criminal charges against McKellar. On August 26, 1991, after McKellar was replaced as Department director, plaintiff was reinstated as an active employee.

 In Counts I and VIII respectively, plaintiff asserts a § 1983 claim against McKellar and the City for violating his First and Fourteenth Amendment rights. In counts II, III and IV, plaintiff asserts claims against McKellar for violating the Pennsylvania Whistleblower law, wrongful discharge and defamation. In Counts V through VII, plaintiff alleges that defendants Leake, Koterba and Waldren violated plaintiff's constitutional rights and the state whistleblower law, and wrongfully discharged him. *fn1"

 DISCUSSION

 A. Count I

 To state a cognizable § 1983 claim, a plaintiff must allege that he was deprived of a federally secured right by a defendant acting under color of state law. See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978). As an official of the City of Chester, McKellar's purported termination and subsequent suspension of plaintiff were acts under color of state law. McKellar's fellow councilmen also were state actors. Plaintiff alleges that he has been deprived of a liberty right under the Fourteenth Amendment and a First Amendment right. *fn2"

 1. Plaintiff's Liberty Interest

 A government employee's liberty interest is implicated when he has been terminated and the government has made "a charge against him that might seriously damage his standing and associations in the community" or "imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities." Board of ...


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