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BLANDING v. PENNSYLVANIA STATE POLICE

December 17, 1992

JACKSON D. BLANDING, Plaintiff,
v.
PENNSYLVANIA STATE POLICE, ET AL., Defendants.



The opinion of the court was delivered by: LOWELL A. REED, JR.

 Reed, J.

 December 17, 1992

 This is a case of alleged racial discrimination on the part of the defendants, the Pennsylvania State Police, Lt. Thomas O. Marakovits, and Commissioner Ronald M. Sharpe. Presently before me are two motions for summary judgment. Defendants' seek summary judgment on all claims (Document No. 12), and plaintiff seeks partial summary judgment on his claim arising out of 42 U.S.C. § 1983 (Document No. 13).

 This Court has jurisdiction over this case pursuant to 42 U.S.C. § 2000e(5)(f)(3) and 28 U.S.C. §§ 1331 and 1343(a)(3) and (4).

 For the reasons discussed below, defendants' motion for summary judgment will be granted, and plaintiff's motion for summary judgment will be denied.

 I. FACTUAL BACKGROUND

 Plaintiff Jackson D. Blanding ("Blanding"), a black male, was a probationary trooper with the Pennsylvania State Police (the "PSP"), until he was dismissed on December 9, 1988. Blanding alleges that his dismissal from the PSP was racially discriminatory and violated his right to procedural due process. Blanding enlisted in the PSP on June 29, 1987. He was a cadet at the PSP Academy during the first five months of his enlistment. After graduating from the Academy on December 1, 1987, Blanding became a "probationary trooper." All graduates of the PSP Academy remain probationary troopers for an eighteen-month period. Blanding was assigned to Bethlehem Troop (Bucks, Lehigh and Northampton counties) where he worked until his dismissal one year later.

 Blanding's dismissal from the PSP arose from an off-duty incident which occurred on June 16, 1988 at the apartment he shared with his girlfriend at the time, Lisa Serafine ("Serafine"), a white female. There are two versions of the June 16, 1988 incident.

 According to Serafine, she and Blanding were in a heated argument when Blanding physically attacked her and pointed his loaded off-duty revolver at her head inside their apartment. The dispute spilled out onto the street, and a group of youths intervened in the argument, apparently to come to Serafine's aid. Blanding exchanged blows with one of the youths and then entered the apartment to retrieve his revolver. Blanding returned outside with his revolver tucked into his pants, and shots were fired in his direction.

 Almost immediately after the shooting, members of the Philadelphia Police Department converged on the scene and took statements from Blanding, Serafine and other witnesses. The police determined that Blanding never fired any shots.

 As a probationary trooper, Blanding was dismissed according to a process described in Field Regulation 3-3 ("F.R. 3-3"). This process began when Blanding reported the incident to his supervisor. Because the incident involved a shooting, Lieutenant Thomas O. Marakovits ("Marakovits") of the PSP's Bureau of Professional Responsibility ("BPR") was assigned to investigate.

 Marakovits first interviewed Blanding regarding the incident on June 22, 1988. Marakovits concentrated on the events which occurred outside Blanding's apartment because, he says, Blanding's report to his supervisor did not discuss the events which occurred prior to the shooting. At the interview, Marakovits requested that Blanding prepare a written statement, and Blanding complied. In addition, Marakovits received a copy of the Philadelphia Police report, interviewed the Philadelphia detective who investigated the incident, and interviewed one of Blanding's neighbors and a friend of Serafine's. Serafine had since moved to Florida, and Marakovits interviewed her over the telephone.

 On July 6, 1988, Marakovits interviewed Blanding a second time. Marakovits informed Blanding that he had received information from other sources which was inconsistent with Blanding's version of the incident. He asked Blanding questions about the events which occurred inside the apartment prior to the shooting. Because Blanding had not discussed these events in his first written statement, Marakovits allowed Blanding to submit a second written statement to provide a complete description of the entire incident. Soon thereafter, Blanding submitted a second written statement to Marakovits in which he described the argument with Serafine which occurred inside the apartment.

 Marakovits then prepared a "General Investigation Report" ("GI") which contained a detailed account of the investigation, summaries of witnesses interviewed, and relevant documents. Marakovits offered no opinion as to whose version of the incident he found more credible nor did he make any recommendation as to what discipline, if any, Blanding should receive.

 Blanding claims that the GI contains several errors. He claims that: (1) the account of the July 6, 1988 interview incorrectly states that Blanding admitted to having smoked marijuana with Serafine when actually he only admitted to being present on two occasions when marijuana was being smoked, (2) the statement that Blanding failed to identify himself as a police officer is incorrect, (3) the statement that Marakovits provided Blanding with the Philadelphia Police Department's report on the incident is incorrect, and (4) the account of the July 6, 1988 incorrectly states that Blanding did not discuss Serafine's threat to contact his superiors.

 Marakovits submitted the GI to his supervisor who forwarded it to Blanding's Troop Commander, Captain Robert G. Werts ("Werts"). Based on the contents of the GI, Werts found that Blanding had violated four internal PSP regulations:

 
(2) F.R. 1-1, Section 1.02 - Conformance to Laws
 
(3) F.R. 1-1, Section 1.28 - Carrying Firearm/Weapon and Ammunition
 
(4) F.R. 1-2, Section 2.31 - Police Action - Off Duty.

 Werts then prepared a Disciplinary Action Report ("DAR") and issued it to Blanding. Blanding had the option of being represented by an attorney at the issuance of the DAR, but it appears from the record that he declined. See Defendants' Motion for Summary Judgment, at 6; Blanding's Motion for Summary Judgment, at 4. Blanding was not entitled to receive copies of the GI or the supporting documents. However, Marakovits testified at his deposition that he did apprise Blanding of the information he had received from the Philadelphia Police and Serafine which was inconsistent with Blanding's version of the events. Under F.R. 3-3, Blanding was permitted to make a written response to the DAR within ten days of its receipt. Although he was late, Blanding did in fact respond to the DAR.

 Meanwhile, Werts forwarded the DAR to the Department Disciplinary Officer, Captain Ronald A. Rostalski ("Rostalski") for a decision on the penalty to be imposed. Although it is not customary for the DAR to contain recommendations from the troop commander, Werts included a recommendation that Blanding be retained. Rostalski testified that, because it was his job to ensure uniformity in the discipline meted out by the PSP, he gave no credit whatsoever to Werts' recommendation. Based on the GI and the DAR, Rostalski determined that Marakovits' telephone interview of Serafine was inadequate and that an in-person interview of her as well as her notarized statement would be better. Thus, on November 16, 1988, Marakovits traveled to Florida, where he interviewed Serafine face-to-face and obtained her notarized statement. He submitted a supplemental GI to the BPR summarizing the interview and attaching the notarized statement.

 After reviewing the new material, Rostalski recommended to Deputy Commissioner Glenn A. Walp ("Walp") that Blanding be dismissed. Walp concurred, and their recommendations were forwarded to Commissioner Ronald M. Sharpe ("Sharpe"), who ultimately approved Blanding's dismissal. On December 9, 1988, Werts presented a memorandum to Blanding informing him of his dismissal. Blanding had no right to appeal his dismissal.

 Blanding has brought this action against the PSP for racial discrimination in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). He is suing Marakovits for racial discrimination in violation of 42 U.S.C. § 1981. And, he is suing Sharpe pursuant to 42 U.S.C. § 1983 for dismissing him from his position with the PSP in violation of his Fourteenth Amendment right to procedural due process. Blanding seeks declaratory relief, reinstatement, back pay, front pay, all of the ...


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