disciplinary action without providing him notice and an opportunity to be heard as would be required with a permanent tenured employee. See Blanding vs. Pennsylvania State Police, 811 F. Supp. 1084 (E.D. Pa. 1992) (Reed, J.); Sweeting vs. Commonwealth, Pennsylvania State Police, 95 Pa. Commw. 45, 503 A.2d 1126 (1986); Marino vs. Commonwealth, Pennsylvania State Police, 87 Pa. Commw. 40, 486 A.2d 1033 (1985). Because Michael Boykin had no interest protected by the Due Process Clause he was not denied procedural due process. Furthermore, Michael Boykin suffered no loss of property because he was paid by the University after his acquittal for his wages during the period of suspension.
We will now address the Boykins' § 1983 claim under Count II against Defendants Downs and Samsel. In their brief in opposition to the Commonwealth Defendants' motion for summary judgment, the Boykins state that they have decided to discontinue their claims against Downs. We agree that the Boykins cannot maintain any cause of action against Downs and we will grant summary judgment in Downs's favor for the reasons stated below.
The Boykins' claims against Bloomsburg University employees Downs and Samsel relate to an administrative internal complaint Samsel lodged with the University against Michael Boykin for allegedly harassing conduct that occurred during the afternoon of December 18, 1992. On December 23, 1993, after Michael Boykin returned to work at the University, a fact finding hearing was held by Dr. Parrish to resolve the complaint. Downs was called as a witness to testify about his observation of the incident. As a result of the proceeding, Michael Boykin was instructed to refrain from having contact with Samsel except for purposes of official business. No disciplinary action was taken against Michael Boykin.
The Boykins have failed to present a viable § 1983 claim against either Samsel or Downs. Not every action taken by a state employee is deemed to have occurred under color of state law. Action is "under color of state law" only when the alleged wrongdoer is acting by virtue of his state authority. Hughes vs. Meyer, 880 F.2d 967, 971 (7th Cir. 1989).
The Court of Appeals for the Third Circuit has held that liability cannot be imposed for damage caused by a private citizen or a public official exercising the right to report to an appropriate agency what he or she believed to be improper conduct inducing legislative, administrative, or judicial action. Brownsville Golden Age Nursing Home, Inc. vs. Wells, 839 F.2d 155, 159-160 (3d Cir. 1988).
The furnishing of information by Downs and Samsel to the proper authorities concerning Michael Boykin's alleged wrong-doing were the acts of private individuals and not those of state actors. See Hughes, 880 F.2d at 972. Moreover, no protected interest of Michael Boykin was infringed upon by Samsel's complaint and the administrative proceeding. No adverse action was taken against Michael Boykin.
To the extent the Boykins contend that Samsel and Downs provided false information during the proceedings and injured Michael Boykin's reputation, Michael Boykin had no liberty or property interest in his reputation implicated in this factual scenario. Defamation is not actionable under a § 1983 claim in this context. Paul vs. Davis, 424 U.S. 693, 713, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). We will grant summary judgment in their favor on Count II.
We will now address the Boykins' § 1983 claim in Count II against Defendant Walker. The Boykins' only claim against Walker is based upon the publication of the BeSafe hotline messages which referred to the arrest and criminal charges against Michael Boykin and the University letter to University students and their families on January 12, 1993, relating to a number of safety issues including the status of the charges pending against Michael Boykin. The only information published was information from public records and therefore no constitutional right or violation thereof is implicated. Moreover, because this claim sounds in defamation, it is not cognizable in a § 1983 action. Paul, 424 U.S. at 713. See also Scheetz vs. The Morning Call, Inc., 946 F.2d 202 (3d Cir. 1991), cert. denied, 502 U.S. 1095, 112 S. Ct. 1171, 117 L. Ed. 2d 417 (1992). We will grant summary judgment on Count II as to Walker.
We will now address the Boykins' § 1983 claim on Count II against Barnes and Parrish. This is the only count in the Boykins' complaint alleging a constitutional violation that appears to apply to Barnes and Parrish.
The Boykins allege that Barnes exerted some improper influence upon the victim, Virginia McAfee, causing her to create false charges against Michael Boykin. Although not as explicit, the same sort of allegations appear to be asserted against Parrish. It is unclear whether the Boykins are pursuing a theory of a due process violation under a false arrest-false imprisonment theory or under a malicious prosecution theory.
Count II of the Boykins' complaint does not specify the basis for a constitutional right to assert these claims and is therefore insufficient as a matter of law. The Boykins must assert a specific federal constitutional or statutory right in order to maintain a claim under the civil rights laws. Brown vs. Borough of Mahaffey, Pennsylvania, 35 F.3d 846, 850 (3d Cir. 1994), citing Albright vs. Oliver, U.S. , 114 S. Ct. 807, 811, 127 L. Ed. 2d 114 (1984).
Because the Boykins do not specify the specific constitutional right relied upon in Count II of their complaint but only generally refer to open-ended conceptions of due process and equal protection, their claims are insufficient as a matter of law. See also Perez-Ruiz vs. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994).
Even if the Boykins had set forth an adequate § 1983 claim based upon either a false arrest-false imprisonment, malicious prosecution, or abuse of process theory, their claim would still fail. The cornerstone of a false arrest-false imprisonment claim is that the process used for the arrest was void on its face. Lynch vs. Johnston, 76 Pa. Commw. 8, 13, 463 A.2d 87, 89 (1983). It is not enough that the charges were unjustified. Id. The Boykins must show that the arrest was made without probable cause and for an improper purpose. See Mendoza vs. K-Mart, Inc., 587 F.2d 1052, 1059 (10th Cir. 1978). Similarly, in a malicious prosecution or abuse of process case the basic notion is that a defendant initiated proceedings for an improper or malicious purpose unrelated to securing the just administration of our laws. Bell vs. Brennan, 570 F. Supp. 1116, 1118 (E.D. Pa. 1983) (Giles, J.).
However, neither Barnes nor Parrish were responsible for the arrest of Michael Boykin. The Boykins have presented no evidence that either Barnes or Parrish took any action for an improper purpose. The Boykins have presented nothing more than speculation on this issue.
Even if we were to construe the Boykins' constitutional claim as alleging a substantive due process violation, the evidence in this case does not demonstrate any conduct rising to the level of "shocking the conscience" sufficient to establish such a claim. See Fagan vs. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994).
Also, the individual Commonwealth Defendants are entitled to qualified immunity. "Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow vs. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).
We are of the view that the actions taken by the Commonwealth Defendants did not violate any clearly established rights of the Boykins. We will grant summary judgment on Count II as to each of the Commonwealth Defendants.
We will now address Count III of the Boykins' complaint as to the Commonwealth Defendants other than Bloomsburg University. Count III alleges a violation of 42 U.S.C. § 1985 by the Defendants' participation in a conspiracy that hindered the due course of justice and was calculated to deny Michael Boykin equal protection because of his race. Count III also alleges that the Defendants knew of the aforementioned violations and neglected to prevent them, in violation of 42 U.S.C. § 1986.
42 U.S.C. § 1985 prohibits public and private conspiracies which deprive persons of constitutionally protected rights. Rogers vs. Mount Union Borough by Zook, 816 F. Supp. 308, 314 (M.D. Pa. 1993) (Caldwell, J.).
Section 1986 allows a cause of action against the party who had knowledge of a § 1985 conspiracy, had the power to prevent it, and then failed to do so. Therefore, transgressions of § 1986 by definition depend upon a preexisting violation of § 1985. Rogin vs. Bensalem Township, 616 F.2d 680, 696 (3d Cir. 1980), cert. denied, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737. Mere conclusory allegations that a conspiracy existed will not survive a motion to dismiss. Id.
The Boykins have presented no evidence to support their claim that a conspiracy existed to deprive them of their civil rights. Rather, only suspicions, speculation, and feelings support their claim of conspiracy. This simply is not sufficient. We will grant summary judgment on Count III of the Boykins' complaint as to each of the Commonwealth Defendants.
We will now address Counts IV and V of the Boykins' complaint. Count IV contends that the Defendants unlawfully discriminated against Michael Boykin because of his race and sex, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e). Count V alleges a violation of the Pennsylvania Human Relations Act, 42 Pa.C.S.A. § 950, on the basis of race and sex.
Michael Boykin filed a complaint with the Pennsylvania Human Relations Commission on June 16, 1993, under No. E-65226D. This complaint was crossfiled with the Equal Employment Opportunity Commission at No. 17F-933161. Michael Boykin then filed an amended complaint on July 19, 1993, which superseded his first one. Michael Boykin later withdrew the Pennsylvania Human Relations Commission charge and allowed the Equal Employment Opportunity Commission charge to continue. Michael Boykin subsequently received a right to sue letter from the Equal Employment Opportunity Commission on charge No. 17F-933161.
The charge contained within the amended complaint before the EEOC alleges that Michael Boykin was discriminated against based on his race when he was suspended and subjected to unequal conditions of employment on December 22, 1992.
The charge filed with the Equal Employment Opportunity Commission did not involve any claims against Wright, Downs, Samsel, or English. It arguably involved claims against Parrish, Manning, and Ausprich relating to Michael Boykin's suspension, a claim against Walker concerning the publicity, and a charge against Barnes relating to her initial investigation of the sexual misconduct.
Title VII prohibits an employer from discriminating against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. See 42 U.S.C. § 2000e-2. As set forth in Texas Department of Community Affairs vs. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981):
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. [citations omitted].
Id. at 252-253. Proof of discriminatory motive is critical. International Brotherhood of Teamsters vs. United States, 431 U.S. 324, 335 n. 15, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). The Boykins bear the burden of establishing that the Commonwealth Defendants' actions were motivated by race. St. Mary's Honor Center vs. Hicks, U.S. , 113 S. Ct. 2742, 2747-9, 125 L. Ed. 2d 407 (1993). Title VII does not protect employees from unfair employment actions but only from employment actions motivated by the person's race or other protected status. See Dodge vs. Susquehanna University, 796 F. Supp. 829, 836 (M.D. Pa. 1992) (McClure, J.).
Title VII only applies to the actions of an employer. Lt. Barnes was not Michael Boykin's employer. Rather, she was a police officer conducting a criminal investigation who happened to be employed by Bloomsburg University. It is inconceivable within the framework of Title VII that a claim of this sort can be brought based upon Barnes's investigation.
The Boykins have presented no evidence that any action was taken with respect to the criminal investigation, the suspension, or the publicity surrounding the arrest of Michael Boykin which would implicate racial discrimination. Rather, the Boykins only set forth speculative allegations and no facts upon which racial discrimination by any of the Commonwealth Defendants can be based. The facts in this case clearly establish legitimate reasons for each of the actions taken with respect to the Boykins. We will grant the Commonwealth Defendants' motion for summary judgment on this Count as well.
We will now address the Boykins' claim under the Pennsylvania Human Relations Act. This claim is totally without merit. Michael Boykin did not receive a right to sue letter from the Pennsylvania Human Relations Commission as contemplated by the Pennsylvania Human Relations Act. Rather, Michael Boykin withdrew his charge under the Pennsylvania Human Relations Act and therefore abandoned any right to pursue that claim. We will grant summary judgment on this claim as well.
We will now address Count X of the Boykins' complaint. This Count alleges violations of the Boykins' first, fourth, fifth, and fourteenth amendment rights under the United States Constitution. Count X is directed towards the individual State Police Defendants who were previously dismissed from this case. Count X was added to the complaint when the Boykins filed a second complaint which named the individual state police officers previously identified as John Doe State Police Officers in their original complaint.
As previously discussed in this order, the actions of the Commonwealth Defendants did not violate any constitutional right of the Boykins. We are of the view that the facts in this case fail to establish any cause of action against the Commonwealth Defendants under the United States Constitution. We will grant the Commonwealth Defendants' motion for summary judgment on Count X as well.
Only persons actually deprived of their civil rights can redress such rights in a civil rights action. See O'Malley vs. Brierley, 477 F.2d 785, 789 (3d Cir. 1973). The Boykins have presented no evidence that any of the Commonwealth Defendants took any action against either Margaret Boykin or Aaron Boykin, a very young child. Thus, there is no basis for a cause of action by either Margaret Boykin or Aaron Boykin.
We will now address the Boykins' claims under state tort law. Counts VI through IX allege state tort actions brought pursuant to this Court's pendent jurisdiction. The Boykins allege claims of false imprisonment, defamation, invasion of privacy, and malicious prosecution. Counts I-IV and Count X of the Boykins' complaint are the only bases for federal subject matter jurisdiction. Because we will grant the Commonwealth Defendants' motion for summary judgment as to the federal claims asserted in the Boykins' complaint, we will remand the pendent state claims to the Court of Common Pleas of Columbia County. See United Mine Workers vs. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).
We will defer the entry of judgment by the Clerk so as not to prejudice any person or persons who may wish to file an ancillary motion or motions prior to entry of judgment.
An appropriate order will be entered.
MUIR, U.S. District Judge
ORDER #1 of
July 7, 1995
1. The Commonwealth Defendants' motion for summary judgment filed on February 1, 1995, is granted with respect to Counts I through V and Count X.
2. The Clerk of Court shall enter judgment two weeks from today on behalf of Defendants Bloomsburg University, Dr. Robert Parrish, Dr. Curtis English, Dr. Harry Ausprich, Margaret Manning, Irvin Wright, John Walker, Timothy Downs, Sallie Samsel and Lt. Deborah Barnes and against the Plaintiffs Michael R. Boykin, Margaret L. Boykin, and Aaron M. Boykin.
3. This case is remanded to the Court of Common Pleas of Columbia County, Pennsylvania.
4. The Clerk of Court shall send a copy of this order to the Prothonotary of Columbia County.
5. The Clerk of Court shall close this file.
MUIR, U.S. District Judge
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