The opinion of the court was delivered by: Bartle, District Judge.
Plaintiff has brought this civil rights action under 42 U.S.C. § 1983
against Anthony Sarcione, the District Attorney of Chester County, and
Joseph Daniels ("Daniels"), a Chester County detective. Included in the
complaint are various supplemental state law claims.*fn1 Before the
court is the motion of defendants to dismiss for failure to state a claim
upon which relief can be granted. Defendants also assert absolute and
We accept as true the well-pleaded factual allegations in the complaint
and draw in plaintiff's favor any reasonable inferences therefrom. Hishon
v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59
(1984); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1391 (3d Cir. 1994). Of course, we need not accept bald assertions or
legal conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997).
Plaintiff, a 10th grade teacher at Bishop Shanahan Roman Catholic High
School in Downingtown, Pennsylvania, claims that a female student falsely
accused him of "assaultive behavior and sexual misconduct and
harassment." The student filed a complaint with the Chester County
Detectives, who are part of the District Attorney's Office. Defendant
Daniels thereafter conducted an investigation which, while in progress,
became known to the school Principal, faculty, and student body. On June
8, 2000, Daniels sent the following letter to the Principal of the school
on the official letterhead of the District Attorney's Office:
Plaintiff contends that as a result of this letter he was defamed and his
invaded, both without his being afforded procedural and substantive due
process under the Fourteenth Amendment.
Section 1983 reads in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for
42 U.S.C. § 1983.
The statute itself does not create any substantive rights. It simply
provides a remedy for vindicating rights established under the
Constitution or laws of the United States. Albright v. Oliver,
510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Baker v.
McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979);
Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
The Fourteenth Amendment protects persons against deprivation of life,
liberty and property without due process of law. The Supreme Court has
held that damage to reputation, unaccompanied by some tangible loss such
as termination of employment, does not constitute a loss of liberty or
property which is constitutionally protected. Paul v. Davis, 424 U.S. 693,
712, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Defamation by a person acting
under color of state law without some alteration in the protected status
of the individual defamed is not "sufficient to invoke the procedural
guarantees contained in the Due Process Clause of the Fourteenth
Amendment." Id. at 711, 96 S.Ct. 1155. In other words, there must be
damage to "reputation plus." See Ersek v. Township of Springfield,
102 F.3d 79, 83 n. 5 (3d Cir. 1996); Clark v. Township of Falls,
890 F.2d 611, 619 (3d Cir. 1989).
The Paul case arose out of the publication by local police of a flyer
picturing and identifying active shoplifters in the Louisville, Kentucky
area. Although the plaintiff had been charged with shoplifting, the
charges were dismissed shortly after the flyer was circulated. When the
flyer was called to the attention of plaintiff's supervisor at his place
of employment, plaintiff was not fired but was told he "had best not find
himself in a similar situation." Id. at 696, 96 S.Ct. 1155. Plaintiff
contended that his designation as an active shoplifter "would inhibit him
from entering business establishments for fear of being suspected of
shoplifting and possibly apprehended, and would seriously impair his
future employment opportunities." Id. at 697, 96 S.Ct. 1155. He sued
under § 1983 on the ground that he was defamed and that his right to
procedural due process was violated because he was not afforded a hearing
before the publication of the damaging information, The Supreme Court
upheld the dismissal of the complaint. Conceding that he may have a viable
claim under state tort law, the Court concluded that the defamation of an
individual, "standing alone and apart from any other governmental action
with respect to him," does not implicate a federally protected liberty or
property interest. Id. at 695, 96 S.Ct. 1155.
Property interests are not created by the federal Constitution but
emanate from "an independent source such as state law." Cleveland Bd. of
Ed. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494
(1985); see Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077 (3d Cir.
1997). Plaintiff contends that in Pennsylvania, unlike Kentucky,
specifically protected by the state constitution, in plaintiff's view
giving the reputation of Pennsylvanians a protected status under the
Fourteenth Amendment. The Commonwealth's Constitution reads:
All men are born equally free and independent, and
have certain inherent and indefeasible rights, among
which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting
property and reputation, and of pursuing their own
Pa. Const. art. I, § 1.
Pursuant to this provision, the Pennsylvania Supreme Court has declared
that reputation is in "the same class with life, liberty, and property."
Meas v. Johnson, 185 Pa. 12, 39 A. 562, 563 (1898). While recognizing the
importance of reputation, the court clearly understood that it is a right
distinct from the rights of life, liberty, and property which are all
separately enumerated in the Pennsylvania Constitution. The Fourteenth
Amendment, of course, only protects against deprivation of life,
liberty, and property. It makes no mention of reputation. Thus, even with
the elevated protection that reputation seems to be afforded in the
Commonwealth, this favored status in and of itself does not secure
reputation alone under the Fourteenth Amendment. See Clark, 890 F.2d at
619; Garner v. Township of Wrightstown, 819 F. Supp. 435, 441 (E.D.Pa.
1993); Lee v. Mihalich, 630 F. Supp. 152, 155 (E.D.Pa. 1986).
We note that the Pennsylvania Constitution also declares in the same
Article I, Section 1 that all people have the right "of pursuing their
own happiness." If plaintiff were correct that there is a federal
constitutional guarantee for reputation simply because it is embedded in
the Pennsylvania Constitution, then it would seem that the violation of
the right to pursue happiness would also give rise to a claim under
§ 1983. We strongly doubt that the Supreme Court would so hold.
We must emphasize that the Fourteenth Amendment is not "a font of tort
law to be superimposed upon whatever systems may already be administered
by the States." Paul, 424 U.S. at 701, 96 S.Ct. 1155. The plaintiff's
complaint here does not allege more than state law causes of action. The
well pleaded facts do not articulate a loss of "reputation plus." See
Clark, 890 F.2d at 619; Garner, 819 F. Supp. at 440. Significantly,
plaintiff does not say that he was fired from his job as a teacher at
Bishop Shanahan High School as a result of Daniels' letter to the
Principal. Nor does he articulate any facts in the complaint that he
suffered specific adverse employment action. In conclusory fashion
plaintiff merely alleges he "has sustained and will continue to sustain a
loss of income, loss of earning capacity . . . ." In considering a motion
to dismiss, we are not bound by conclusory statements in a pleading.
Morse, 132 F.3d at 906. Moreover, our Court of Appeals has stated that
"financial injury due solely to government defamation does not constitute
a claim for deprivation of a constitutional liberty interest." Kelly, 107
F.3d at 1078.
At a point in the complaint, plaintiff avers that defendants by the
June 8, 2000 letter, "intended . . . to interfere and/or disrupt the
plaintiff's employment and/or career with Bishop Shanahan High School
and/or the Catholic school system as well as with the plaintiff's ability
to obtain employment in any school or other business environment."
(emphasis added). Intent to cause harm and causing harm are two different
things. The "possible loss of future employment opportunities is patently
insufficient to satisfy the requirement imposed by Paul that a liberty
more than mere injury to reputation." Clark, 890 F.2d at 620.
In sum, no facts are set forth in the complaint that plaintiff's status
as recognized under state law has been changed. See Paul, 424 U.S. at
712, 96 S.Ct. 1155; Clark, 890 F.2d at 619. While imputing criminal
behavior to a person may state a claim for libel under Pennsylvania law,
plaintiff has not set forth a viable procedural due process claim under
§ 1983 arising out of any defamatory statements emanating from
Insofar as plaintiff's § 1983 claim is grounded on an invasion of
his privacy, it is without merit. The Supreme Court has recognized the
constitutional underpinning to privacy with respect to certain kinds of
important decisions, Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869,
51 L.Ed.2d 64 (1977), as well as matters relating to marriage,
procreation, contraception, family relationships, and child rearing and
education. Paul, 424 U.S. at 713, 96 S.Ct. 1155. Plaintiff, however, has
pointed to no decision that would recognize a constitutional privacy
interest under the facts of this case. The June 8, 2000 letter from
Daniels simply reports to the school Principal his findings and
conclusions about the investigation he had conducted of the student's
criminal complaint against plaintiff, a school teacher. However
unfortunate disclosure may be to any of the persons involved, a criminal
investigation and its results are matters in which the public and
particularly the school Principal here had a genuine interest, and the
subject of such an investigation cannot properly claim a protected
federal privacy interest with respect to it. Garner, 819 F. Supp. at
443. Thus, plaintiff has failed to state a § 1983 claim based on
invasion of privacy.
Plaintiff claims that the District Attorney has violated his
constitutional rights by failing to train Detective Daniels. Since
plaintiff has not alleged facts sufficient to establish that Daniels
violated his constitutional right to procedural due process, there is no
viable claim against the District Attorney on this ground. See City of
Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806
(1986) (per curiam); Williams v. Borough of West Chester, 891 F.2d 458,
467 (3d Cir. 1989).
We will dismiss plaintiff's claims under § 1983 for failure to
state a claim upon which relief can be granted. Consequently, we need not
decide whether defendants are shielded by absolute or qualified
immunity. Because no federal claims remain, we will exercise our
discretion not to pass upon plaintiff's supplemental state law claims.
See 28 U.S.C. § 1967 (3).
AND NOW, this 3nd day of October, 2001, for the reasons set forth in
the accompanying Memorandum, it is hereby ORDERED that the motion of
defendants Anthony Sarcione and Joseph Daniels to dismiss plaintiff's
complaint is GRANTED.