Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SIEGEL v. ABBOTTSTOWN BOROUGH

January 30, 2004.

RICHARD B. SIEGEL, Plaintiff
v.
ABBOTTSTOWN BOROUGH and HAMILTON TOWNSHIP, Defendants



The opinion of the court was delivered by: J. ANDREW SMYSER, Magistrate Judge

ORDER

The plaintiff commenced this action by filing a complaint on April 1, 2003. On May 20, 2003, the plaintiff filed an amended complaint. On September 4, 2003, the plaintiff filed a second amended complaint. The plaintiff subsequently filed a third amended complaint.*fn1

The defendants named in the third amended complaint are Abbottstown Borough and Hamilton Township. The plaintiff alleges the following facts in his third amended complaint. Page 2

  The plaintiff was hired by the Abbottstown-Hamilton Joint Police Department (Police Department) on or about April 1, 2001, as a patrol officer. Third Amended Complaint at ¶ 21. Todd Dunlap was employed as a patrol officer for the Police Department for approximately 15 years. Id. at 522. In the summer of 2001, the plaintiff observed what he believed to be wrongdoing and waste by Dunlap. Id. at ¶ 23. The plaintiff reported the waste and wrongdoing that he observed to elected officials of Hamilton Township and Abbottstown Borough. Id. at ¶ 25.

  By a letter dated June 21, 2002, the plaintiff was given notice that his employment with the Police Department would be terminated effective June 30, 2002. Id. at ¶ 31. On July 1, 2002, the agreement between Abbottstown Borough and Hamilton Township regarding the Joint Police Department expired and the Police Department was disbanded. Id. at ¶ 32.

  On July 31, 2002, Abbottstown Borough and Hamilton Township entered into a new agreement for the reinstatement of the Joint Police Department. Id. at ¶ 33. Under the new agreement, Todd Dunlap was rehired and given the title of Chief of the Police Department. Id. at ¶ 34. The plaintiff was not Page 3 rehired. Id. at ¶ 35. The plaintiff alleges that township and borough officials voted not to rehire him in retaliation for his reports of waste and wrongdoing. Id. at ¶ 36.

  In February of 2003, Eric Yost was hired as a part-time patrol officer with the Police Department. Id. at ¶ 37. In March of 2003, Dough Fishel was hired as a part-time patrol officer with the Police Department. Id. at ¶ 39. Eric Yost quit his employment with the Police Department on August 9, 2003 and on October 20, 2003, David Ogle was hired to replace him. Id. at ¶ 37. The plaintiff alleges that the public officials voted to hire Yost, Fishel and Ogle instead of him in retaliation for his reports of waste and wrongdoing. Id. at ¶¶ 38 & 40.

  The third amended complaint contains two counts. Count I is a 42 U.S.C. § 1983 claim that the plaintiff was retaliated against in violation of the First Amendment for his reports of waste and wrongdoing. Count II is a claim under Pennsylvania's Veteran's Preference Act, 51 Pa.C.S.A. 7101 et seq. As relief, the plaintiff is seeking reinstatement as a patrol officer, back pay and front pay as well as compensatory and punitive damages. Page 4

  The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c), and on August 26, 2003, the case was reassigned to the undersigned magistrate judge. The case is scheduled for a jury trial beginning on September 7, 2004.

  On December 8, 2003, the plaintiff filed a motion for a protective order. The plaintiff is seeking an order precluding the defendants from seeking discovery of any psychological evaluations performed on the plaintiff prior to his employment with the defendants. On December 12, 2003, the plaintiff filed a brief in support of his motion. On January 2, 2004, the defendants filed a brief in opposition to the motion for a protective order. No reply brief has been filed.

  The defendants contend that during the course of discovery in this case they learned for the first time that, in November of 1999, the plaintiff "failed" a Minnesota Multiphasic Personality Inventory (MMPI) psychological evaluation that was required by the Southern Regional Police Department (a prospective employer) as part of the employment process. The defendants assert that they served subpoenas on all persons and entities they believe may possess the written Page 5 psychological report. The defendants further assert that they recently learned that the psychological examination report is in the possession of the Southern Regional Police Department.

  The plaintiff contends that the report is protected by the psychotherapist-patient privilege,*fn2 that the report should remain confidential, and that the report is not relevant to the claims in this case.

  In order to adequately address the issues, we believed that we needed to review the documents at issue in camera. The documents at issue are not in the possession of any of the parties to this case, but rather are in the possession of a non-party, the Southern Regional Police Department. By an Order dated January 2, 2004, we directed the defendants to provide to the Southern Regional Police Department (to whom they had issued a subpoena) a copy of the court's order and we Page 6 requested that the Southern Regional Police Department comply with the defendants' subpoena with the modification that the records at issue not be produced to the defendants but be produced to the court in camera. By a letter dated January 27, 2004, James C. Childs, III, the Chief of Police of the Southern Regional Police Department, submitted to the court in camera the Psychological Report of Michael G. Ditsky and Authorization form signed by the plaintiff authorizing the release of the results of his psychological evaluation to Chief James Childs. Ditsky's Report consists of a completed Commonwealth of Pennsylvania Municipal Police Officer's Education & Training Commission Psychological Examination form and a one page type-written report. The Psychological Examination form contains numerical scores on the MMPI Personality Test taken by the plaintiff. The one-page report contains Ditsky's interpretation of those scores.

  In Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme Court recognized a psychotherapist-patient privilege under Rule 501 of the Federal Rules of Evidence. Jaffee involved the discoverability of records concerning counseling sessions between a police officer and a clinical social worker after the officer had fatally shot a man. The Court held that Page 7 "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence." Id. at 15. The Court reasoned that recognizing the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.