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Loving v. Borough of East McKeesport

December 29, 2005

WILLIAM LOVING, AND REBECCA LOVING, PLAINTIFFS,
v.
BOROUGH OF EAST MCKEESPORT, AND RICHARD MICHAELS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN EAST MCKEESPORT POLICE OFFICER, DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER OF COURT

Presently before the Court for consideration and disposition is Defendants' MOTION FOR SUMMARY JUDGMENT (Document No. 32). The matter has been fully briefed. See Document Nos. 33, 38-39.

Background

Construed in the light most favorable to Plaintiffs, the record facts are as follows: Plaintiffs, William Loving ("Mr. Loving") and Rebecca Loving ("Ms. Loving") (collectively "Plaintiffs") are residents of the Borough of East McKeesport (the "Borough"). At the relevant time, Ms. Loving was a Pennsylvania State Trooper. Defendant Richard Michaels ("Chief Michaels") was the Chief of Police of the Borough. In March of 2000, Sherry Mitchell ("Mitchell"), Plaintiffs' neighbor, filed a complaint against Plaintiffs' children which alleged that they "constituted a 'gang' and were disturbing the peace." Complaintat ¶ 14. The complaint filed by Mitchell related to an incident which occurred on March 22, 2000.

In May of 2000, Plaintiffs' son received a citation for disorderly conduct from the Borough of East McKeesport Police Department for his involvement in the events of March 22, 2000. On July 18, 2000, that complaint was dismissed "due to the nonappearence of a witness." Id. at ¶ 19.

On July 25, 2000, Plaintiffs met with an Assistant District Attorney and completed a complaint form in which they alleged that Mitchell had reported false information to the police in her complaint. Def's Stmt. of Facts at ¶ 1.*fn1 On January 25, 2001, a hearing was held regarding Plaintiffs' complaint against Mitchell. Id. at ¶ 2. Plaintiffs, as well as Mitchell, Chief Michaels, and Officer Scott Lowden ("Officer Lowden") testified at the hearing. Id. at ¶ 3. During his testimony, Officer Lowden described what he had observed when he responded to the incident of March 22, 2000. Id. at ¶ 4. Ms. Loving subsequently told Chief Michaels that Officer Lowden's testimony was inconsistent with what he recorded in his police report, and she asked what the Chief was "going to do about it." Id. at ¶ 5. Chief Michaels advised Ms. Loving that she could file a complaint concerning her allegations against Officer Lowden. Def's Stmt. of Facts at ¶ 6. Plaintiffs' recollections of the specific alleged inconsistencies in Officer Lowden's testimony are rather vague and weak. See id. at ¶¶ 7-8.

In a subsequent letter to Mayor Robert Oskin ("Mayor Oskin"), Plaintiffs requested that Officer Lowden be investigated regarding his allegedly inconsistent testimony at the hearing. Id. at ¶ 10. On January 26, 2001, Mr. Loving met with Mayor Oskin concerning the subject of the letter. Id. at ¶ 11. Mayor Oskin also forwarded the letter to Chief Michaels, who contacted the District Attorney's Officer concerning Plaintiffs' complaint.*fn2 Id. at ¶¶ 12-13. On January 29, 2001, Chief Michaels informed Ms. Loving that he had turned the investigation of Officer Lowden over to the District Attorney's Office. Def's Stmt. of Facts at ¶ 17. Chief Michaels also explained the sum and substance of Plaintiffs' complaint to Mr. O'Leary, an investigator for the District Attorney's Office, and gave Mr. O'Leary all the information he had regarding that proceeding. Id. at ¶ 18. Mr. O'Leary conducted an investigation and found no misconduct by Officer Lowden. Id. at ¶ 22.

After having completed the investigation, and acting upon his own initiative, O'Leary contacted a lieutenant from the Pennsylvania State Police; the lieutenant subsequently contacted Chief Michaels. Id. at ¶¶ 24-25. Sergeant Heckman of the Pennsylvania State Police then spoke with Chief Michaels, in person, as a result of which conversation Chief Michaels filed a Bureau of Professional Responsibility ("BPR") complaint*fn3 against Ms. Loving based on her conduct toward the borough's police department. Id. at ¶ 26. Apparently Ms. Loving had threatened to contact the state Attorney General's Office regarding Officer Lowden's testimony even though the District Attorney's Office had found no misconduct by Officer Lowden. Def's Stmt. of Facts at ¶ 26. The BPR complaint lodged by Chief Michaels was also based on other incidents of allegedly harassing and threatening conduct by Plaintiffs. See id. at ¶ 27. When Chief Michaels filed the BPR complaint, Sergeant Heckman instructed the Chief to contact him if there were any further problems with Ms. Loving. Id. at ¶ 28.

Ms. Loving learned of Chief Michaels' BPR complaint on April 26, 2001, when she was informed by Sergeant Heckman that he had received a copy of the letter that Plaintiffs had sent to Mayor Oskin. Id. at ¶ 37. Following the investigation of the BPR complaint, Captain Waters of the Bureau issued an adjudication in which he determined that Chief Michaels' complaint against Ms. Loving was "not sustained." Id. at ¶ 40. When a BPR complaint results in an adjudication of "not sustained," no discipline results, and none of the documents relating to the complaint is placed in the trooper's personnel file. Def's Stmt. of Facts at ¶ 41. Additionally, an adjudication of "not sustained" has no effect on the trooper's performance evaluations, or on consideration of the trooper for promotion. Id. at ¶ 42.

The animosity between the parties continued. On or about September 7, 2001, Plaintiffs posted a large, hand-painted sign in their front yard. Id. at ¶ 42. The sign read, "Good Morning, Chief," and was obviously directed toward Chief Michaels, who found the sign to be harassing. Id. at ¶¶ 42-43. On or about February 18, 2002, Plaintiffs sent a letter to the new mayor, Robert Howard, repeating their allegation that Officer Lowden testified falsely at the hearing. Id. at ¶ 44. Based on Sergeant Heckman's advice to contact him regarding any further problems, Chief Michaels informed the Bureau of the sign incident and Plaintiffs' letter to the new mayor. Def's Stmt. of Facts at ¶ 45. Although documents regarding these incidents were forwarded to the Pennsylvania State Police, no BPR or other complaint was filed. Id. at ¶ 46. Apparently at some point in all of this Plaintiffs notified the Borough of their intention to file a lawsuit. See Pltfs' Br. at 11.

The record reflects that Plaintiffs, and particularly Ms. Loving, have suffered no adverse professional consequences from this series of incidents. See Defs' Stmt. of Facts at ¶¶ 47-63, 72. For example, Ms. Loving received no discipline or other adverse action as a result of Chief Michaels' contact with her employer. Id. at ¶ 47. Her personnel file contains no reprimands or other disciplinary records, nor does said file contain any reference to the BPR complaint. Id. at ¶¶ 48-49. There is also no indication that the BPR complaint had any legally cognizable negative effect on her employment, or that any adverse action was taken against her as a result of said complaint. Id. at ¶ 49.

The record also reflects that as citizens of the Borough, Plaintiffs have suffered no legally cognizable adverse consequences from this series of incidents. See id. at ¶¶ 65-70. For example, Plaintiffs have no evidence that Chief Michaels or any other Borough official interfered with the investigation conducted by the District Attorney's Office. Def's Stmt. of Facts at ¶ 65. No one from the Borough has prevented Plaintiffs from attending a borough council meeting, and Plaintiffs have no evidence that anyone associated with the Borough has taken any steps to prevent them from doing so. Id. at ¶ 66. No one associated with the Borough has tried to prevent Plaintiffs from making a complaint against Officer Lowden. Id. at ¶ 68. Finally, Plaintiffs admit that their alleged fear that the police department or Borough council might not respond to a problem they report in the future is merely speculation. Id. at ¶ 70. Plaintiffs filed this lawsuit against Defendants Borough of East McKeesport, Richard Michaels and Officer Lowden for alleged violations of the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("section 1983"), and Pennsylvania common law. Defendants filed a motion to dismiss. As a result of the disposition of said motion, the majority of Plaintiffs' claims, including all claims against Officer Lowden, were dismissed. See Document No. 10. At this stage of the proceeding only three claims remain: a First Amendment claim of retaliation against the Borough and Chief Michaels pursuant to 42 U.S.C. § 1983*fn4, a claim under 42 U.S.C. § 1983 against the Borough for "failure to properly train, instruct and discipline police officers,"*fn5 and a state law claim for intentional interference with an employment relationship against Chief Michaels.*fn6 Defendants have moved for summary judgment on the remaining claims.

Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure reads, in pertinent part, as follows: [Summary Judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view the facts in a light most favorable to the non-moving party, and the burden of establishing that no genuine issue of material fact exists rests with the movant. Celotex, 477 U.S. at 323. The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against the moving party." Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972)). Final credibility determinations on ...


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