The opinion of the court was delivered by: Judge Munley
Presently before the Court for disposition is Defendants' collective Motion for Summary Judgment on Plaintiff John Barry's Complaint. This matter has been fully briefed and is ripe for disposition. For the following reasons, we will grant the motion in part and deny it in part.
Defendant Luzerne County Correctional Facility hired Barry in June 1987 as a correctional officer trainee, and after completing a probationary period, he became a correctional officer. (Def. Ex. A in Supp. Summ. J. ("Def. Ex.") Barry Dep. 7) In August 1990, he was promoted to desk sergeant, and in May 1994, he was promoted to control sergeant. (Def. Ex. A, Barry Dep. 8) In 1996, he was promoted to lieutenant and assigned to the prison records department. (Def. Ex. B, Barry Investigation Hearing Tr. 60, Apr. 6, 2004) Defendants Gregory Skrepenak, Todd Vonderheid, Robert Fumani, and Wister Yuhas are members of Defendant Luzerne County Correction Facility Board (the "Prison Board").
On October 10, 2003, Hugo Selinski, a prisoner awaiting trial for murder, escaped from the prison. (Pl. Ex. 3 in Opp. Summ. J. ("Pl. Ex."), Warden Gene Fischi Dep. 13) Selinski was a fugitive for approximately 72 hours before he submitted to authorities. (Pl. Ex. 3., Fischi Dep. 13) The escape became the subject of local and national media coverage.
Barry had been on duty for twenty minutes when the escape occurred. (Def. Ex. A., Barry Dep. 33; Pl. Ex. 3, Fischi Dep. 55) After the escape, he collected incident reports from the correctional officers on duty, provided them to Warden Gene Fischi, and informed him that the officers lied in the reports. (Def. Ex. B., Investigation Tr. 55-57) Barry's own written reports, however, did not include his accusation that the correctional officers lied. (Def. Ex. B., Investigation Tr. 67-70) Warden Fischi did not immediately review the reports, discuss Barry's allegation with him, or direct another officer to investigate. (Pl. Ex. 3, Fischi Dep. 55-57) On October 12, 2003, despite Barry's accusation, Warden Fischi was quoted in the Scranton Wilkes-Barre Times Leader, a local newspaper, as stating that prison records reflected that the "seventh floor cells were properly checked by guards on schedule" on the night of the escape. (Pl. Ex. 6, Times Leader Article, Oct. 13, 2005) After the escape, Barry was contacted by a reporter with the Citizens Voice, another local paper. (Def. Ex. F. Discipline/Dismissal Loudermill Hearing, N.T. 6, Oct. 24, 2003) Barry spoke with the Citizens Voice in order to explain that the correctional officers' failures caused the escape, Warden Fischi knew of these failures yet falsely reported to the press that they had properly completed their tasks, there were numerous unreported crimes in the prison, and these issues all created public safety problems. (Pl. Ex. 4, Barry Aff. ¶ 19) Barry also contacted a reporter with the Times Leader who interviewed him and Lieutenant Jenny Butcynski at Barry's home. (Def. Ex. A, Barry Dep. 91, 93-94) The reporter extensively quoted Barry's views in two articles published on October 15, 2003. (Def. Ex. G, Times Leader Article, October 15, 2003)
One article, entitled "A Prison Run Amok," attributes numerous statements to Barry and Butcynski. (Def. Ex. G, Times Leader Article, October 15, 2003) It begins with a synopsis of four incidents where prison authorities ignored wrongdoing. (Def. Ex. G, Times Leader Article, October 15, 2003) Two were instances where inmates were found with narcotics, but either charges were not brought or the police were not notified. (Def. Ex. G, Times Leader Article, October 15, 2003) The third involved the prison authorities' failure to investigate sexual harassment. (Def. Ex. G, Times Leader Article, October 15, 2003) In the fourth incident, the prison authorities failed to reprimand an employee caught with a former inmate and two shotguns in his car. (Def. Ex. G, Times Leader Article, October 15, 2003) "The incidents are among the many that Lts. John Barry and Jenny Butcynski say have occurred in the past two years under the unwatchful eye of Warden Gene Fischi and his two deputy wardens, Rowland Roberts and Ben Grevera." (Def. Ex. G, Times Leader Article, October 15, 2003) Barry and Butzynski reported they were "disgusted by the lack of oversight of the correctional officers, which they believe led to the escapes and multiple other problems within the facility." (Def. Ex. G, Times Leader Article, October 15, 2003) Barry called for Fischi, Roberts, and Grevera to resign. (Def. Ex. G, Times Leader Article, October 15, 2003) The article proceeded to list numerous other incidents gleaned from written misconduct reports, including various instances where narcotics were discovered and no charges were instituted. (Def. Ex. G, Times Leader Article, October 15, 2003) It also provided Fischi's and the deputies' explanations for the incidents and discipline. (Def. Ex. G, Times Leader Article, October 15, 2003) Fischi explained that his office has no power to institute criminal charges against prisoners and referred many cases to the district attorney. (Def. Ex. G, Times Leader Article, October 15, 2003) Roberts explained that he may have ignored possession of small amounts of marijuana, such as the residue left on the end of a cigarette butt. (Def. Ex. G, Times Leader Article, October 15, 2003) Fischi addressed the incident where an officer was found with a former inmate, and explained that although socializing with inmates is not tolerated, that incident involved a former inmate and the socializing was not excessive and was merely a car ride. (Def. Ex. G, Times Leader Article, October 15, 2003) Fischi also explained that as lieutenants, it was Barry's and Butzynski's duty to reprimand guards who failed to do their jobs. (Def. Ex. G, Times Leader Article, October 15, 2003) "They are my first line of supervision. . . . What do you think their job is?" (Def. Ex. G, Times Leader Article, October 15, 2003) Barry retorted that the administration ignored his concerns and was not aggressive with the guards. (Def. Ex. G, Times Leader Article, October 15, 2003) He stated, "There is a breakdown of communication in that prison. . . . The guards are not doing their jobs." (Def. Ex. G, Times Leader Article, October 15, 2003)
The second article provides an analysis of Selinski's escape, gleaned from official statements and prison reports "provided by the lieutenants." (Def. Ex. G, Times Leader Article, October 15, 2003) Selinski entered the cell of another inmate, Scott Bolton, and together they removed a window and used bed sheets tied together to flee the seventh floor of the prison. (Def. Ex. G, Times Leader Article, October 15, 2003) The reports indicated that guards were in the cell blocks at the time of the escape, but Barry stated "[n]obody was on the block." (Def. Ex. G, Times Leader Article, October 15, 2003) He explained that one report, which indicated that a guard was on the block, could not have been true because the guard "would have at least noticed that Selenski and Bolton were in another inmate's cell, which is not allowed." (Def. Ex. G, Times Leader Article, October 15, 2003) Barry repeated his allegation that guards rarely walk the blocks and the administration has been lax in enforcing the rules. (Def. Ex. G, Times Leader Article, October 15, 2003) The article concluded with Fischi's warning that "any individual who reveals information is 'strictly out of bounds.'" (Def. Ex. G, Times Leader Article, October 15, 2003)
Following the publication of the articles, the Prison Board directed Fischi and Assistant Solicitor Michael Kostelansky to investigate how prison records were released to the Times Leader and to secure the records. (Def. Ex. H, Kostelansky Dep. 27) On October 20, 2003, Barry was called into a meeting with Fischi, Kostelansky, and Deputy Warden Grevera. (Pl. Ex. 4, Barry Aff. ¶ 11) During this meeting, Barry refused to answer any questions until he had an opportunity to speak with his attorney because he believed he was a "target" of the investigation. (Pl. Ex. 4, Barry Aff. ¶ 11) Following the meeting, Fischi suspended Barry with pay because he refused to answer any question and failed to cooperate with the inquiry. (Def. Ex. H, Kostelansky Dep 33-38; Def. Ex. I, Fischi Letter to Barry, Oct. 21, 2003)
On October 21, 2003, Dr. Thomas Kowalski, president of the Prison Board at the time, sent a letter to Barry drafted by Kostelansky explaining that on October 24, 2003, the Board would convene to consider terminating his employment for five reasons: 1) unauthorized removal of misconduct/incident reports regarding inmates; 2) dissemination of information regarding inmates and former inmates to a newspaper; 3) failure to cooperate with an internal investigation; 4) the disclosure of a former inmate's medical status to a newspaper; and 5) the dissemination of information regarding two former inmates to a newspaper in violation of state law. (Def. Ex. J. Letter to Barry, Oct. 23, 2003) The letter informed Barry that he would have the opportunity to speak in his defense. (Def. Ex. J. Letter to Barry, Oct. 23, 2003)
On October 24, 2003, Barry participated in the hearing. (Pl. Ex. 11, Discipline Hearing Tr., Oct. 24, 2003) Kostelansky, Kowalski, and Prison Board member Constance Wynn were present. (Pl. Ex. 11, Discipline Hearing Tr., Oct. 24, 2003) Barry denied: 1) removing property from the prison without permission; 2) providing prison reports to the press; 3) taking copies of documents home from the prison; and 4) having a shoe box of prison records at his house. (Pl. Ex. 11, Discipline Hearing Tr., Oct. 24, 2003) Following the hearing, Barry remained on paid suspension. (Def. Ex. K, Kowalski Dep. 69-70)
In 2004, a new Prison Board was assembled following the election of new County Commissioners and the appointment of new lay members to the Board. On April 6, 2004, Barry participated in a second investigative hearing before the Prison Board. (Pl. Ex. 5, Investigative Hearing Tr., Apr. 6, 2004) At this hearing, he was represented by counsel. Prison Board members Fumanti, Vonderheid, Skrepenak, Yuhas, and Stephen Urban were present. (Pl. Ex. 5, Investigative Hearing Tr., Apr. 6, 2004) During the hearing, Barry admitted that throughout his employment with the prison he made copies of prison records and reports, transported them out of the prison, and stored them in a shoe box. (Pl. Ex. 5, Investigative Hearing Tr. 25-26, Apr. 6, 2004) Barry explained that he did not raise his complaints about prison management with the Prison Board because he believed he would be fired, and the sole friendly member of the Board, Steven Urban, would have been unable to prevent other members of the Board from firing him. (Pl. Ex. 5, Investigative Hearing Tr. 47-48, Apr. 6, 2004)
On June 21, 2004, by a vote of two to one, the Board voted to demote Barry from his position as a lieutenant to a correctional officer trainee. (Def. Ex. P) Shortly thereafter, Barry resigned, explaining that he was unable to meet his financial obligations on the salary of an correctional officer trainee. (Def. Ex. R)
Since a federal question is before the Court pursuant to 42 U.S.C. § 1983, we have jurisdiction over this dispute under 28 U.S.C. § 1331.
Granting summary judgment is proper 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. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
Barry advances claims pursuant to 42 U.S.C. § 1983 for alleged violations of the First Amendment, Due Process ...