The opinion of the court was delivered by: Muir, District Judge.
On December 15, 2003, Plaintiff Thomas C. Skrutski, a Corporal with the Pennsylvania State Police, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against four other individuals employed by the Pennsylvania State Police. On April 15, 2005, Skrutski filed an amended complaint. Named as defendants in the amended complaint are the following individuals: (1) Joseph Marut, who at the time of the filing of the amended complaint was a Captain with the Pennsylvania State Police;*fn1 (2) Michael L. Brice, who is the station commander at the Gibson State Police barracks; (3) Rebecca S. Warner, a criminal investigator with the Pennsylvania State Police; and (4) Wanda Gilbert, who was a Lieutenant with the Pennsylvania State Police.*fn2
Skrutski claims that the Defendants individually violated his rights under the First and Fourteenth Amendments to the United States Constitution and that they conspired to do so. The First Amendment claims are premised on allegations that the Defendants retaliated against Skrutski for speaking out on matters of public concern. The Fourteenth Amendment claim is based on a contention that Skrutski was denied substantive and procedural due process and equal protection of the law as a result of being subjected to arbitrary and capricious conduct by the Defendants relating to employee discipline and a standard different from that which was applied to other Pennsylvania State Police officers.
On July 5, 2005, Defendants filed a motion for summary judgment. Defendants' motion for summary judgment only addressed part of Skrutski's First Amendment retaliation claim and his conspiracy claim. It did not address Skrutski's due process and equal protection claims and at least two aspects of his First Amendment claim. The two aspects of the First Amendment claim not addressed in the motion for summary judgment were Skrutski's contention that (1) he was retaliated against when Defendants allegedly intimidated or interfered with witnesses and (2) he was denied access to the courts. This case was reassigned to us on March 20, 2006. On March 29, 2006, we issued an order denying the motion and the case was placed on the July, 2006, trial list, On June 14, 2006, Defendants filed a motion in limine relating, inter alia, to "any testimony of 'wrongdoing' involving the official job responsibilities, i.e., Skrutski's allegations of unfavorable scheduling, unfair investigation, and unfair evaluations." The motion in limine primarily relied on the recent United States Supreme Court case of Garcetti v. Ceballos, ____U.S.___, 126 S.Ct. 1951 (2006). In that case the Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
A First Amendment retaliation claim requires a plaintiff to prove the following three elements: (1) that the plaintiff engaged in protected First Amendment activity; (2) the government responded with retaliation; and (3) the protected activity was the cause of the government's retaliation. Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997). For purposes of the summary judgment motion, Defendants conceded that Skrutski engaged in activity protected by the First Amendment. The motion in limine related to evidence which allegedly would establish that Skrutski engaged in First Amendment protected activity, i.e,, the first element of a First Amendment retaliation claim which Skrutski is required to prove. By order of June 16, 2006, we converted the motion in limine to a second motion for summary judgment and required supplemental briefing. We also continued the trial sine die. The second motion for summary judgment became ripe for disposition on September 5, 2006.
The court will consider the second motion for summary judgment under the well-known and accepted standards to be considered in determining whether or not to grant summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986); Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). Federal Rule of Civil Procedure 56(c) requires that the court render summary judgment "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." Fed. R. Civ. P. 56(c). If, however, "the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented." Advisory Committee Notes to Fed. R. Civ. P. 56(e)(1963 Amend.). Furthermore, the evidence and inferences therefrom must be viewed in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd., 475 U.S. at 585.
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation, 477 U.S. at 323. This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.
Rule 56 provides that, where a summary judgment motion is made and properly supported, the adverse party must show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of its case that a reasonable judge or jury could find in its favor. Celotex Corporation, 477 U.S. at 322-23.
When addressing a motion for such a judgment, our inquiry focuses on "whether the evidence presents a sufficient disagreement to require [a trial] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52(emphasis added).
As summarized by the Advisory Committee on Civil Rules, "[t]he very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Fed. R. Civ. P. 56, Advisory Committee Note to 1963 Amendment. In light of the above legal principles the court will now address the second motion for summary judgment.
III. Summary Judgment Record
In the amended complaint Skrutski alleges that his rights under the First Amendment to the United States Constitution were violated when he was retaliated against for reporting violations of State Police regulations and possible criminal acts by other individuals employed by the State Police. He contends the retaliation took the form, inter alia, of improper discipline, reassignment and the intimidation of witnesses. He also contends that Defendants violated his First Amendment right to petition the government (the filing the original civil complaint in federal court) by engaging in certain acts of retaliation which will be detailed below. The Plaintiff also raised a First Amendment access to the courts claim and claims under the Fourteenth Amendment.
In our opinion of March 29, 2006, we stated that our review of the summary judgment record revealed numerous disputed facts. We then after viewing the record in a light most favorable to Skrutski set forth the facts that a jury could find. Of those facts, we will now outline the most pertinent to our disposition of the second motion for summary judgment.
In approximately 1994 or 1995, Skrutski was assigned to investigate an accident involving Trooper Holly Storms. (Skrutski Dep. 185).*fn3 During the investigation, Brice, then a Corporal, requested that Skrutski falsify the investigation to make it appear as though Storms was intoxicated. (Skrutski Dep. 186-87). Skrutski refused, and informed his station commander, Sergeant Joseph Faucet, of Brice's actions. (Skrutski Dep. 188-89) Faucet called Brice's commander and relayed the information, and Brice's commander said he would talk to the captain and resolve the situation. (Skrutski Dep. 190).
Approximately one year later, Brice again contacted Skrutski and requested that he falsify an investigation, this time involving Trooper Sanfillipo. (Skrutski Dep. 191). Skrutski again relayed Brice's actions to Faucet, and Faucet called Brice's supervisor who ensured him that he would resolve the situation. (Skrutski Dep. 193). Thereafter, Brice was transferred to a position normally held by a Trooper but remained at the rank of a corporal. (Skrutski Dep. 193).
Shortly before Brice assumed command of the Gibson barracks in April 2001, Skrutski observed Corporal Langan kneeling beside Trooper William Gross's personal vehicle. (Skrutski Dep. 27) Langan held a lug wrench, and had a four way wrench and a tire wrench. (Skrutski Dep. 27) He heard a metal 'clang' and wondered what Langan was doing. (Skrutski Dep. 28-29) He did not inquire further because Langan was the vehicle maintenance officer and could have been fixing the vehicle as a favor. (Skrutski Dep. 29) A few days later, Trooper Gross informed Skrutski that someone had flattened his tires several times and on one occasion had loosened his lug nuts. (Skrutski Dep. 29-30) Skrutski brought this matter to Sergeant Thomas Pavlick's attention who was the station commander at the time. (Skrutski Dep. 30-31) He explained what he had witnessed and related Gross's complaint. (Skrutski Dep. 31). Pavlick took no action, and explained that he would be the station commander for the next three days only, and Skrutski should discuss the matter with Brice when he assumed command. (Skrutski Dep. 32). When Skrutski informed Brice of this matter a few days after Brice took command, Brice became irate. (Id. at 35). Brice stated that he could not believe that Langan would do such a thing, that Langan was a personal friend of his, and he considered the matter closed. (Id. at 36). Skrutski raised the matter with Brice several more times, including during a meeting in May 2001 where Brice again became angry and screamed at Skrutski. (Id. at 38-39). Brice told Skrutski that his "career is over" and he would use his influence to ensure that he would never again be promoted. (Id. at 39).*fn4
In the fall of 2002, Brice called Skrutski into his office to discuss the matter again. (Id. at 42-43). Brice called Pavlick and asked if he could recall the incident, and Pavlick said he could not. (Id. at 43-44). Brice then informed Skrutski that he would take no further action regarding the incident. (Id. at 45). Later, when Defendant Gilbert conducted an investigation in 2003 into Skrutski's behavior, Skrutski informed her of the incident and she took no action although Gross acknowledged the incident. (Skrutski Dep. at 52). Gross testified that he told both Sergeant Pavlick and Brice about the incident. (Pl. Ex. B, 86-88). Gross also testified that he was asked about the incident by Gilbert but was never formally interviewed. (Id., 88-89). One of the disciplinary charges leveled against Corporal Skrutski was that he falsely accused Corporal Langan of a criminal act. (Pl. Ex. I).
After Brice assumed command of the Gibson barracks in April 2001, Brice gave Skrutski an unfavorable schedule. (Skrutski Dep. 65, 133-36 and 210-12). In the summer of 2001 Brice gave Skrutski an evaluation that reflected the lowest score Skrutski ever received and one of the lowest he had ever seen of any Pennsylvania State Police employee. (Skrutski Dep. 129) Brice also chastised Skrutski when he followed regulations and properly secured a weapon that was left unattended in the station by Corporal Langan. (Skrutski Dep. 131).
On January 29, 2003, Skrutski assigned a complaint to the criminal investigations unit and Defendant Warner felt it was unnecessary for her unit to handle it because they were busy and patrol members were available. (Skrutski Dep. 84-85; Warner Dep. 35). Warner then approached Skrutski and, using profanity and raising her voice, told Skrutski ...