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Ober v. Guido

August 10, 2007

DARRELL OBER, PLAINTIFF
v.
SYNDI GUIDO, RICK BROWN, BARBARA CHRISTIE, JOANNA REYNOLDS, CHARLES SKURKIS, JEFFREY MILLER, DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

Plaintiff, Darrell Ober, formerly a Captain with the Pennsylvania State Police ("PSP"), filed a complaint pursuant to 42 U.S.C. § 1983 alleging that Defendants Syndi Guido, Rick Brown, Barbara Christie, Joanna Reynolds, Charles Skurkis, and Jeffrey Miller, all PSP employees, retaliated against him for exercising his First Amendment right to speak out on matters of public concern and to redress grievances through the courts. Ober's complaint also mentions a Fourth Amendment claim and sets forth supplemental state-law tort claims for intentional infliction of emotion distress, false light representation, civil conspiracy, and retaliatory constructive discharge.

We are considering Defendants' motion to dismiss (doc. 5) the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, we will dismiss Ober's complaint because he fails to state a claim for retaliation upon which relief could be granted. Additionally, we will decline to exercise jurisdiction with respect to the supplemental state-law claims.

II. Background

This is the fourth lawsuit Ober has filed claiming that various PSP officials retaliated against him for events which occurred during his employment with the PSP. A brief summary of Ober's lawsuits provides necessary background for his claims in this action.

In his first lawsuit, Ober v. Evanko, No. 01-cv-00084 (M.D. Pa. 2001) ("Ober I"), Ober claimed that various PSP officials violated his First Amendment rights by retaliating against him for commenting on matters of public concern. Ober contended that the retaliation resulted from his discussion of a police corruption investigation outside of the PSP chain of command. Ober v. Evanko, 80 Fed. Appx. 196, 198 (3d Cir. 2003) (nonprecedential). On appeal, the Third Circuit concluded that the communications outside of the chain of command were not protected speech, thereby undermining Ober's First Amendment retaliation claim. Id. at 197.

Ober's second lawsuit, Ober v. Brown, No. 02-cv-2186 (M.D. Pa. 2002) ("Ober II"), was filed against the attorneys who represented the defendants in Ober I as well as an investigator who aided the attorneys. In Ober II, Ober contended that the defendants filed fallacious briefs in Ober I in an attempt to mislead the court. Ober v. Brown, No. 02-cv-2186, slip op. at 3 (M.D. Pa. Sept. 3, 2003). Ober also alleged that the defendants suborned perjury and "plotted unlawful schemes to discredit at least two of plaintiff's key witnesses in Ober I." Id. According to Ober, Defendants took these actions to retaliate against him for exercising his First Amendment rights in filing Ober I. Id. Both the District Court and the Third Circuit Court of Appeals concluded that Ober II failed to state a retaliation claim. Id. at 6; Ober v. Brown, 105 Fed. Appx. 345, 347 (3d Cir. 2004) (nonprecedential).

Ober filed his third retaliation lawsuit, Ober v. Miller, No. 04-cv-01669 (M.D. Pa. 2004) ("Ober III"), in 2004. This lawsuit, current pending before Judge Christopher C. Conner in this District, alleges that PSP employees retaliated against Ober for filing Ober I and II and for preparing a memorandum accusing the PSP Commissioner and Deputy Commissioner of misconduct and corruption.

Ober's present retaliation claim ("Ober IV") alleges that the Defendants secretly met and engineered a plan to deter Ober from speaking publicly or filing a lawsuit regarding purported corruption involving PSP Commissioner Jeffrey Miller and Pennsylvania State Senator Vincent Fumo. Ober claims that Defendants engaged in retaliatory conduct because he communicated confidential information to his attorney about an internal report he intended to file. (doc. 1, ¶ 7). Ober also contends that Defendants planned to retaliate against him for filing the other lawsuits against the PSP. Id. ¶ 10.

Present at the meeting, which took place on or about December 2004, were the Defendants, as well as other, unnamed individuals. Id. ¶ 8, 9. At the meeting, Ober alleges that Guido asked PSP Commissioner Miller for permission to file a criminal complaint against Ober with the United States Attorney's Office for the Middle District of Pennsylvania. Id.

¶ 10. The intended basis for the criminal charges would be allegations of perjury in Ober I with the purpose of destroying Ober's credibility in Ober III, which was, and still is, pending. Id. ¶ 14. Miller, in response to the request, gave permission to Defendants Guido and Brown to seek the criminal charges against Ober. Id. ¶ 11. Guido and Brown put together an investigative report on Ober and delivered it to the U.S. Attorney's Office; however, officials from the U.S. Attorney's Office declined the invitation to pursue criminal perjury charges against Ober. Id. ¶¶ 17, 18.

According to Ober, he "only learned of this unlawful meeting and plan, and who participated, more than a year after it took place, during Syndi Guido's deposition while conducting discovery in [Ober III]." Id. ΒΆ 11. See also doc. 13, p. 10 ("The entire state of affairs was litigated by Ober who was unaware at the time of the December 2004 meeting and the efforts that were made to totally destroy him."). Ober, however, also claims that as a result of Defendants' conduct, he "could no longer ...


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