The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Defendants' Motion for Summary Judgment. (Doc. 39.) For the reasons set forth below, the Defendants' motion will be granted in part and denied in part. Defendants' motion will be granted with respect to the Fourth Amendment claims, which are inapplicable to this case. Defendants' motion will also be granted with respect to the Fourteenth Amendment post-deprivation procedural due process claim, as the Plaintiff received post-deprivation adequate process through the collective bargaining agreement's grievance procedure. Defendants' motion will also be granted with respect to the Fourteenth Amendment pre-deprivation due process claim, as Plaintiff has failed to demonstrate sufficient evidence of a liberty interest, and the Plaintiff received sufficient process in the post-deprivation hearing. Defendants' motion will be granted with respect to the First Amendment retaliation claim based upon Plaintiff's speech on police and union matters, as Plaintiff has failed to demonstrate sufficient evidence of protected speech. Defendants' motion will be denied with respect to the First Amendment retaliation claim based upon the Plaintiff's filing of the 2003 grievance as questions of material fact exist with respect to this claim. The First Amendment retaliation claim in Count III based upon the right of association will be denied, due to outstanding questions of material fact.Finally, the Court will not address the First Amendment retaliation claim in Count IV, as the Defendants have not moved on that count in their motion.
As a federal question is before the Court pursuant to Title 42 of the United States Code, section 1983, the Court exercises jurisdiction over this action pursuant to section 1331 of Title 28 of the United States Code ("federal question").
The Plaintiff in this case is Charles J. Guarnieri, Jr., who was appointed Police Chief of Duryea Borough in September of 2000. (Defs.' Statement of Material Facts in Support of Mot. For Summ. J. ¶ 1, Doc. 40.) Plaintiff was terminated from his position in February of 2003, but reinstated to his position in January of 2005. (Id. ¶2-3.) Upon his return to work on January 21, 2005, Guarnieri was presented with eleven (11) directives, which he was required to follow as Police Chief of Duryea Borough. (Id. ¶ 4.) These directives stated:
1. Your daily shift consists of eight hours. You are not to work more than eight hours per day or more than forty hours per week unless you receive express permission from Borough Council. You are to go home at the end of your eight hour shift.
2. You are not to attend council meetings as the chief of police and will not be paid for attending council meetings. You may only attend as a citizen.
3. You must follow the purchase order system. You personally will be responsible for getting all purchase orders signed for your department.
4. The dayshift officer must observe the arrival and dismissal times of the Holy Rosary School. Hours are 7:45a.m.-8:20a.m. and 2:00p.m.-2:30p.m. This has become a daily practice and must be continued. Any reason that this is not completed must be in writing and included in your weekly written report.
5. You must patrol 4-5 hours during your eight hour shift. Proof of patrol will be a copy of the daily mileage log. Therefore, a copy of the daily mileage log of all shifts must be included with your weekly report to be handed in on Monday.
6. Council will issue directives to the borough secretary and to the borough solicitor. Any borough council directive which you receive from either the borough solicitor or the borough secretary should be treated as a directive of the borough council. Accordingly, you are required to follow any and all directives given to you by borough council, whether directly, or indirectly through the borough secretary or the borough solicitor.
7. You will submit a weekly written report to the borough secretary on the following Monday by 1:00 p.m. This report shall include a detailed description of your daily activities, including the task of patrolling the Holy Rosary bus stop. Proof of your activities shall include the time at which the tasks were performed. In addition, you will include the starting and ending mileage on the patrol vehicle for the time in which you are patrolling.
8. A copy of the monthly schedule for the police department must be given to the borough secretary by the first of the month.
9. The police car is to be used for official business only. Only borough officials and passengers of officials business only are allowed in the police car.
10. The Duryea municipal building is a smoke free building. The police department is not exempt from this smoking ban. Random checks will be done to insure that the building is smoke free. You will be held responsible for your department to adhere to the no smoking regulation.
11. As Chief of Police, you are to work the dayshift, which is Monday through Friday 7:00a.m.-3:00p.m. As your employer, Duryea Borough Council wants our Chief of Police to be visible and accessible to the public during the dayshift hours.
(Pls. Counterstatement to Defs.' Statement of Material Facts, January 21, 2005 Directives, Doc. 42 Ex. A.) Plaintiff then filed a grievance to these directives pursuant to the Collective Bargaining Agreement on January 29, 2005. (Doc. 40¶¶5-6.) However, Plaintiff's grievance was not resolved through the grievance procedure. (Id. ¶ 8.) The grievance then proceeded to Arbitration. (Id. ¶ 9.) The arbitrator issued an award with respect to this grievance on February 15, 2006. (Id. ¶10.) The arbitrator retained jurisdiction for one-hundred and twenty (120) days following his award in order to assist in the implementation of the award. (Id. ¶ 11.) On or about June 2, 2006, Defendants issued a set of revised directives to Plaintiff. (Id. ¶ 12.) On July 3, 2006, the arbitrator issued his final award. (Id. ¶ 13.)
II. Procedural Background
On July 18, 2005, Plaintiff filed a Complaint alleging civil rights violations of his First, Fourth, and Fourteenth Amendment rights. (Doc. 1.) The Defendants filed their Answer on August 29, 2005. (Doc. 8.) The Plaintiff then filed an Amended Complaint on December 21, 2006. (Doc. 28.) On December 29, 2006, the Defendants filed their Answer to the Amended Complaint. (Doc. 43.) Defendants filed the present Motion for Summary Judgment on December 22, 2006. (Doc. 39.) This motion is fully briefed and ripe for disposition.
Summary judgment is appropriate 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 a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. See Liberty Lobby, 477 U.S. at 256-57.
The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249.
Plaintiff alleges that Defendants violated section 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom or usage . . . subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . .
Plaintiff further alleges that Defendants are liable under Section 1983 for violations of their constitutional rights under the First Amendment, Fourth Amendment, and Fourteenth Amendment based upon their actions under color of law.
I. Fourth Amendment Claim
In the statement of jurisdiction, Plaintiff alleges violations of the "First, Fourth and Fourteenth Amendments" to the United States Constitution. (Am. Compl. ¶ 15, Doc. 38.) The Fourth Amendment to the United States Constitution, which protects against unreasonable searches and seizures, has no applicability to this case.
II. Count I - Fourteenth Amendment Due Process
In Count I of the Amended Complaint, Plaintiff Guarnieri alleges that he was denied both pre-deprivation and post-deprivation process pursuant to the Fourteenth Amendment. To establish a cause of action for a procedural due process violation, Plaintiff must first prove that a person acting under color of state law deprived him of a protected property or liberty interest; and second, he must show that the procedures available to him failed to provide him with due process of law. See, Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).
A. Post-Deprivation Process
The Third Circuit Court of Appeals has repeatedly held that, "in cases in which 'a due process claim is raised against a public employer, and grievance and arbitration procedures are in place, . . . those procedures satisfy due process requirements 'even if the hearing conducted by the Employer . . . [is] inherently biased."" Leneny v. City of Pittsburgh, 183 F.3d 220, 228 (3d Cir. 1999) (quoting Dykes v. Southeastern Pa. Trans. Auth., 68 F.3d 1564, 1571 (3d Cir. 1995)). Thus, "[i]n order to state a claim for failure to provide due process, a plaintiff ...