The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Defendants' Motion for Summary Judgment. (Doc. 44.) For the reasons set forth below, the Defendants' motion will be granted in part and denied in part. The Defendants' motion for summary judgment will be granted as to any Fourth Amendment claims, as they are inapplicable. The Defendants' motion will also be granted as to the official capacity claims against Defendants Dommes, Morreale, Groblewski, Orkwis, Webb, Yager, and Orlowski, as those claims are covered by the claims against Duryea Borough. The Defendants' motion will also be granted as to the Fourteenth Amendment post-deprivation claim, as the Plaintiff received sufficient process in his arbitration pursuant to the Collective Bargaining Agreement. The Defendants' motion will be granted as to the Fourteenth Amendment pre-deprivation 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. The Defendants' motion will also be granted as to the two state claims. However, the Defendants' motion will be denied as to the First Amendment claims for retaliation based upon the right to speech, association, and petition, as material questions of fact exist on those claims.
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 Court has supplemental jurisdiction over the Plaintiff's state claims pursuant to 42 U.S.C. § 1367.
The Plaintiff in this case is Nicholas Lohman, who was hired as a part-time police officer with Duryea Borough on August 11, 1999, and became a full-time police officer in February of 2001. (Defs.' Statement of Material Facts in Support of Mot. For Summ. J. ¶ 1, Doc. 45.) In February 2003, the Duryea Borough terminated the employment of Police Chief Charles Guarnieri. (Id. ¶8.) After the termination of Chief Guarnieri, Duryea had two (2) full-time police officers. (Id. ¶ 10.) However, prior to Chief Guarnieri's termination, there had been at least three (3) full-time police officers in Duryea. (Pls.' Counterstatement of Material Facts ¶ 10, Doc. 51.) The hours normally worked by the third full-time officer were filled by the part-time police officers. (Id.) Defendants assert that in the 2004 fiscal year budget, the budget provided funding for only two (2) full-time police officers. (Doc. 45 ¶ 11.) Similarly, Duryea's budget provided for the funding of two (2) full-time police officers in the 2005 fiscal year budget. (Id. ¶ 12.) On December 28, 2004, Duryea Borough learned that Chief Guarnieri had been reinstated as Police Chief of Duryea Borough. (Id. ¶ 13.) Upon Chief Guarnieri's reinstatement, the Duryea Borough Council resolved to furlough the least senior full-time police officer due to budget constraints. (Id. ¶14.) That officer was Plaintiff Sergeant Nicholas Lohman. (Id.)
Plaintiff counters that there was an allotment for the police chief's salary in another section of the budget in case of his return. (Doc. 51 ¶¶ 11, 12.)
On February 6, 2005, Plaintiff Lohman filed a grievance pursuant to the Collective Bargaining Agreement challenging his termination. (Doc. 45 ¶ 15.) On September 18, 2006, Arbitrator DeTreux of the American Arbitration Association denied Lohman's grievance in its entirety. (Id. ¶ 16.)
On July 18, 2005, Plaintiff filed a Complaint alleging civil rights violations of his First, Fourth, and Fourteenth Amendment rights, as well as violations of state law. (Doc. 1.) The Defendants filed their Answer to the Complaint on August 29, 2005. (Doc. 8.) On December 13, 2006, the Defendants filed an Amended Answer. (Doc. 41.) Defendants filed the present Motion for Summary Judgment on December 22, 2006. (Doc. 44.) 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.
Defendants argue in the motion for summary judgment that the Plaintiff's claims should be dismissed on the grounds of res judicata. However, the Supreme Court held in McDonald v. City of West Branch, Michigan, 466 U.S. 284 (1984) that federal courts are not obligated to accord res judicata or collateral estoppel to an arbitrator's decision. In McDonald, the plaintiff police officer initially brought a grievance through the collective bargaining process after his termination. Id. at 285-86. The arbitrator ruled against McDonald, but he did not appeal the decision. Id. at 286, 287. Rather, he filed a Section 1983 action for violations of his First Amendment rights. Id. at 287. The Court then considered whether the arbitration pursuant to the collective bargaining agreement obligated the federal court to apply res judicata or collateral estoppel to the Section 1983 claims. The Supreme Court definedcollateral estoppel, holding that when a "' court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.'" Id. at 287 n.5 (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).
The Court noted that "arbitral factfinding is generally not equivalent to judicial factfinding," and therefore "in a §1983 action, an arbitration proceeding cannot provide an adequate substitute for a judicial trial." Id. at 291, 292. Thus, the Court held that according preclusive effect to arbitration awards in § 1983 actions would severely undermine the protection of federal rights that the statute is designed to provide. Therefore, we hold that in a § 1983 action, a federal court should not afford res judicata or collateral estoppel to effect an award in an arbitration proceeding brought pursuant to the terms of a collective bargaining agreement.
Id.The Defendants attempt to distinguish McDonald with the Eastern District of Pennsylvania's Brody v. Hankin, 299 F. Supp. 2d 454 (E.D. Pa. 2004). In Brody, the courtheld that the plaintiffs were barred from bringing their claims in federal court after an arbitration decision was rendered on the basis of res judicata. Id. at 459. However, the complaint in Brody dealt with causes of action for breach of fiduciary duty and breach of contract, after the plaintiffs had gone to arbitration on breach of a partnership agreement. Id. The case at bar is analogous to McDonald, in that a police officer later brought a Section 1983 action subsequent to his grievance pursuant to a collective bargaining agreement. The Supreme Court does not permit res judicata or collateral estoppel to bar a Section 1983 claim following arbitration pursuant to a collective bargaining agreement.Although the arbitrator "'decided an issue of fact or law necessary to its judgment,'"this decision does not preclude this Court from considering the Plaintiff's claims, as a collective bargaining agreement's arbitration does not create collateral estoppel or res judicata for a later Section 1983 claim.McDonald, 466 U.S. at 287 n.5 (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).
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.
Defendants argue that the claims against Defendants Dommes, Morreale, Groblewski, Orkwis, Webb, Yager, and Orlowski, in their official capacities, be dismissed. The Defendants motion for summary judgment against these Defendants in their official capacities will be granted, as "[o]fficial-capacity suits . . . 'generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Kentucky v. Graham, 473 U.S. 149, 165-66 (1985) (quoting Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690 n.55 (1978)). The Defendants' motion for summary judgment on official capacity claims against Defendants Dommes, Morreale, Groblewski, Orkwis, Webb, Yager, and Orlowski will be granted.
A. Fourth Amendment Claim
In the statement of jurisdiction, Plaintiff alleges violations of the "First, Fourth and Fourteenth Amendments" to the United States Constitution. (Compl. ¶ 13, Doc. 1.) The Fourth Amendment to the United States Constitution, which protects against unreasonable searches and seizures, has no applicability to this case.
B. Count I - Fourteenth Amendment Due Process
In Count I of the Amended Complaint, Plaintiff Lohman 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).
1. 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 must have taken advantage of the processes that are available to him or her, unless those procedures are unavailable or patently inadequate." Alvin, 227 F.3d at 116 (emphasis added).
In response to his furlough, Plaintiff Lohman elected to file a grievance pursuant to the Collective Bargaining Agreement, and proceeded through the grievance process to arbitration. As the Plaintiff proceeded through arbitration, post-deprivation process was both available and utilized. Plaintiff has presented no evidence that the arbitration proceedings were inadequate.Furthermore, although violations of post-deprivation process are alleged in the Plaintiff's Amended Complaint, the Plaintiff states in his brief that he is not seeking a claim for post-deprivation due process. Therefore, Defendants' motion for summary on the post-deprivation due process claim will be granted.
2. Pre-Deprivation Process
Plaintiff Lohman also alleges that he was denied constitutionally required pre- deprivation procedures pursuant to the Fourteenth Amendment. To establish a cause of action for a pre-deprivation procedural due process violation, the Plaintiff must prove both that a person acting under color of state law deprived him of a protected property or liberty interest; and that the procedures available to him ...