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Livingston v. Borough of Edgewood

November 26, 2008


The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan



For the reasons set forth below, the Court concludes that, at present, neither (a) Plaintiff's federal claims of violation of his First, Fifth, Sixth, or Fourteenth Amendment due process rights, nor (b) Plaintiff's state law claims of intentional infliction of emotional distress, set forth allegations sufficient to withstand Defendants' Partial Motion to Dismiss.*fn1 Given the nature of Plaintiff's Complaint, however, he will be provided twenty (20) days within which to amend his Complaint to set forth clearly-identified causes of action that identify both Plaintiff's legal theory (e.g., specifying that a First Amendment claim asserts violation of Plaintiff's rights to petition as opposed to free speech) and facts suggestive of the proscribed conduct alleged. In accordance with Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), Plaintiff's Amended Complaint must coherently provide both "fair notice" of Plaintiff's specific causes of action and the factual grounds on which each cause of action rests.*fn2 In the absence of amendment within the twenty (20) day period, Defendants' Partial Motion to Dismiss will be granted. In the event of amendment, said Motion may be refiled, at Defendants' discretion, within twenty (20) days from the date of the Amended Complaint.


This is an action brought by Plaintiff Frederick Livingston ("Livingston") against Defendants for alleged federal civil rights and related state law violations during his employment as an Edgewood Borough police officer. More specifically, the action turns on conduct of Edgewood Borough ("the Borough") and its employees (the "Individual Defendants")*fn3 relating and subsequent to Livingston's arrest and trial for criminal conduct of which he was ultimately acquitted.

Plaintiff, an African-American, has been and continues to be employed as a police officer in the Borough. In early August, 2005, the Allegheny County police (not the Borough police) initiated criminal charges against and arrested Plaintiff for rape, statutory sexual assault, incest, endangering the welfare of children, aggravated indecent assault, indecent assault and corruption of minors. The charges arose from allegations of abuse made to Allegheny County by Plaintiff's minor daughter. The Complaint makes no allegation that Defendants were in any way involved in the filing of charges or decision to arrest Plaintiff.*fn4 The Borough Manager and its Mayor attended the August 22, 2005 preliminary hearing on the criminal charges before the District Magistrate.

Plaintiff was suspended from his police officer position, with pay, in early September 2005.*fn5 Five months later, in mid-February, 2006, the Borough held a Loudermill hearing and extended Plaintiff's suspension without pay.*fn6 Plaintiff avers that his hearing was a "sham" because the Defendants refused his offers to undergo a lie detector test and ignored and/or failed to investigate the evidence.*fn7 He also asserts that, during this time, the Individual Defendants were (a) impugning his reputation and (b) misrepresenting the nature/quantity of evidence against him to the community. He attributes this conduct to racial and personal animus. The Court notes, however, that the Complaint makes no allegation of racial discrimination or animus on the part of Defendants prior to Plaintiff's arrest. Compare Brief in Opposition at 19 ("Plaintiff was charged, falsely, with engaging in criminal conduct relating to his minor daughter. The genesis of these charges leading to the sham Loudermill hearing was Defendants' racial hostility towards him."). Cf. supra (noting that genesis of charges was Plaintiff's daughter's allegations against him).

Plaintiff's criminal trial occurred in September, 2006. He broadly alleges that the Individual Defendants conspired, perjured themselves, and improperly and maliciously interfered with that criminal proceeding.*fn8 In support thereof, the factual specifics of the present Complaint assert that one or more of the Defendants testified that in their opinion Plaintiff was not entirely truthful,*fn9 identified to the prosecuting authorities other individuals know to them to have knowledge of Plaintiff, pressured unidentified witnesses to perjure themselves, and tampered with Plaintiff's witness, the Borough Secretary (Donna or Leslie Lewis), by threatening her with termination.*fn10 Plaintiff was acquitted by the jury.

Although Plaintiff was reinstated to his position as a Borough police officer following his acquittal, he alleges that the Individual Defendants have subsequently engaged in discriminatory and retaliatory conduct, including removing Plaintiff from prior job duties; making untrue/unfavorable and racist comments about him; creating and circulating a racial caricature; improperly intercepting/withholding personal mail; general harassment and refusing to assist Plaintiff in police officer work;*fn11 rescheduling his work hours in a manner that eliminates his ability to supplement his salary by working additional hours for other employers; denying vacation/time off requests; discarding his Daily Log Sheets; failing to provide a timely annual review; denying an opportunity to take the Sergeant's exam;*fn12 denying Plaintiff's request for suspension backpay, requiring him to "follow a sham grievance procedure", and improperly interfering when Plaintiff sought assistance from the Fraternal Order of Police ("the FOP") to grieve that denial.*fn13


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted if the complaint fails to set forth sufficient facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). See also Phillips v. County of Allegheny, 515 F.3d 233 (3d Cir. 2008) (explaining, in citing Twombly, that "labels, conclusions, and a formulaic recitation of the elements of a cause of action" do not suffice); id. (noting that the complaint "must allege facts suggestive of [the proscribed] conduct"); id. (requiring plaintiff to allege "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim"); Plaintiff's Brief in Opposition at 4 (noting that Twombly "reflormulat[ed] Conley to require a "showing of 'grounds'"). In so ruling, the court must "accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).


A. First Amendment

The present Complaint avers a general violation of Plaintiff's First Amendment rights, without specification. In their Brief in Support, Defendants correctly observe that the factual allegation apparently related to a free speech claim - Plaintiff's assertion that he was retaliated against for complaining of his treatment - is insufficient as a matter of law, as said speech related exclusively to a private matter/grievance and not to a matter of public concern. See Brief in Support at 5-8. See also, ...

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