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Morgan v. Covington Township

March 6, 2009


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is the Motion for Summary Judgment of Defendants Covington Township, Bernard Klocko, and Thomas Yerke. (Doc. 22.) Defendants move for summary judgment on Plaintiff William A. Morgan's claims brought under 42 U.S.C. § 1983.*fn1 For the reasons stated below, the Court will grant in part and deny in part Defendants' motion. The Court will grant the motion as to Plaintiff's claims for violation of his procedural due process rights and his claims for Covington Township's failure to train its employees and/or agents. The Court will deny the motion as to Plaintiff's First Amendment retaliation claim. This Court has jurisdiction over Plaintiff's § 1983 claims pursuant to 28 U.S.C. § 1331 ("federal question jurisdiction").


I. Factual Background

Plaintiff's claims derive from the events surrounding his suspension and termination from Covington Township's ("the Township") police department. Plaintiff began working for the Township police department in May 2002 as a part time police officer. (Defs.' Statement of Material Facts ¶ 1, Doc. 24) (hereinafter "Defs.' Statement"). He was made a full time officer in 2005. (Defs.' App. to Mot. for Summ. J., Ex. 6 at 145, Doc. 23. (hereinafter "Defs.' App."); Morgan Dep. 6:18-19, Doc. 28.)

On July 19, 2007, an incident occurred that precipitated Plaintiff's suspension from the police force. Plaintiff's ex-girlfriend, Jill Mailen, approached the gatehouse of the Eagle Lake residential community and got into a verbal altercation with a security employee named Carla Sodano. (Defs.' App., Ex. 6 at 311; Morgan Dep. 79:2-12.) Mailen, possibly believing Sodano to be another security employee named Jamie Villani, accused her of having sexual relations with Plaintiff.*fn2 (Defs.' App., Ex. 6 at 305, 311.) Villani was living with Plaintiff at the time. (Morgan Dep. 78:5-22.) Covington Township police officer Scott Gaughan was notified of the incident and made aware that Sodano wished to press charges against Mailen. (Defs.' App., Ex. 6 at 311, 314.) Sergeant Bernard Klocko, as superior officer, directed Gaughan to handle the case and file charges. (Id. at 314.) Gaughan charged Mailen and she was issued a citation. (Morgan Dep. 80:6-23.)

After learning of the incident, Plaintiff approached Eagle Lake Chief of Security, Jeff Osborne, who he was on friendly terms with, and asked him if he there was anything he could do about the citation. (Id. at 80-81.) Osborne states that Plaintiff asked if he would talk to Sodano about dropping the charges. (Defs.' App., Ex. 6 at 315.) Osborne told Plaintiff that if he could persuade Mailen to apologize, Sodano would drop the charges. (Id.; Morgan Dep. 88:18-25.) Plaintiff was hesitant for anyone to discuss this possibility with Mailen, fearing she would blame him for the incident and retaliate. (Defs.' App., Ex. 6 at 315; Morgan Dep. 89:9-17.) Osborne states he then told Plaintiff his hands were tied on matter and he could not tell Sodano what to do. (Defs.' App., Ex. 6 at 315.) Plaintiff, on the other hand, asserts Osborne offered to talk to Sodano. (Morgan Dep. 91:10-25.)

Officer Gaughan states that a few days after the Eagle Lake incident, he had a conversation with Plaintiff in which the latter advised him that he was taking care of the situation and that Osborne was going to talk with Sodano to have the charges dropped. (Defs.' App., Ex. 6 at 314.) Plaintiff denies this conversation took place. (Morgan Dep. 86-87.) According to Sergeant Klocko, he asked Gaughan about the status of the case on July 24, 2007, and was informed that Plaintiff had told Gaughan the charges were dropped and the situation settled. (Defs.' App., Ex. 6 at 319.) Sergeant Klocko states he then spoke with Sodano and learned that the charges were not dropped. (Id.) August 9, 2007, in response to Plaintiff's actions surrounding the Eagle Lake incident, Sergeant Klocko composed a memorandum directed to Plaintiff, informing him that he would recommend disciplinary action be taken. (Id. at 318-21.) Plaintiff asserts he never received this memorandum, although he acknowledges having a meeting with Sergeant Klocko in which the latter said Plaintiff was injecting himself into an investigation. (Morgan Dep. 82:13-20, 118-119.)

On or around August 8, 2007, Plaintiff entered the apartment he had shared with Villani (it is not clear whether they continued to live together at this point), removed some of his belongings, and left the door open upon exiting. (Defs.' App., Ex. 6 at 313.) Arriving home that night, Villani was upset and frightened to discover the open door. (Id.) According to Sergeant Klocko, Villani called him the same night to report the incident. (Pl.'s Br. in Opp'n, Ex. B, Doc. 28.)

On August 16, Sergeant Klocko sent a letter to the Township Board of Supervisors ("the Board") filing charges against Plaintiff and requesting he be suspended without pay and terminated. (Id.) He gave the facts of the Eagle Lake incident and also recounted the incident at Villani's apartment. (Id.) He stated that these incidents reflected the "culmination of inefficient performance of duties" by Plaintiff over the previous three years. (Id.) Sergeant Klocko made the following charges:

a. violation of law -- by inserting himself into the situation with the Eagle Lake Security Force, Officer Morgan committed the offense of official oppression, intimidation of witnesses or victims and/or retaliation against witnesses, victim, or party

b. conduct unbecoming an officer -- by entering into the residence of Jamie Villani and removing items, without notice, and leaving the residence unsecured, his actions clearly showed conduct unbecoming an officer

c. inefficiency -- the numerous written warnings and admonishments given to Officer Morgan over the past three years detail his inefficiency, in that he has consistently failed to complete reports required of this position

d. neglect of official duty -- the written warnings and admonishments given to Officer Morgan show that he has consistently neglected to take the basic actions needed to perform his duties as a police officer, to include such simple but needed tasks of keeping his area and his vehicle clean and orderly

e. disobedience of orders -- in spite of numerous warnings, Officer Morgan has failed to take action to improve his performance showing disrespect for the chain of command and a willful refusal to change his behavior (Id.)

On August 17, 2007, the Board sent Plaintiff a letter enclosing a copy of Sergeant Klocko's August 16 letter and informing him that, based on the charges, he was suspended indefinitely with pay, effective the same day. (Id. at Ex. C.) The letter also informed him that his termination had been recommended; he needed to contact the Township Solicitor to go over the charges; he had a right to respond to the charges in writing and/or to request a public hearing; and he had a right to be represented by counsel. (Id.) Plaintiff, through counsel, requested a public hearing by letter dated August 22, 2007. (Id. at Ex. D.)

On August 24, 2007, Plaintiff received a second letter from the Board. (Id. at Ex. E.) Enclosed with the letter were four statements taken in connection with Plaintiff's involvement in the Eagle Lake incident. (Id.) Plaintiff was informed that the statements were being turned over to the Pennsylvania State Police for investigation. (Id.) The letter stated that because the matter was being referred for investigation, Plaintiff's status was changed to administrative leave with pay, effective August 17, 2007, until the investigation was complete. (Id.) It further stated that the Board's previous letter of August 17 was rescinded and no hearing would be held. (Id.)

Though witness statements were forwarded to the state police, they refused to conduct an investigation. (Defs.' App., Ex. 6 at 324.) The matter was then referred for investigation to the Lackawanna County District Attorney, which determined that Plaintiff's actions did not rise to the level of criminal activity. (Id. at 324, 327.)

It appears that after this determination, the Board dismissed the charges against Plaintiff for violation of the law. (Id. at 305.) On September 21, 2007, Sergeant Klocko requested that the Board reevaluate the charges as a violation of departmental policy and neglect of official duty. (Id.) Additionally, he brought new charges of neglect of official duty and conduct unbecoming an officer based on unrelated events that had come to his attention since his previous filing.*fn3 (Id. at 324.)

Based on the new charges, the Board sent Plaintiff a letter on September 28, 2007, informing him of the dismissal of the violation of law charges; of the new charges; that he needed to contact the Township Solicitor to go over the charges; he had a right to respond in writing and/or request a public hearing; and he had a right to be represented by counsel. (Id.) Copies of Sergeant Klocko's charges were enclosed. (Id.) Additionally, Plaintiff was continued on administrative leave with pay pending the Board's decision. (Id.)

A public hearing was scheduled for October 5, 2007, then rescheduled for November 5, 2007. (Defs.' Statement ¶¶ 77, 78.) Testimony was taken at the November 5 hearing, which was then continued until January 15, 2008. (Id. ¶¶ 79, 80.) Plaintiff was not present at either hearing, but was represented there by his counsel. (Id. ¶¶ 79, 80, 82.) At the close of the January 15, 2008 hearing, the Board voted to terminate Plaintiff. (Id. ¶ 81.)

II. Procedural Background

Plaintiff filed a complaint against the Township, Sergeant Klocko, and Chairman of the Board Thomas Yerke on October 27, 2007, alleging three Counts. (Doc. 1.) Count I alleges violation of his right to procedural due process based on harm to his reputation as well as Defendants' failure to provide him an opportunity to be heard prior to his initial August 17, 2007 suspension. Count II alleges retaliation for Plaintiff's exercise of his right to petition the government for redress. Count III alleges that the Township failed to adequately train its employees and/or agents, resulting in constitutional injury to Plaintiff.

Defendants filed an answer to the complaint on December 21, 2007. (Doc. 11.) After completion of discovery, Defendants filed the present motion for summary judgment on November 24, 2008. (Doc. 22.) This motion has been fully briefed and is 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. 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. Id. An issue of material fact is ...

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