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Emigh v. Steffee

May 27, 2009

GEORGE F. EMIGH, PLAINTIFF,
v.
SUSANNE STEFFEE, JEFFREY MILLER, ALLISON JACOBS, JOSHUA GIRAN, HARVEY COLE, LT. COL. JOHN BROWN, LT. JAMES FULMER, DAVID REESE, AND LISA CHRISTIE, DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff George Emigh ("Plaintiff") filed the instant civil action against Defendants Jeffrey Miller ("Miller"), Allison Jacobs ("Jacobs"), Joshua Giran ("Giran"), Harvey Cole ("Cole"), Lt. Col. John Brown ("Brown"), David Reese ("Reese"), and Lisa Christie ("Christie")(collectively, "PSP Defendants") and Lt. James Fulmer ("Fulmer") and Susanne Steffee ("Steffee") pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his First and Fourteenth Amendment rights. Specifically, Plaintiff alleges that he was retaliated against for filing a poor performance review of Allison Jacobs, for filing a Bureau of Professional Responsibility (BPR) complaint with the Internal Affairs Department of the Pennsylvania State Police (PSP) against Defendant Fulmer, and for filing grievances with his union. Plaintiff further alleges that his grievance was settled by the Pennsylvania State Trooper Association ("PSTA") attorney without his consent, he never received a fair hearing, and he was never reimbursed for the reduction of his suspension at settlement.

Pending before the Court are the PSP Defendants' motion to dismiss and motion to strike scandalous and impertinent material (Docket No. 9), Fulmer's motion to dismiss and joinder in co-defendants' motion to dismiss (Docket No. 12), and Steffee's motion to dismiss (Docket No. 14). For the following reasons, the Court will GRANT, in part, and DENY, in part, the PSP Defendants' motion, and will GRANT the motions of Fulmer and Steffee as to as to all of Plaintiff's claims.

II. FACTUAL BACKGROUND

Plaintiff was formerly employed as a Sergeant with the Pennsylvania State Police and stationed at the Indiana Barracks. (Docket No. 1 at ¶ 12). Defendant Jacobs was also employed by the PSP, and Plaintiff was her direct supervisor. (Id. at ¶¶ 13, 14 ). On June 6, 2006, Plaintiff completed a performance review for Jacobs, and designated five areas of her review as "Needs Improvement." (Id. at ¶ 15). On June 8, 2006, Defendant Steffee, who serves as a Magisterial District Judge in Homer City, Pennsylvania, lodged a complaint against Plaintiff in which she alleged sexual misconduct that purportedly occurred during a private party the two attended in October of 2004. (Id. at ¶¶ 16, 19). The report was made by Steffee to Defendant Fulmer, and Plaintiff alleges that it was also made in the presence of Jacobs, who was a friend of Steffee's. (Id. at ¶¶ 17, 18).

Thereafter, in the summer of 2006, Plaintiff was notified that a complaint had been made against him by Steffee. (Id. at ¶¶ 16, 19). On or about August 30, 2006, Defendant Reese emailed Giran regarding the Steffee complaint.*fn1 (Id. at ¶ 22a). In response, Giran indicated that he saw no inappropriate behavior at the party in October of 2004. (Id.). When interviewed on October 6, 2006, Giran changed his report and alleged that Plaintiff participated in misconduct. (Id.). Plaintiff alleges that prior to Giran changing his account of what occurred, he and Reese spoke with Fulmer. (Id.).

On October 11, 2006, Plaintiff was interviewed by Defendant Reese after being administered his Miranda warnings. (Id. at ¶ 27). In the interview, Plaintiff was questioned about the Steffee incident and emphasized that there had never been any sexual contact between Steffee and him. (Id. at ¶ 28).

While the investigation into the Steffee incident was ongoing in October of 2006, Plaintiff received photocopies of two pages from a supervisor's notebook indicating that Fulmer was making derogatory remarks about Plaintiff and that Fulmer believed Plaintiff should be removed from his duties. (Id. at ¶ 22). After receiving this information, Plaintiff filed a BPR worksheet with PSP internal affairs complaining that the notes impeached Fulmer's credibility regarding the Steffee complaint. (Id. at ¶ 23). Plaintiff's complaint was investigated and adjudicated as "not sustained." (Id. at ¶ 24).

On December 18, 2006, Plaintiff was interviewed for a second time regarding the incident and about additional allegations made by Steffee, Jacobs, and Giran. (Id. at ¶ 30). That same day, the District Attorney declined to pursue prosecution against Plaintiff regarding the claims made by Steffee. (Id. at ¶ 29). Plaintiff claims that the District Attorney made this decision because the underlying allegations were not credible. (Id.).

Plaintiff was interviewed for a third time by Defendant Reese on January 17, 2007. At this interview, Plaintiff informed Reese that there was an error in his original statement; Plaintiff now alleges that Reese never fixed this error. (Id. at ¶ 31). Thereafter, on March 7, 2007, Plaintiff was provided with a summary report of the investigation, which indicated that Plaintiff had grabbed Steffee on the buttocks as she had reported, and that Defendants Jacobs and Giran confirmed her story. (Id. at ¶ 32). On March 24, 2007, Plaintiff wrote a letter to Defendant Christie responding to the charges against him and indicated that his statement was never corrected. (Id. at ¶ 32). Plaintiff avers that the written statements and taped interviews of Jacobs and Giran do not indicate that Plaintiff grabbed Steffee's buttocks, but merely that he "grabbed and kissed her." (Id.).

On or about March 16, 2007, Plaintiff met with Defendant Cole and was advised that due to the statements provided by Jacobs and Giran about the Steffee incident, Cole had issued a Disciplinary Action Report against Plaintiff. (Id. at ¶ 33). At this meeting, Plaintiff alleges that Cole stated that Steffee "ha[d] a private agenda" against the Plaintiff, but would not elaborate on that agenda. (Id. at ¶ 34). Cole placed the Plaintiff on Restricted Status on or around May 23, 2007, and advised Plaintiff that he could choose to have his case determined by a Court Marshall or an arbitrator. (Id. at ¶ 35). Plaintiff signed a Member's Selection of Process to have his case heard by an arbitrator. (Id. at ¶ 36). Plaintiff requested the opportunity to submit to a polygraph examination, but this request was denied by Defendant Brown. Brown claimed that the accuracy of the polygraph would be questionable since plaintiff was "intoxicated at the time of the incident." (Id. at ¶ 37).

Defendant Christie issued a Notice of Disciplinary Penalty to Plaintiff on or about June 19, 2007, which included a thirty-five day suspension without pay and an inter-troop transfer. (Id. at ¶ 38). Plaintiff requested that the suspension start on July 13, 2007, which was the date that he intended to retire. (Id. at ¶ 39). Cole denied this request and the suspension commenced on June 25, 2007. (Id. at ¶ 40). On July 2, 2007, Plaintiff filed a grievance form to appeal his discipline. (Docket No. 9-2). On July 18, 2007, Plaintiff filed a second grievance pertaining to his discipline. (Id.).*fn2

After serving the thirty-five day suspension, Plaintiff was transferred to the Belle Vernon Barracks as a Patrol Sergeant. (Docket No. 1 at ¶ 42). Plaintiff retired from the PSP on August 24, 2007. (Id. at ¶ 43). Plaintiff alleges that he advised his PSTA attorney that he did not want to settle his grievance. (Id. at 44). However, on December 7, 2007, Plaintiff was notified that the PSTA and the Commonwealth had agreed to reduce his suspension to fourteen days with the stipulation that the Commonwealth would pay any costs that Plaintiff incurred as a loss of benefits during the suspension. (Id.).

Plaintiff claims that he never received correspondence from the Commonwealth regarding reimbursement for costs and the other provisions of the settlement. (Id. at ¶ 45). Plaintiff also alleges that in retaliation for the filing of his grievances, Defendants Miller and Brown denied him an honorable discharge and did not permit him to purchase his service revolver and PSP hat upon retirement. (Id. at ¶ 50).

III. PROCEDURAL HISTORY

On December 19, 2008, Plaintiff filed the instant complaint alleging violations of his First and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. (Docket No. 1). The PSP moved to dismiss Plaintiff's Complaint and to strike scandalous and impertinent material from same on March 9, 2009. (Docket No. 9). Defendants Fulmer and Steffee similarly filed motions to dismiss on March 16, 2009. (Docket Nos. 12, 14). Plaintiff filed briefs in opposition to the instant motions on April 6, 2009. (Docket Nos. 17, 18). All Defendants filed reply briefs on April 16, 2009. (Docket Nos. 19, 20, 21). Accordingly, Defendants' motions are now ripe for disposition.

IV. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Although Federal Rule of Civil Procedure 8(a) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, it is not enough "to allege mere elements of a cause of action; instead a complaint must allege facts suggestive of the proscribed conduct." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)(quoting Twombly, 550 U.S. at 563 n.8)(internal quotation omitted). Moreover, factual allegations in the complaint may not be "so undeveloped that it does not provide a defendant the type of notice which is contemplated by Rule 8." Phillips, 515 F.3d at 233.

In ruling on a motion to dismiss, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Id. at 233 (internal quotation and citation omitted). "Nonetheless, a court need not credit a plaintiff's bald assertions or legal conclusions when deciding a motion to dismiss." Sands v. McCormick, 502 F.3d 263, ...


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