The opinion of the court was delivered by: Chief Judge Kane
The background of this order is as follows: Plaintiff, a former police officer with the City of Lebanon Police Department, was terminated from his position on March 16, 2008. (Am. Comp. ¶ 40.) Following his termination, Plaintiff sought and obtained employment with the Township of Annville. (Id. ¶ 54.) Plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging that the City of Lebanon and six individual Defendants deprived him of his constitutional rights. The alleged constitutional violations are premised on Plaintiff's alleged retaliatory discharge and on allegedly defamatory statements made to Plaintiff's new employer.
All Defendants have moved to dismiss the complaint variously alleging that it fails to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) and public official immunity under Pennsylvania state law.
The Court is guided by the pleading standards the Supreme Court recently announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) and by long-standing principles requiring that a plaintiff must establish an individual claim for relief as to each named defendant. See Thomas v. Independence Twp., 463 F.3d 285 (3d Cir. 2006) (dismissing claims where no allegations were made that defendants were personally involved in the wrongs alleged).*fn1 As will appear more fully below, Plaintiff's complaint is seriously deficient when analyzed under these standards. The complaint is a lengthy recitation of events which names, but does not necessarily identify, all Defendants, their relationship to Plaintiff, or their role in effectuating the harm alleged.
Plaintiff alleges that in 2006, with the permission of his superiors, he began to investigate an old unsolved murder case on his own time. (Am. Comp. ¶¶ 16, 19.) In the course of his investigation, Plaintiff encountered Michelle Gooden, a private citizen who claimed to also be investigating the case and writing a book on the murder. (Id. ¶ 20.) Plaintiff claims that he was "harassed" by Chief of Police Defendant Harvey because Gooden generated a controversial newspaper article about the case. (Id. ¶¶ 23-24.) Months later, after a suspect had developed, Gooden made allegations to Plaintiff that Defendant Arnold had a personal involvement with the case: his ex-wife allegedly had an affair with the murder suspect's father. (Id. ¶ 26.) Gooden requested Arnold's recusal from the case; Plaintiff took no part in initiating the newspaper article or inviting Arnold's recusal. (Id. ¶ 27.)
In February of 2008, Defendant Wright chastized Plaintiff for attending a memorial service for the victim, and he accused Plaintiff of leaking information to the citizen investigator. (Id. ¶ 32(a).) Thereafter, Defendants Wright and McAllister notified Plaintiff that he was the subject of an internal investigation for removing evidence. (Id. ¶ 36.) Defendants Harvey, Anspach, and McAllister notified Plaintiff of his termination on March 6, 2008. (Id. ¶ 40.)
Plaintiff alleges that, following his termination, he accepted part time work with the Annville Police Department and that Defendant Arnold wrote to that department advising that he would refuse to prosecute charges initiated by Plaintiff. (Id. ¶¶ 54-55.) Defendant Carpenter advised two citizens that Plaintiff was dismissed from employment at the City of Lebanon Police Department for stealing. (Id. ¶ 56.)
Plaintiff maintains that these events give rise to four claims: § 1983 civil rights violations based on First Amendment retaliation, conspiracy in violation of state and federal law, state law wrongful discharge, and state law defamation. The facts alleged are sufficient to support only the defamation claim. Accordingly, the motions to dismiss will be granted in part.
A. Retaliation for Protected Speech
To bring a claim for First Amendment retaliation under 42 U.S.C. § 1983, a public employee must allege 1) that he or she engaged in "protected speech," 2) that the government employer responded in a matter sufficient to deter a person of "ordinary firmness" from exercising his or her First Amendment rights, and 3) causation between the protected speech and the retaliatory action. Miller v. Clinton County, 544 F.3d 542, 547-48 (3d Cir. 2008); Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). To be protected, the speech at issue must be made by the plaintiff as a citizen, rather than as an employee, and the speech must implicate a matter of public concern. Miller, 544 F.3d at 548.
The complaint fails to identify words or conduct Plaintiff alleges to be the protected speech which is the subject of the claimed retaliation. In fact, Plaintiff specifically disclaims making any statement about his investigation or releasing police reports to the newspaper, to his superiors, or to the Attorney General, despite Gooden's requests. Thus, Plaintiff has not alleged any spoken words that constitute protected speech under the First Amendment.*fn2
Plaintiff's actual, physical investigation into the unsolved murder, is also not protected conduct in this case. See, e.g., Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 158 (3d Cir. 2002) (discussing that First Amendment "speech" includes certain types of expressive conduct, as well as words). To determine whether given conduct is protected speech, a court must conduct a fact-intensive inquiry into the nature and factual context of the conduct, as well as the environment in which it was undertaken. Id. If the "activity was sufficiently imbued with the elements of communication to fall within the First Amendment's scope," it is protected. Id. (quoting Spence v. Washington, 418 U.S. 405, 409-10 (1974)). An action is "sufficiently imbued with elements of communication" if the plaintiff "intended subjectively for his conduct to communicate to persons whom he expected to observe it... [and] observers understood the message the [plaintiff] intended his conduct to convey." Id. at 161. Thus, the inherent communicative and meaningful nature of the conduct is important. See Cunningham v. New Jersey, 452 F. Supp. 2d 591, 595-95 (D.N.J. 2006). The burden is on the putative speaker to prove that his conduct is "sufficiently imbued with elements of communication." Tenafly, 309 F.3d at 161.
Applying the above test to the facts articulated by Plaintiff, the Court finds that no protected speech has been alleged. Plaintiff's complaint does not allege that his action in recommencing the unsolved murder investigation, his attendance at the memorial service, or his cooperation with Gooden was intended to convey speech. Thus, Plaintiff's allegations are insufficient to state a First Amendment claim. Absent allegations of an expressive intent and recitation of non-conclusory facts in support of that claim, the Court cannot derive an expressive intent from a police officer engaged in investigative duties, even on a "volunteer" basis.*fn3
Therefore, because Plaintiff's actions in investigating the unsolved murder were not inherently expressive, and Plaintiff alleges no facts to support a finding that he intended to convey a message or was likely to be interpreted as conveying a message, the Court finds that Plaintiff has failed to adequately allege that he engaged in protected speech in investigating the Reber murder.
Should Plaintiff restate his claim consistent with the standards outlined here, the Court notes that Plaintiff must specify the facts alleged against each individual, named Defendant. The complaint now before the Court does not satisfy this most basic pleading requirement, but because no constitutional claim is ...