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Malcolm Herman v. Barry Hosterman

October 19, 2011

MALCOLM HERMAN, PLAINTIFF
v.
BARRY HOSTERMAN, ET AL., DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Plaintiff Malcolm Herman initiated this action by filing a complaint on May 11, 2011. (Doc. No. 1.) Plaintiff filed an amended complaint on May 13, 2011. (Doc. No. 3.) On August 5, 2011, Defendants East Buffalo Township and Barry Hosterman filed a motion to dismiss. (Doc. No. 9.) The motion has been fully briefed and is now ripe for disposition. For the reasons stated more fully herein the Court will grant the motion to dismiss.

I. BACKGROUND*fn1

In June 2008, East Buffalo Township and Lewisburg Borough engaged in a study regarding merging the two municipalities' police departments. (Doc. No. 3 ¶ 12.) Although he never attended a public meeting on the subject, Defendant Hosterman, who was serving as Chief of Police of the East Buffalo Township Police Department, made clear to the other officers in the department that he opposed the merger. (Id. ¶¶ 14-15.) Plaintiff, an officer employed by the East Buffalo Township Police Department, supported the merger and made his support known to members of both the Buffalo Township Police Department and the Lewisburg Borough Police Department. (Id. ¶¶ 19-20.) Defendant Hosterman was aware of Plaintiff's support for the merger. (Id. ¶ 21.)

On May 15, 2009, approximately eleven months after the merger study was done, Defendant Hosterman informed Plaintiff via a memorandum that he was under formal investigation because of "alleged harassment and unspecified misconduct." (Id. ¶¶ 22-23.) It is Plaintiff's position that he has never harassed another officer, nor has he been involved in misconduct of any kind. (Id. ¶ 24.) Plaintiff further notes that he believes Defendant Hosterman had never conducted a formal investigation of any other police officer concerning allegations of misconduct or harassment, although such an investigation would have been justified by "prior incidents involving other police officers. (Id. ¶ 25.)

Defendant Hosterman and Cory Iannacone, an attorney retained by East Buffalo Township, interviewed Plaintiff regarding the allegations of harassment and misconduct on May 19, 2009. (Id. ¶ 27.) Although the interview was recorded, Plaintiff was not provided a copy of the interview, nor did he receive a copy of any reports generated following the interview. (Id. ¶¶ 30-31.) Further, when Plaintiff attempted to invoke his Garrity rights during the interview he was told they were inapplicable because no criminal charges were being considered. (Id. ¶ 29.) Plaintiff was never disciplined as a result of the investigation and no adverse action was taken against Plaintiff as a result of the investigation. (Id. ¶¶ 38, 46.)

Two days after the interview, on May 21, 2009, Plaintiff's physician informed Defendant Hosterman that Plaintiff would not be attending work for a three week period as a result of hypertension due to work related stress. (Id. ¶ 32.) On June 4, 2009, Plaintiff's physician informed Defendant Hosterman that Plaintiff's situational stress would prevent him from attending work "until further notice due to situational stress." (Id. ¶ 33.) Plaintiff did not return to work until September 11, 2009. (Id. ¶ 36.) Plaintiff was restored to active status following a physical examination performed by a physician chosen by East Buffalo Township and a medical release from his doctor. (Id. ¶ 39.) Plaintiff alleges that, as a result of Defendant Hosterman's conduct, Plaintiff "lost significant amounts of sick time, overtime, and suffered emotional distress, including anxiety, loss of life's pleasures, loss of sleep, weight loss, and other physical and emotional pain and suffering." (Id. ¶ 40.)

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In reviewing a motion to dismiss, a court may "consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum, 361 F.3d at 221 n.3. The motion will only be properly granted when, taking all factual allegations and inferences drawn therefrom as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). Indeed, the Supreme Court has recently held that while the 12(b)(6) standard does not require "detailed factual allegations," there must be a "'showing,' rather than a blanket assertion of entitlement to relief. . . . '[F]actual allegations must be enough to raise a right to relief above the speculative level.'" Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Put otherwise, a civil complaint must "set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009)).

III. DISCUSSION

Plaintiff raises a claim of First Amendment retaliation raised pursuant to 42 U.S.C. § 1983 against Defendant Hosterman in Count One of the amended complaint and against Defendant East Buffalo Township in Count Two of the amended complaint. (Doc. No. 3.) Regarding the claim against Defendant Hosterman,*fn2 Defendant contends that the claim of First Amendment retaliation must fail because Plaintiff has not suffered from an adverse action sufficient to deter a person of ordinary firmness from exercising his or her rights under the First Amendment. Regarding the claim brought against Defendant East Buffalo Township, Defendants raise two issues: (1) Plaintiff has not stated an actionable constitutional injury; and

(2) Plaintiff fails to identify a a policy, practice, or custom that caused any injury. The Court will consider the motion to dismiss as it pertains to Defendant Hosterman first, and will then consider the motion as it pertains to Defendant East Buffalo Township.

A. Defendant Hosterman

In Count I of Plaintiff's amended complaint, Plaintiff raises a claim pursuant to 42 U.S.C. § 1983 based on alleged retaliation by Defendant Hosterman for Plaintiff having exercised his rights under the First Amendment. "In order to plead a retaliation claim under the First Amendment, a plaintiff must allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action." Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). Defendants contend that Plaintiff has failed to establish the ...


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