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James Luciani v. City of Philadelphia

July 23, 2012

JAMES LUCIANI
v.
CITY OF PHILADELPHIA, ET AL



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

Plaintiff James Luciani has moved to amend his complaint against defendants the City of Philadelphia, Charlesretta Meade*fn1 and Enrico Foglia, and to substitute "Unknown Successor or Representative of Enrico Foglia" for defendant Enrico Foglia.*fn2 For the reasons that follow, I will deny plaintiff's motion for leave to amend his complaint and his motion to substitute.

BACKGROUND

From 1985 until 2008, plaintiff was employed by the City of Philadelphia. Compl. ¶ 20. He worked in the City's Board of Revision of Taxes from 1989 until 2008 and at the time of the events giving rise to this action was a Real Property Evaluator. Compl. ¶¶ 21-22. In that capacity, plaintiff was charged with the responsibility of assigning a dollar value to large commercial properties in Center City Philadelphia including office buildings and similar structures for real estate tax purposes. Compl. ¶ 22. Effective July 31, 2008, plaintiff was terminated. Compl. ¶ 56.

Plaintiff's initial complaint alleges that he was wrongfully terminated without a proper pre-termination hearing. Compl. ¶¶ 51; 56-59. From the outset of this litigation, plaintiff has asserted that he was terminated based on a "false and pretextual charge that Plaintiff had violated the [City's] Residency Requirement."*fn3 Compl. ¶ 60. His complaint alleges that on June 27, 2008, Foglia signed a "Notice of Suspension Without Pay" which stated, inter alia, that A recent investigation by the City's Inspector General has concluded that you are in violation of [the City's residency] requirement by establishing and maintaining your bona fide residence in Woodbury, New Jersey.

Based on the findings of the Inspector General, Federal Bureau of Investigation and as provided in Civil Service Regulation 17.01, the [BRT] is notifying you that you are hereby suspended for thirty (30) calendar days with the intent to dismiss for violation of the residency requirement.

Compl. ¶ 46; see also Compl. Ex. C. According to the allegations in plaintiff's complaint, on July 17, 2008, Foglia signed and the City mailed to plaintiff a Notice of Dismissal which reiterated the Inspector General's conclusion that plaintiff had violated the residency requirement and which again cited the findings of the Inspector General and the FBI. Compl. ¶ 54-55; see also Compl. Ex. D.

Plaintiff's complaint alleges that "[i]n fact, Plaintiff did not violate the Residency Requirement and had always maintained a bona fide residence in the City when he was employed by the City. The City therefore had no valid or legitimate reason to suspend Plaintiff or to terminate his employment . . . ." Compl. ¶ 41. His complaint asserts that defendants wrongfully fired him because he revealed certain information to the City Controller's Office about pervasive corruption in the BRT. Compl. ¶ 29-30. Counts, I, II and III of plaintiff's complaint allege violations of the Fourteenth Amendment as against the City, Meade and Foglia for causing plaintiff to suffer deprivation of his property interests (his right to civil service employment), Compl. ¶ 58, and liberty interests (his interest in "his good name, reputation, honor and integrity), Compl. ¶ 59, under color of state law and without due process of law, Compl. ¶¶ 64-65, 69-70 and 75-76. Counts IV, V and V of plaintiff's complaint assert violations of plaintiff's First Amendment rights, alleging that he was suspended and terminated in retaliation for certain statements plaintiff allegedly made to the City Controller's Office in September 2007 regarding "issues of public concern." Compl. ¶¶ 29-30, 85, 90, 95.

Plaintiff now seeks leave to amend his complaint, asserting that [t]he depositions and production of documents revealed facts that require an Amended Complaint to: (a) [p]lead more particular allegations concerning the violation of Plaintiff's rights by agents and employees associated with Defendant City of Philadelphia . . . ; (b) [n]ame two rogue FBI agents as additional defendants pursuant to claims brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) . . . ; and (c) [p]lead a broad conspiracy, as revealed in discovery, between the City and the rogue FBI agents.

Dkt. No. 19 at ¶ 3. In counts I and II of his proposed amended complaint, plaintiff restates his claims under the Fourteenth Amendment against the City and Foglia's successor or representative. Dkt. No. 19-2 at ¶¶ 153-163. Proposed counts III and IV restate plaintiff's First Amendment claims against the City and Foglia's successor or representative. Id. at ¶¶ 164-176. Counts V and VI of plaintiff's proposed amended complaint seek to add two Bivens claims against FBI Special Agents Brian Nichilo and Raymond Manna for violation of plaintiff's property and liberty interests under the Fifth Amendment. Id. at ¶¶ 177-187. Proposed Count VII seeks to plead a claim of civil conspiracy against the City and the two FBI agents. Id. at ¶ 188-191.

Plaintiff's proposed amended complaint alleges a conspiracy between proposed defendants Nichilo and Manna and Thomas Steel, a contract investigator with the City's Office of Inspector General, to fabricate evidence of a residency violation by the plaintiff in order to extort information from plaintiff about corruption in the BRT, including incriminating information about State Senator Vincent Fumo. See, e.g., Dkt. No. 19-2 at ¶¶ 38,47-49. Plaintiff contends that the original complaint "told only part of the story" because he learned "from the depositions and documents generated during discovery" that Nichilo and Manna decided to target him "as a person who could provide them with information about corruption at the BRT involving former Pennsylvania State Senator Vincent Fumo" at around the same time that the Controller's office reported plaintiff's whistleblowing to his BRT superiors. Dkt. No. 19-1 at 2-3. Plaintiff asserts that Nichilo and Manna sought to "extort" information from plaintiff with the assistance of Steel. Dkt. No. 19-2 at ¶ 38-42. He alleges that "Nichilo and Steel agreed . . . that they would pretend to investigate Plaintiff in an effort to intimidate him" for purposes of obtaining evidence against Fumo and "would confront Plaintiff with . . . threats to his liberty and job." Id. at ¶ 44. Plaintiff now contends that Nichilo and Steel agreed to threaten him with the following allegedly false assertions: (1) "that Plaintiff had failed to report all of his real estate interests on the annual financial disclosure forms he filed with the Commonwealth of Pennsylvania"; (2) "that Plaintiff maintained his residence in Woodbury, New Jersey, for at least 20 years, in violation of the City's residency requirement"; and (3) "that Plaintiff was the target of a Grand Jury criminal investigation for an undefined crime that was related to his name being mentioned in the investigation of" a transaction involving a BRT employee who reduced a real estate assessment in exchange for a bribe from a real estate developer. Id. at ¶ 44(a)-(c).

Plaintiff's proposed amended complaint alleges that Nichilo fabricated a grand jury subpoena and handed it to plaintiff at a meeting in order to scare him into coming forward with additional information about Fumo. Id. ¶ 84-85. In his proposed amended complaint, plaintiff also alleges that Nichilo and Manna created an FBI report -- an FD-302 -- that falsely stated that plaintiff lived in New Jersey in knowing violation of City policy. Id. at ¶ 67. He contends that Nichilo showed a copy of the FD-302 Report to Steel, id. at ¶ 69, and that on June 6, 2008, the OIG issued a report concluding that plaintiff had violated the residency requirement based on the false information Nichilo shared with Steel, while disregarding other information that would have established plaintiff's residence in Philadelphia. Id. ¶¶ 99-104.

Plaintiff received a copy of the OIG report on or about July 17, 2008. Dkt. No. 19-2 at ¶ 131. The report identified Thomas A. Steel as the investigator making the report. Dkt. No. 23-1 at ECF page 3. It also identified Nichilo and Manna as having participated in the investigation. Id. at ECF page 4. Setting forth the basis for OIG's investigation, the OIG report explained that:

On September 19, 2008, FBI Special Agent (S/A) Brian Nichilo reported that BRT employee, James Luciani, may have a conflict of interest involving the purchase of a condominium from James Campanella, a Real Estate developer. S/A Nichilo believed that Luciani ...


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