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Carl Abernethy v. Timothy J. Mercer

August 9, 2012

CARL ABERNETHY, PLAINTIFF
v.
TIMOTHY J. MERCER, ET AL., DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

We are considering two motions to dismiss filed by Defendants, Timothy Mercer, Brian Lewis, and Dierdri Fishel. This case involves an internal affairs complaint filed by Plaintiff, a Trooper with the Pennsylvania State Police, and the alleged subsequent retaliatory actions of Defendants. Plaintiff brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his First and Fourteenth Amendment rights.

II. Background

The following facts are set forth in Plaintiff's complaint and are taken as true, as they must be when considering a motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In September 2009, Plaintiff, Carl Abernethy, filed for divorce from his wife. On October 19, 2009, the Clearfield County Court of Common Pleas granted Plaintiff and his wife shared legal and physical custody of their son. Later in 2009, Plaintiff discovered that his estranged wife was having an affair with Defendant Lewis, a Corporal with the Pennsylvania State Police. He then filed an internal affairs complaint alleging Lewis's unbecoming behavior. The complaint was assigned to Defendant Mercer, Plaintiff's supervisor, who issued a letter reprimanding Lewis, but concluded there was nothing further he could do about off-duty behavior. Plaintiff alleges that, in response to his complaint, Lewis "solicited Plaintiff's wife to go to . . . Defendant Fishel, to make reports of unspecified allegations against the Plaintiff." (Doc. 1, ¶ 14). On August 4, 2010, Mercer advised Plaintiff that he was being placed on restrictive duty, and that he was "allowed no contact whatsoever with his wife, even as regards to their son. . . " (Id. at ¶ 16). On September 28, 2009, Plaintiff's orders were altered to permit him to communicate with his wife concerning their son. Plaintiff asserts that Fishel, a State College Borough Police Officer and friend of Lewis, conducted an investigation into Plaintiff's actions which "led to bogus disciplinary proceedings." (Id. at ¶ 20).

On March 27, 2012, Plaintiff brought the present action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his Fourteenth Amendment rights to "access the courts and to familial integrity." (Id. at ¶ 22).Plaintiff also brings a First Amendment retaliation claim.On May 25, 2012, Defendants Mercer and Lewis filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On June 7, 2012, Defendant Fishel also moved to dismiss.

III. Discussion

A. Standard of Review

Rule 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we 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." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id.at 570. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556). "[L]abels and conclusions" are not enough, and a court "'is not bound to accept as true a legal conclusion couched as a factual allegation. Twombly, 550 U.S. at 555 (quoted case omitted).

In resolving the motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoted case omitted).

B. First Amendment Retaliation Claim

To bring a retaliation claim, a plaintiff must allege three elements: "(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 265, 296 (3d. Cir. 2006).

We begin by examining whether Plaintiff engaged in constitutionally protected conduct when making a complaint about Defendant Lewis's behavior involving Plaintiff's estranged wife. To determine if a public employee's speech is protected by the First Amendment, we conduct a two-part analysis. Borden v. Sch. Dist., 523 F.3d 153, 168 (3d Cir. 2008). First, we determine whether the employee is speaking about matters of public concern. Id. (citing Connick v. Meyers, 461 U.S. 138, 146, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983). If the speech involves a matter of public concern, then we weigh "the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. (citing Pickering v. Bd. of Edu., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 S. Ct. 2d 811 (1968).

Whether Plaintiff's speech involves an issue of public concern is determined by "the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48. Generally, such speech involves a social or political concern, such as complaining about racial discrimination. Borden, 523 F.3d at 170. "[S]peech on matters of purely private concern is of less First Amendment concern." Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985). Here, Plaintiff asserts that filing a complaint against Lewis for having an affair with his wife is a matter of public concern. The speech, communicated only to other members of the Pennsylvania State Police, dealt with Plaintiff's marital issues. Although Plaintiff attempts to characterize his complaint as a matter of public corruption, it is clearly a matter of purely ...


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