The opinion of the court was delivered by: James Knoll Gardner United States District Judge
This matter is before the court on Defendants, City of Reading and
William M. Heim's Motion for Summary Judgment Pursuant to Fed.R.Civ.P.
56, filed April 20, 2012 together with Defendants, City of Reading and
William M. Heim's Memorandum of Law in Support of Motion for Summary
Judgment Pursuant to Fed.R.Civ.P. 56. *fn1 On
May 7, 2012 Plaintiff Mark Groff's Memorandum of Law in Opposition to
Defendants' Motion for Summary Judgment Pursuant to F.R.C.P. 56 was filed. *fn2
For the following reasons, I grant defendants' motion for
summary judgment in part and deny it in part.
I deny defendants' motion for summary judgment on the First Count of plaintiff's Complaint against defendant City of Reading, Pennsylvania, alleging a violation of plaintiff's federal procedural due process rights. Specifically, I conclude that there are questions of fact which preclude granting summary judgment to the City, and which must be determined at the jury trial of this matter. More specifically, I conclude that the associations policy of the City of Reading Police Department's General Order 0484 is not unconstitutionally vague on its face, but may be unconstitutionally vague in its application to plaintiff (depending on how the jury resolves certain factual disputes).
In addition, I conclude that it would be improper to grant summary judgment to the City because it is for the jury to determine the basis for plaintiff's termination by the City. Specifically, the jury must determine whether plaintiff was terminated as a police officer by the City of Reading only for a violation of the police department's associations policy (as alleged by plaintiff) or for the multiple reasons advanced by defendants.
I further conclude that plaintiff has established each element of municipal liability based upon the policies of the City of Reading Police Department.
Finally, I grant defendants' motion for summary judgment on the Second Count of plaintiff's Complaint, which is a claim against defendant William M. Heim, individually. Although defendant Heim is the Reading Chief of Police, he was sued in the Second Count only in his individual capacity. Like the First Count against the City, the Second Count against Chief Heim alleges violation of plaintiff's federal procedural due process rights.
I entered judgment in favor of defendant William M. Heim, individually; dismissed the Second Count of plaintiff's Complaint; and dismissed defendant Heim as a party to this action. *fn3
Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331.
Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff's claims allegedly occurred in Berks County, Pennsylvania, which is located within this judicial district.
Plaintiff's Claims On June 6, 2011 plaintiff Mark. S. Groff filed a two-count Complaint against the City of Reading, Pennsylvania and William M. Heim, the Chief of Police of the City of Reading.
Count I of plaintiff's Complaint *fn4 alleges a cause of action pursuant to 42 U.S.C. § 1983 against the City of Reading, Pennsylvania for violation of plaintiff's procedural due process rights under the Fourteenth Amendment of the United States Constitution.
Count II avers a claim against Chief Heim, in his individual capacity, for a violation of plaintiff's federal procedural due process rights.
In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Federal Home Loan Mortgage Corporation v. Scottsdale Insurance Company, 316 F.3d 431, 433 (3d Cir. 2003). Only facts that may affect the outcome of a case are "material". Moreover, all reasonable inferences from the record are drawn in favor of the non-movant. Anderson, supra.
Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See Watson v. Eastman Kodak Company, 235 F.3d 851, 857-858 (3d Cir. 2000).
Plaintiff cannot avert summary judgment with speculation or by resting on the allegations in his pleadings, but rather must present competent evidence from which a jury could reasonably find in his favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995).
Based upon the pleadings, record papers, depositions, affidavits, exhibits and the uncontested facts submitted by defendants in their statement of undisputed facts and by plaintiff in his counterstatement of facts, the pertinent facts are as follows.
Plaintiff Mark Groff was employed by the City of Reading Police Department in January 2005 as a civil-service police officer. All police officers hired by the City of Reading Police Department go through a civil-service process which is governed by the City's Civil Service Board.
Defendant William M. Heim is currently employed as the Reading Chief of Police. Chief Heim was been employed in this capacity for nine years. Chief Heim's duties are contained in the Police Department's General Order No. 0202.
General Order No. 0202 grants Chief Heim the authority and responsibility for the management, planning, direction and control of the operations and administration of the Reading Police Department. General Order No. 0202 further grants Chief Heim the authority to recommend appointments, promotions, suspensions, demotions or termination of employment to the Reading Mayor or to the Reading City Council.
When plaintiff was hired as a Reading Police Officer, General Order No. 0408 was distributed to him. This General Order purported to be a progressive disciplinary policy to which Officer Groff was subject. General Order No. 0408 was issued on May 15, 1999, effective September 30, 1999. The copy of General Order No. 0408 given to plaintiff contained penalty recommendations and reckoning periods. *fn5
The penalty recommendations and reckoning periods were rescinded by the March 10, 2003 Order of the Pennsylvania Labor Relations Board. However, those penalty recommendations and reckoning periods were not removed from the copy of General Order No. 0408 given to plaintiff and other officers hired after the March 10, 2003 Order.
While there is ample evidence in the record to demonstrate that Chief Heim and the Fraternal Order of Police knew that the penalty recommendations and reckoning periods were rescinded from General Order No. 0408, there is no evidence that plaintiff was ever specifically notified of that fact. To the contrary, plaintiff contends that he believed that all the penalty recommendations and reckoning periods were a part of General Order No. 0408.
Plaintiff received training from the Municipal Police Officer's Education & Training Commission ("MPOETC"). Part of plaintiff's MPOETC training covered gangs and outlaw motorcycle clubs, including the Pagans and Hell's Angels. Plaintiff was instructed that outlaw motorcycle gangs attempt to legitimize themselves by joining mainstream motorcycle groups.
In the motorcycle world, outlaw motorcycle clubs, sometimes known as motorcycle gangs, are part of the one percent subculture which has no respect for law and order and which lives by its own rules. Outlaw motorcycle gangs are commonly involved in criminal activity, including, but not limited to, prostitution, drug trafficking and murder for hire.
Plaintiff was a member of the United States Marine Corps from 1989 until receiving an honorable discharge in 1993. During his employment with the Reading Police Department, plaintiff was a member of the Reading Chapter of the Leathernecks Motorcycle Club ("Leathernecks"), a nationally recognized motorcycle club with membership comprised of honorably discharged United States Marines.
Plaintiff became a member of the Leathernecks in 2000. During his affiliation with the Reading Leathernecks, plaintiff held the position of Sergeant-at-Arms for two-to-three years. As Sergeant-at-Arms, plaintiff was responsible for the security of the club. While plaintiff was a member of the Leathernecks, it was not an outlaw motorcycle gang, nor was it a support club of the Pagans.
In June 2008, members of the Reading Police Department observed plaintiff on different occasions with members of the Pagans Motorcycle Club ("Pagans"). The Pagans is one of four notorious outlaw motorcycle gangs, along with the Hell's Angels, the Warlocks and the Outlaws Motorcycle Club. The Pagans, like many other outlaw motorcycle gangs, have a number of support, or "sister", motorcycle clubs pledging their allegiance to the Pagans.
The Pagans are involved in every facet of criminal activity which produces a profit for them, including, but not limited to, the manufacturing and distribution of methamphetamines, prostitution, and serving as hired hit men for organized crime. The Pagans have also been linked with white supremacy organizations. The Pagans use violence and intimidation to control other motorcycle clubs and citizens.
There are several outlaw gangs operating in the Reading, Pennsylvania area, but the Pagans are the controlling outlaw motorcycle gang. During the time frame of this case, Bobby Quinter was President of the Reading Chapter of the Pagans. Mr. Quinter uses the moniker "Standup". Mr. Quinter is well-known to law enforcement officers in the Reading, Pennsylvania area.
Plaintiff knew that Mr. Quinter was a "bad guy" at the time that he had contacts with him. Mr. Quinter usually armed himself with hammers, knives, and ax handles; and plaintiff once observed a ball peen hammer in Mr. Quinter's bag. Another member of the Pagans known as "Hillbilly" was known to carry a gun.
Members of both the Leathernecks and the Pagans knew that plaintiff was a Reading Police Officer. Plaintiff worked very hard on his off-duty appearance, attempting to not appear to be a police officer because it could cause him problems outside his employment.
In June 2008 plaintiff was observed by Reading Police Sergeant Madison Winchester riding his motorcycle, while off-duty, with at least one other individual who was wearing a Pagans patch on his jacket. The specifics of this contact are disputed by the parties. Plaintiff contends that he was riding on his own when the members of the Pagans "rode up" on him and asked to speak to him, to which he consented. Defendants contend that it appeared that plaintiff was being friendly with the Pagans and rode away with them.
The next significant incident involving plaintiff and the Pagans occurred on March 17, 2009, St. Patrick's Day, at Trooper Thorn's Irish Beef House in Reading. On that date plaintiff was drinking and socializing with co-workers from the Reading Police Department. At some point, plaintiff discovered that his motorcycle would not start.
Plaintiff called his wife, Nicole L. Mengel, to come to Trooper Thorn's to assist plaintiff in getting himself and his motorcycle home. When his wife arrived at Trooper Thorn's, plaintiff and fellow Reading Police Officer Andrea Harris were involved in a loud argument in the parking lot outside the establishment. During the argument, plaintiff threw his cell phone to the ground and started walking down Route 10.
After plaintiff started walking away from Trooper Thorn's, his wife picked up his cell phone. The phone rang while she was holding it, and she answered the phone. Bobby Quinter, President of the Reading area Pagans, was on the line. He asked "whats up?" Ms. Mengel denies calling Mr. Quinter. ...