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Clark v. Borough

United States District Court, Third Circuit

February 12, 2013




This suit arises from alleged constitutional and state law violations committed by Colwyn Borough municipal officials and Colwyn Borough, itself. Each of the five plaintiffs in this action brings claims against the following defendants: Colwyn Borough, Deputy Police Chief Wendell Reed, former Colwyn Borough Police Officer Trevor Parham, and Colwyn Borough Council President Tonette Pray. Only certain of those claims are pertinent to the Court’s present decision. In particular, plaintiff Maurice Clark, Sr. brings a § 1983 supervisory liability claim against Reed and Pray for Fourth Amendment deprivations allegedly committed by Parham. The other four plaintiffs, Kevin Banks, Sr., Bryant Sterling, Clinton Craddock, and Wesley Seitz, all of whom were members of the Colwyn Borough Police Department during the events at issue (“Officer Plaintiffs”), assert claims against Parham, Reed, and Pray under the Pennsylvania Whistleblower Law. The defendants have moved to dismiss the above-referenced claims under Federal Rule of Civil Procedure 12(b)(6). The defendants have also moved to sever into a separate suit all claims brought by the Officer Plaintiffs.[1]

The Court will grant Parham’s motion to dismiss the Whistleblower claims brought against him by Sterling, Craddock, and Seitz, but will deny the defendants’ motions to dismiss the other Whistleblower claims and Clark’s supervisory liability claim. The Court will also deny without prejudice the defendants’ motions to sever the claims of the Officer Plaintiffs.

I. Factual Allegations[2]

The following is a brief recitation of only those facts relevant to the instant motions to dismiss.

A. Maurice Clark, Jr.

On two separate occasions in the summer of 2011, Trevor Parham, then an officer with the Colwyn Borough Police Department, arrested and placed in jail 64-year-old Maurice Clark, Jr., a private citizen. Parham did so despite lacking a reason to arrest Clark in either instance. In each of the two reports Parham filled out following his arrests of Clark, he falsely stated that Clark had threatened to fight him and cited Clark for disorderly conduct. SAC ¶¶ 13-36.

Parham continued to monitor Clark during the ensuing months. Numerous times during the fall of 2011, Parham drove up and down the block on which Clark lived, sometimes slowing down as he passed Clark’s residence and giving Clark “dirty looks.” Additionally, shortly after roll call at the police station on November 8, 2011, Parham announced to his fellow officers that, if they saw Clark, they should “lock him up” and that Parham would take care of the paperwork. Other officers who were present understood Parham to mean that they should arrest Clark on sight, whether or not they had justification for doing so. Id. ¶¶ 37, 40, 49-50, 66-67.

Clark complained about Parham’s conduct to Colwyn Borough officials, including Deputy Chief Reed and Council President Pray. Reed and Pray failed to discipline Parham for his conduct, though, and even went so far as to take adverse actions against other officers who attempted to report or stop Parham’s improper behavior. Id. ¶¶ 41, 183.

B. Officer Plaintiffs

Officers Banks, Sterling, and Craddock were all present when Parham gave his November 8 directive. Seitz, who was a lieutenant in the department, learned of Parham’s instruction at some point after it was issued. Banks and Sterling both complained to Deputy Chief Reed about the impropriety of Parham instructing other officers to arrest Clark without cause. They, Craddock, and Seitz also reported other instances of Parham’s misconduct to Reed or others in the department. Id. ¶¶ 49-50, 57, 59, 66-67, 71-74, 87, 104-05, 108, 148, 158.

By that point, the Colwyn Borough Police Department had broken into two factions. One was helmed by Parham, Reed, and Pray. Because the Officer Plaintiffs had complained about Parham, they were now viewed as members of the opposition. After each of the Officer Plaintiffs complained to Reed and others about Parham’s misconduct, he was subjected to retaliation by the Parham/Reed/Pray faction and was eventually removed from active duty with the police department. Id. ¶¶ 51-60, 69-70, 77-81, 88, 134-45, 148, 157-76.

Banks was terminated by the Colwyn Borough Council on December 30, 2011, without prior notice or a hearing. Two weeks earlier, Reed had been overheard saying, “Kevin Banks was the cause of the problem, and I will get that little son of [a] bitch anyway I can!!!” On January 10, 2012, Reed then placed Sterling on immediate administrative leave and informed him that this action was being taken because the mayor of Colwyn Borough had ordered an investigation into a traffic stop that Sterling had conducted the previous November. When Sterling spoke to the mayor three days later, however, the mayor told Sterling that he was unaware of any such investigation. On May 30, 2012, Reed similarly notified Craddock that he was being removed from the schedule, and Craddock was suspended without a hearing. Id. ¶¶ 58, 60, 77-79, 143-45 (alteration omitted).

Lieutenant Seitz was terminated after conducting an investigation in late April or early May 2012 into allegations that Parham had tased a minor while in police custody. During a meeting with Pray, Reed, and another Borough Council member that took place after the close of Seitz’s investigation, Pray stated that they should not inform the mayor about the tasing incident and that they should downplay it as much as possible. Seitz responded that Parham had engaged in criminal conduct and that he would not participate in any cover-up of such activity. Following that meeting, the Borough Council twice placed Seitz on administrative leave. Each time, the mayor intervened and ordered Seitz to return to duty. On August 2, Pray finally terminated Seitz without notice or a pre-termination hearing. Id. ¶¶ 149-61, 167-72, 176.

In addition, after Banks lodged his first complaint against Parham, Parham instituted a new “community policing” policy, whereby an officer was assigned to do foot patrol every two hours. Banks was the only officer assigned to foot patrol under this policy. Parham admitted to several other officers that he was punishing Banks with foot patrol because Banks was friends with Clark. When Banks complained to Reed about the foot patrol assignment and Parham’s November 8 order, Reed did not take any ...

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