IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
February 20, 2013
EDWARD KOREN PLAINTIFF,
FRANK NOONAN AND MARIA FINN DEFENDANTS.
The opinion of the court was delivered by: Rufe, J.
Plaintiff Edward Koren, a retired Pennsylvania State Police Lieutenant, filed suit against Defendants, the Commissioner and an employee of the State Police, alleging that Defendants acted to scuttle Plaintiff's candidacy for elective office by insinuating to the media that because Plaintiff did not retire with an honorable discharge, he committed serious misconduct. Plaintiff brings claims for violation of the following constitutional rights as secured by 42 U.S.C. § 1983: retaliation for exercise of his First Amendment right to run for public office (Count One), invasion of privacy (Count Two), denial of due process (Count Three), and denial of equal protection of the laws (Count Four). Plaintiff also asserts a state law claim of willful misconduct (Count Five). Defendants have moved to dismiss the Complaint.
I. FACTS ALLEGED IN THE COMPLAINT
Plaintiff alleges the following facts, which are assumed to be true for purposes of the motion to dismiss. Plaintiff had a distinguished career with the State Police from 1978 until he retired in 2005. At the time of his retirement, the State Police had no standard policy governing when a trooper retired with an honorable discharge, as opposed to simply retiring, and Plaintiff did not receive an honorable discharge. In 2011, Plaintiff ran as a Democrat for the office of District Attorney of Lehigh County. During the campaign, Defendant Maria Finn, acting at the direction of Defendant Frank Noonan, the Commissioner, provided false information to an area newspaper that at the time of Plaintiff's retirement, an honorable discharge was given when a member of the State Police "did not engage in serious misconduct while employed" and that the "vast majority" of troopers retire with an honorable discharge. *fn1 These false statements were made to retaliate against Plaintiff for running against the sitting Republican District Attorney of Lehigh County. According to Plaintiff, Defendant Noonan in 2011 conducted a secret, "second" review of Plaintiff's personnel record and again denied Plaintiff an honorable discharge. *fn2 Plaintiff also alleges that despite his exemplary record he was denied an honorable discharge, but that honorable discharges were awarded to some employees of the State Police who had committed serious misconduct.
II. STANDARD OF REVIEW
Dismissal of a complaint under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted
is appropriate where a plaintiff's "plain statement" does not possess
enough substance to show that plaintiff is entitled to relief.
*fn3 In determining whether a motion to dismiss is
appropriate the court must consider those facts alleged in the
complaint, accepting the allegations as true and drawing all logical
inferences in favor of the non-moving party. *fn4
Courts are not bound to accept as true legal conclusions
couched as factual allegations. *fn5 Something more than a
mere possibility of a claim must be alleged; the plaintiff must allege
"enough facts to state a claim to relief that is plausible on its
face." *fn6 The complaint must set forth
direct or inferential allegations with regard to all the material
elements necessary to sustain recovery under some viable legal
theory. *fn7 The court has no duty to
"conjure up unpleaded facts that might turn a frivolous claim . . .
into a substantial one." *fn8
A. First Amendment
To state a claim for First Amendment retaliation, 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." *fn9 Plaintiff also must allege that the claimed retaliatory actions were more than de minimis . *fn10 In the context of this case, Plaintiff has not met his pleading burden. Plaintiff alleges that Defendants falsely implied that he had committed misconduct as a trooper. However, at the time these statements were made, Plaintiff was no longer employed by the State Police; he was a candidate for political office and "more is fair in electoral politics than in other contexts." *fn11 Plaintiff willingly engaged in "the rough and tumble of local politics," and the facts as alleged would not support a finding that the claimed retaliation was sufficient to deter a person of ordinary firmness from entering that arena. *fn12 The Court does not hold that false statements during a political campaign can never give rise to a constitutional violation, only that Plaintiff has not alleged a claim in this case.
Furthermore, although there is unquestionably a constitutional right to associate for political purposes, and for qualified voters to cast their votes effectively, there is no right to be elected to political office. *fn13 Plaintiff ran for office unsuccessfully; a losing campaign is not a constitutional injury.
B. Right to Privacy "An individual has a constitutional right to privacy which protects 'the individual interest in avoiding disclosure of personal matters.'" *fn14 This right to privacy in confidential information includes medical and financial records, for example, but does not include information divulged in a police report. *fn15 The Court need not decide whether Plaintiff's personnel records are protected under the right to confidentiality, because Plaintiff does not allege that his records were wrongly released; to the contrary, he alleges that he was wronged by the failure to release his personnel records and by a false insinuation that Plaintiff had committed serious misconduct. *fn16 Because no actual information from Plaintiff's personnel file was released, he cannot state a claim for invasion of privacy. *fn17
Moreover, Plaintiff has not alleged a constitutional injury. A
plaintiff cannot state a claim for damage to his reputation alone,
without "some concomitant infringement of a protected right or
injury." *fn18 In Seigert v. Gilley,
*fn19 the Supreme Court held that a plaintiff
could not establish a constitutional deprivation where a former
employer responded with a scathing letter when the plaintiff requested
a letter of recommendation for a potential employer several weeks
after the plaintiff had voluntarily resigned. *fn20
The Supreme Court held that "[t]he statements contained
in the letter would undoubtedly damage the reputation of one in his
position, and impair his future employment prospects. . . . But so
long as such damage flows from injury caused by the defendant to a
plaintiff's reputation, it may be recoverable under state tort law but
it is not recoverable" as a constitutional violation.
*fn21 Plaintiff argues that Seigert does not bar
his claim because the harm came not when he retired from the State
Police but when he exercised his First Amendment right to run for
office. But the essential holding of Seigert -- that the Constitution
not a substitute for defamation claims -- applies with equal force
to this case. *fn22
C. Due Process
"The Fourteenth Amendment prohibits state deprivations of life,
liberty, or property without due process of law. . . . [A]n individual
does not have a protected property interest in reputation alone."
*fn23 Plaintiff's due process claim is based on
Defendant Noonan's decision to conduct a second, secret review of
Plaintiff's discharge status and once again deny Defendant an
honorable discharge. Although the liberty to pursue a calling or
occupation is secured by the Fourteenth Amendment, *fn24
Plaintiff was not deprived of this interest because he
voluntarily retired from the State Police. Therefore, Plaintiff also
has no entitlement to the sort of "name-clearing hearing" that has
been deemed appropriate in cases of dismissal for misconduct.
*fn25 Moreover, Plaintiff does not allege that he
requested a hearing at the time of his retirement, and a later review
is not a matter of constitutional concern because Plaintiff no longer
had a protected interest in his employment.
D. Equal Protection
Plaintiff's equal protection claim is based on the allegation that troopers accused of misconduct have received honorable discharges while he did not. The Court need not decide whether these facts state a claim under the Equal Protection Clause of the Fourteenth Amendment, because any such claim is time-barred as a matter of law.
Claims brought pursuant to § 1983 are governed by the statute of
limitations applicable to a personal injury action brought under state
law. *fn26 In Pennsylvania, that period is
two years. *fn27 A § 1983 claim accrues "when
the plaintiff has a complete and present cause of action, that is,
when the plaintiff can file suit and obtain relief." *fn28
In this case, Plaintiff does not allege that he was
unaware that his retirement was not classified as an honorable
discharge when it became effective in 2005. The alleged second review
in 2011 did not revive the claim, as any harm accrued at the time of
the initial determination.
E. Qualified Immunity
Defendants also move for dismissal on the basis of qualified immunity, which requires the Court to determine (1) whether the facts alleged by the plaintiff show the violation of a constitutional right; and (2) whether the right at issue was clearly established at the time of the alleged misconduct. *fn29 Because the Court has determined that Plaintiff has not alleged a violation of a constitutional right, Defendants are entitled to qualified immunity.
F. State-law Claim of Willful Misconduct
In Count Five, Plaintiff alleges that Defendant Finn had actual knowledge that she was not authorized to release personnel information, but did so with outrageous and willful disregard of Plaintiff's rights. An employee of an agency of the Commonwealth of Pennsylvania is entitled to sovereign immunity unless a statutory exception applies, or, the conduct falls outside the scope of the individual's employment. *fn30 The issues raised turn on the interpretation of Pennsylvania law. In his memorandum in opposition to the Motion to Dismiss, Plaintiff states that "Plaintiff does not disagree that, if all federal claims are dismissed the state pendant claims for willful misconduct should be removed to state court." *fn31 As all of the federal claims will be dismissed, the Court declines to exercise jurisdiction over the state-law claim, and Plaintiff may pursue his claims in the appropriate forum.
Plaintiff has failed to state a claim of any right secured by the United States Constitution. Plaintiff has not requested leave to file an amended complaint, and under the facts as alleged, it is unlikely that, even if a claim could be stated, Plaintiff could overcome the hurdle of qualified immunity. The Court therefore has determined that the § 1983 claims will be dismissed with prejudice, and the state-law claim will be dismissed without prejudice to its assertion in the appropriate state court. An order will be entered.