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.
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
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
"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 ...