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Lakkis v. Lahovski

United States District Court, Third Circuit

May 30, 2013

PETER LAKKIS, Plaintiff,


ROBERT D. MARIANI, District Judge.

I. Introduction and Procedural History

Previously, the Court granted Defendants' Motion to Dismiss (Doc. 6) in a Memorandum Opinion and Order dated November 5, 2012. (Docs. 15, 16). The Court, however, granted Plaintiff leave to file an Amended Complaint which conformed to the requirements set forth in the Opinion. Plaintiff thereafter filed an Amended Complaint on November 20, 2012. (Doc. 17).

Before the Court is Defendants' Motion to Dismiss Plaintiffs Amended Complaint (Doc. 18). For the reasons set forth below, the Court will grant Defendants' motion but will grant Plaintiff leave to file a Second Amended Complaint.

II. Factual Allegations

Plaintiff is a police officer with the Borough of Forty Fort (Amended Complaint ("Am. Compl.", Doc. 17, at ¶ 11), and Defendants are Frederick Lahovski, the Police Chief, and Joe Chacke, the Borough Council President. ( Id. at ¶¶ 2-3).

Plaintiff's Amended Complaint makes the following allegations: on March 4, 2012, "Defendants issued an Order that specifically suppressed First Amendment speech, including but not limited to reporting misconduct of the Police Chief, by mandating that Plaintiff notify the Police Chief in writing' before he is allowed to talk with the Mayor or any Council member." ( Id. at ¶ 7). In response to this order, "Plaintiff spoke out against his free speech being suppressed" because "he was restricted in his right as a citizen to speak with the Mayor, who runs the Police Department, and Borough Council Members who run the town." ( Id. at ¶ 9).

On May 21, 2012, "abiding by the [order], Plaintiff requested in writing' to speak with the Mayor about upcoming borough events due to the Memorial Day Parade and centennial celebration" regarding "the public safety issue surrounding the centennial celebration based on Defendant Lahovski's misconduct." ( Id. at ¶ 10). However, "[t]hat same day, " Defendant Lahovski denied Plaintiff's request and instead "ordered Plaintiff to complete illegal tasks, such as posting flyers on telephone polls in violation of Forty Fort's own Borough Code § 6-601, " and "to canvass the neighbor for information concerning the owner of stolen sunglasses and eye glasses, and not do his normal Police patrol activities while all other officers did their normal Police patrol activities, " ( Id. at ¶ 11).

In response to Defendant Lahovski's allegedly retaliatory conduct, on May 23, 2012, Plaintiff contacted "the Mayor directly through ate message about Defendant Lahovski['s] request for him to perform illegal activities, ... Specifically, Plaintiff texted I need to speak to you at some point. The Chief has advised me to partake in illegal activity. I have no one else to go to.'" ( Id. at ¶ 12). Ultimately, "Plaintiff spoke with the Mayor about Defendant Lahovski's official misconduct of requesting him to perform illegal acts as well as the public safety issue related to the centennial celebration, both of which are matters of public concern as well as him speaking as a citizen." ( Id. at ¶ 13). "The Mayor confirmed Plaintiffs assessment that he was being retaliated against for his Free Speech." ( Id. at ¶ 15).

"Defendants were aware of Plaintiff's protected speech of reporting Police Chiefs official misconduct since a meeting was called and held on May 24, 2012, about Plaintiffs complaints over his free speech suppression and the illegal activity, " and both defendants "were present at that meeting." ( Id. at ¶¶ 16-17).

Finally, "Plaintiff, through counsel, requested that Defendants cease-and-desist Plaintiffs free speech suppression and retaliation; and in turn and out of spite Defendants ordered an internal investigation' on Plaintiff." ( Id. at ¶ 18). "Prior to ordering the "internal investigation", Defendant Lahovski contacted Defendant Chacke on the telephone." ( Id. at ¶ 20).

Plaintiff is suing Defendants under 42 U.S.C. § 1983, alleging that they retaliated against him for engaging in First Amendment protected speech (Count I), that their "Suppression Order" unconstitutionally restricts those free speech rights because it is void for vagueness and is overbroad (Count II), and that they conspired to begin an "internal investigation" against Plaintiff in retaliation for his speech.

III. Standard of Review

A complaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff must aver "factual content that allows the court to draw the reasonable inference that the defendant is liable for the ...

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