United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL, Sr., District Judge.
We are considering a motion by Defendants Carlisle Borough, Barry Walters, and Chief Stephen Margeson (collectively, "Defendants") to dismiss Plaintiff's amended complaint. (Doc. 24). Plaintiff, a police officer in the Borough of Carlisle, filed this Section 1983 lawsuit on September 9, 2013. (Doc. 1). Plaintiff claims in eight counts that Defendants violated his First Amendment right to free speech; his Fourteenth Amendment right to substantive due process; the Omnibus Crime Control and Safe Streets Act; the Pennsylvania Wiretapping Act, and invaded his privacy. (Doc. 17). On January 24, 2014, Defendants filed the instant motion to dismiss the amended complaint. For the following reasons, we will grant the motion.
On September 1, 2011, Plaintiff was severely injured during an attempted arrest. (Doc. 17, ¶¶ 10-11). While seeking treatment for his injuries, Plaintiff was diagnosed with Attention Deficit and Hyperactivity Disorder ("ADHD"). ( Id. ¶ 12). Although Plaintiff returned to work after the accident, he experienced persistent pain. ( Id. ¶ 13). He reported this and his ADHD diagnosis to his superiors, Defendants Margeson and Walters. ( Id. ¶¶ 15, 17). Defendant Walters routinely harassed Plaintiff about having ADHD. (Doc. 17, ¶¶ 22, 25). Although Plaintiff requested leniency at work, he was given no special accommodations, and received demerits for submitting reports that omitted minor details. ( Id. ¶ 45). In April 2012, Plaintiff was again injured while attempting to apprehend a suspect and suffered a possible hernia. ( Id. ¶¶ 28-31, 40). He returned to work, but experienced extreme pain throughout May 2012. ( Id. ¶¶ 41-42). Plaintiff suffered a third injury in "April or May" of 2012 while lifting boxes at a traffic accident. (Doc. 17, ¶ 49). Following this injury, Plaintiff requested a meeting with the police department lieutenants, Chief Margeson, and Sergeant Latshaw. ( Id. ¶¶ 49-51). Plaintiff related that he continued to experience severe pain, as well as difficulties due to ADHD. ( Id. ¶¶ 52-54).
On September 16, 2012, Plaintiff received a phone call from Defendant Walters, who told Plaintiff that he had been demoted. (Doc. 17, ¶¶ 61-63). During the course of this conversation, Plaintiff made unflattering comments about another police officer. ( Id. ¶ 67). The following day, that officer confronted Plaintiff regarding the statements. The officer told Plaintiff that Defendant Walters had recorded the call and subsequently played the recording for several officers. ( Id. ¶¶ 69-71). Plaintiff reported this incident to the Human Resources Director for the Borough of Carlisle, the Carlisle Borough Manager, several Borough Council members, Officer Fones, and Defendant Margeson. ( Id. ¶¶ 76-78, 92). Plaintiff also notified the Cumberland County District Attorney's Office ("DA's Office") about the incident. ( Id. ¶ 92). Since contacting the DA, Plaintiff has suffered "increasing retaliation in the form of ostracism and criticism in the workplace...." ( Id. ¶ 93).
A. Standard of Review
Rule 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim, " FED. R. CIV. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id . at 570. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly , 550 U.S. at 556). "[L]abels and conclusions" are not enough, and a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Twombly , 550 U.S. at 555 (quoted case omitted).
In resolving a motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra , 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id . at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.'" Id . at 211 (quoted case omitted).
B. First Amendment Claims (Counts I and II)
Plaintiff claims that Defendants deprived him of his First Amendment right to free speech in two ways: first, Defendants harassed Plaintiff when he spoke about his medical issues and his need for accommodations at work; and second, Defendants retaliated against him after he reported their actions to the Carlisle Borough Council and the DA's Office. (Doc. 17, ¶ 109, 123). "When a public employee sues a government employer under the First Amendment's Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern." Borough of Duryea v. Guarnieri , 131 S.Ct. 2488, 2493 (2011). If the speech in question concerns a personal matter, and does not relate to "any matter of political, social, or other concern to the community, " then "government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Connick v. Myers , 461 U.S. 138, 146 (1983). Speech that relates to a private employment issue is not a matter of public concern, and is not protected. See, e.g., Emigh v. Steffee , 442 F.Appx. 660, 666 (3d Cir. 2011) (state police officer's complaint against another officer was not protected speech); Campbell v. W. Pittston Borough, 498 F.Appx. 186 (3d Cir. 2012) (police officer's age discrimination claim was a matter of personal interest).
Here, Plaintiff's medical problems and requests for accommodations are not matters of public concern, and therefore, this speech is not protected. Although this court does not condone bullying in the workplace, we have explained before that a police officer's complaint that another officer is "picking" on him or her is not a matter of public concern. Conard v. Pa. State Police, No. 06-1450, 2009 WL 473859, at *4 (M.D. Pa. Feb. 25, 2009). "[A]bsent the most unusual circumstances, a federal court is not the appropriate forum in which to review... personnel decision[s] taken by a public agency...." Id . at *3 (quoting Connick , 461 U.S. at 147).
Similarly, Plaintiff's complaints to the Carlisle Borough Council and the DA's Office are not protected by the First Amendment. Plaintiff alleges that he suffered retaliation after he reported the wiretapping incident to the DA. (Doc. 17, ¶¶ 91-92). Plaintiff argues that this retaliation violated his constitutional rights because this speech concerned a matter of public interest. Specifically, Plaintiff states that "[a] community has an interest in knowing when high-ranking members of its police force... commit illegal actions which are not being remediated by the Chief of Police or the Borough itself." (Doc. 29 at 12). In order to be a matter of public concern, the speech at issue must have some impact on the broader community. See, e.g., Zamboni v. Stamler , 847 F.2d 73, 77 (3d Cir. 1988) (civil service employee's criticism of county prosecutor's plans for reorganization is protected); Monsanto v. Quinn , 674 F.2d 990, 996-97 (3d Cir. 1992) (tax department employee's letters to tax commissioner expressing dissatisfaction with management of tax division is protected); Trotman v. Bd. of Trustees of Lincoln Univ. , 635 F.2d 216, 225 (3d Cir. 1980) (professor's criticism of university president's efforts to increase faculty/student ratio is protected). We agree with Defendants that Plaintiff's decision to involve the DA does not turn this otherwise personal issue into a matter of public concern. No criminal charges have been filed against Defendant Walters, so Plaintiff's ...