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Mazur v. City of Pittsburgh

United States District Court, W.D. Pennsylvania

July 12, 2019

MARGARET MAZUR, Plaintiff,
v.
CITY OF PITTSBURGH, JASON LANDO, and THOMAS NEE, Defendants.

          MEMORANDUM OPINION

          Joy Flowers Conti Senior United States District Court Judge

         I. Introduction

         Pro se plaintiff Margaret Mazur (“Mazur”) initiated this case in the Allegheny County Court of Common Pleas by filing a complaint against the City of Pittsburgh and two officials of the City of Pittsburgh's police department-Jason Lando (“Lando”) and Thomas Nee (“Nee”)- (collectively “defendants”). Defendants removed the case to this court under 28 U.S.C. §1441(a). (ECF No. 1.) Defendants filed a motion for leave to file a motion to dismiss and a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). (ECF Nos. 3 and 10.) The court, however, denied those motions as moot because Mazur's claims in the complaint did not arise under federal law, and, therefore, the court was without subject-matter jurisdiction over the case. (ECF No. 12.) The court granted Mazur leave to amend the complaint to state a cognizable claim under federal law. (Id. at 4.)

         On January 21, 2019, Mazur filed an amended complaint. (ECF No. 15.) Mazur attempts to set forth claims under 42 U.S.C. § 1983 for violations of her rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, for violations of her rights guaranteed by Section 1, Article 1 of the Pennsylvania Constitution, and for defamation under state law. (Id.) On February 24, 2019, defendants filed a motion to dismiss the amended complaint and a brief in support of the motion. (ECF No. 20 and 21.) On March 4, 2019, Mazur filed a response in opposition. (ECF No. 22.)

         For the reasons set forth in this opinion, this court is without subject-matter jurisdiction over this case. Mazur in the amended complaint did not set forth factual allegations sufficient to state a plausible claim for relief under federal law. Because amendment would be futile the case will be forthwith remanded to the Allegheny County Court of Common Pleas and the motion to dismiss (ECF No. 20) denied as moot.

         II. Factual Allegations set forth in the Amended Complaint Accepted as True for the Purpose of Deciding the Motion to Dismiss

         Mazur worked as a state employee and accounting assistant for the Southwestern Veterans Center (“SWVC”) for five years. (ECF No. 15 ¶¶ 2-3.) She had a “good reputation” as an accounting assistant. (Id. ¶ 3.) Lando is the Commander of Zone 5 of the Pittsburgh Police Department and oversees the work of Nee, who is employed as a detective in Zone 5. (Id. ¶ 5.)

         On May 16, 2018, $500.00 went missing from SWVC funds. (ECF No. 15 ¶ 12.) Two days later, on May 18, 2016, Barry Lowen (“Lowen”) and Darren Lindsay (“Lindsay”), who are employed by the SWVC, initiated a police report of theft with respect to the missing $500.00. (ECF No. 15 ¶ 12.) Nee, who authored the police report, received information from Lowen and Lindsay. (Id.) Mazur was listed as “suspect #1” on the report. (Id.) Sharon Warden (“Warden”) was listed as “No. 2 suspect” on the police report. (Id. ¶ 14.) Because Lindsay and Lowen did not initiate the report until two days after the $500.00 went missing, Nee did not conduct an “immediate search [of the site of the alleged missing money] and interview of the suspects listed in the report.” (Id. ¶ 12.)

         According to Mazur, Nee provided “known false statements on or about May 25, 2016 to [the SWVC]…officials that he had enough evidence in his investigation…initiated on May 18, 2016….to arrest…Mazur for the crime of theft….and take her out of her workplace in handcuffs.” (Id. ¶ 10.) Nee's police report reveals that he did not have any evidence upon which to arrest Mazur or refer the case for prosecution. (Id.) Mazur alleges that as a result of Nee's statements: (1) her reputation was destroyed; (2) she received a permanent letter of suspension for theft; (3) she lost her ten-year employment with the state (including benefits); and (4)her employment prospects are inhibited. (Id.)

         On May 26, 2016, a “Pre-Disciplinary Conference” (“PDC”) took place between Mazur and Kim Kreiser (“Kreiser”), the human resource analyst for the Department of Military and Veterans Affairs (“DMVA”). (ECF No. 15 ¶ 15.) Kreiser told Mazur that Nee reported to the SWVC that he “had enough evidence to charge…Mazur with theft.” (Id.) Mazur asked the SWVC for the “evidence” referred to and relied upon by Nee. (Id.) The SWVC, however, did not provide to Mazur any “evidence” to support Nee's statements. (Id.) After the PDC, Jamie Cuthbert, a human resource analyst for the SWVC, “escorted…Mazur to her office and directed her to collect her belongings from her desk and office.” (Id. ¶ 25.) Mazur was escorted from the building and instructed that she was not permitted on SWVC grounds. (Id.)

         On the same day, the SWVC “charged” Mazur with “theft/stealing” and she was “immediately suspended without pay/terminated over the alleged missing $500.00…based upon…Nee's false statements to SWVC officials on or about May 25, 2016.” (ECF No. 15 ¶ 13.) “SWVC took…Nee at his word that he had sufficient evidence to arrest…Mazur for theft…and take her out of her workplace in handcuffs.” (Id.) Nee, however, did not interview or arrest Mazur or Warden. (Id.) Nee's police report, which was amended in February 2018, “gave vague generalities in the narrative;” it did not provide “specific dates and times and did not record the details provided by SWVC officials as required by…[police] procedures.” (ECF No. 15 ¶ 18.) In other words, Nee's police report did not contain “the required elements of what's supposed to be contained in a police report[, ]” i.e., “Who, What, When, Where, Why and How.” (ECF No. 15 ¶¶ 18, 32.) According to Lindsay, he spoke with Nee on two or three occasions, but Nee omitted that fact from his police report. (Id. ¶ 24.)

         After Mazur learned that Nee's police report was amended, she contacted Lando and informed him that Nee had not interviewed her about the incident and requested that Nee interview her and prepare a supplemental report. (Id. ¶ 23.) Lando, however, informed Mazur that “it was too late to do that.” (Id.) Mazur then went to the Zone 5 police station to request that she be arrested “so she could see and rebut the purported evidence that she could be arrested for the crime of theft.” (Id. ¶ 26.) The police, including Nee and Lando, refused to arrest her. (Id.) According to Mazur, her due process rights were violated when she was denied the ability to “see and rebut” the evidence that Nee reported would support her arrest.” (Id. ¶ 27.)

         When the SWVC was informed that the Bureau of Pittsburgh Police had sufficient information to arrest Mazur and charge her with theft, the SWVC decided to internally handle the matter. (ECF No. 15 ¶ 21.) According to Mazur, the SWVC did not have the authority to handle the matter internally; rather, its choices were to not “charge…Mazur with theft and drop the charges or…[a]sk…Nee to proceed with an arrest of…Mazur.” (Id. ¶ 22.)

         “On or about June 2, 2016, in a meeting with SWVC and DMVA officials, the Commandant, Richard Adams, further decided and awarded additional discipline of a time served suspension and a final warning letter to…Mazur wherein she could be discharged/terminated again based on basically any reason.” (ECF No. 15 ¶ 31.)

         On or about July 17, 2016, Elizabeth Anderson, the “UC representative, ” stated that Mazur's dishonest act involved “theft/stealing from the Accounting department[, ]” and, thus, Mazur's “UC Claim” was denied. (ECF No. 15 ¶ 33.) According to Mazur, but for Nee's allegedly defamatory statement about Mazur, she would have received her “UC benefits.” (Id.) According to Mazur, Nee's statement that he had sufficient evidence to charge Mazur with theft caused Cuthbert, Kreiser, and Jennifer McClain-Miller, a human resource analyst at the DMVA, “to show contempt” to Mazur and harass her on the job. (ECF No. 15 ¶ 40.) Officials from the SWVC and the DMVA never reported to Nee that they saw Mazur steal the $500.00. (ECF No. 15 ¶ 45.)

         Lando as the Commander of Zone 5, “is responsible for ensuring proper Police Conduct is followed by Police Officers and Detective under his command.” (ECF No. 15 ¶ 47.) According to Mazur:

Nee's superiors signed off on his inaccurate and unprofessional investigative work that did not meet any of the requirements of the police rules, policies and procedures. These actions by Detective Thomas Nee and Commander Lando's failure to act and correct the severe harm done to Margaret Mazur, once notified of the violations, shows deliberate indifference to the severe harm done to Margaret Mazur.

(ECF No. 15 ¶ 49.) Mazur alleges her due process rights were violated:

Nee's failure to obtain and record complete and accurate information in Police Report #91034 has violated Margaret Mazur's U.S. Constitutional Right to protect her reputation, career and her livelihood and denied her of the opportunity to rebut Detective Thomas Nee's alleged ...

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