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Ford v. City of Harrisburg

United States District Court, M.D. Pennsylvania

September 16, 2019

ROBERT D. FORD, Plaintiff
v.
CITY OF HARRISBURG, et al., Defendants

          Judge Kane

          Magistrate Judge Carlson

          MEMORANDUM

         Before the Court in the above-captioned action is a Report and Recommendation of Magistrate Judge Carlson (Doc. No. 41), recommending that the Court grant in part and deny in part a motion to dismiss Plaintiff Robert D. Ford (“Plaintiff”)'s amended complaint (Doc. No. 28), filed by Defendants City of Harrisburg, Officer John O'Conner (“Defendant”), and Captain Derik Moody (“Captain Moody”) (collectively, “Defendants”). Upon consideration of the briefing filed in connection with the motion to dismiss, Magistrate Judge Carlson's Report and Recommendation, Defendants' objections to the Report and Recommendation, the briefing related to those objections, and the applicable law, for the reasons provided herein, the Court will adopt the Report and Recommendation in part and will grant Defendants' motion to dismiss Plaintiff's federal claims.

         I. BACKGROUND

         On May 23, 2017, Plaintiff filed a pro se complaint against Defendants alleging constitutional violations and state law claims arising out of an incident that occurred during Memorial Day festivities in Harrisburg in May of 2015, during which Plaintiff, a 75 year old veteran of the Marine Corps who was wearing his uniform while attending the festivities, alleges that he was harassed, berated, and accused of “stolen valor” by Defendant O'Conner, an officer with the Harrisburg Police Department. (Doc. No. 1.) Defendants filed a motion to dismiss Plaintiff's complaint (Doc. No. 13), which Magistrate Judge Carlson recommended that this Court grant by way of a Report and Recommendation dated November 22, 2017 (Doc. No. 21). In that Report and Recommendation, Magistrate Judge Carlson recommended dismissal of Plaintiff's complaint without prejudice to his ability to file an amended complaint that corrected the pleading deficiencies identified in Magistrate Judge Carlson's Report and Recommendation. (Id.) Specifically, in recommending dismissal of Plaintiff's First Amendment retaliation claim, Magistrate Judge Carlson found that the actions attributed to Officer O'Conner fell within Officer O'Conner's own First Amendment speech rights, and further, relied on precedent holding that a government official's investigation, or threat to initiate an investigation, is not a sufficiently adverse action for the purpose of a First Amendment retaliation claim unless the investigation results in some formal action taken against the Plaintiff. (Doc. No. 21 at 17-18.) The Court adopted the Report and Recommendation by Order dated December 12, 2017. (Doc. No. 22.)

         Subsequently, on March 29, 2018, Plaintiff filed a counseled amended complaint against Defendants (Doc. No. 26), asserting six claims for relief, including: two claims against Defendant O'Conner pursuant to 42 U.S.C. § 1983 for First Amendment retaliation and defamation of character (counts 1 and 2); claims against Defendants Moody and City of Harrisburg pursuant to 42 U.S.C. § 1983 for failure to train (counts 4 and 5); and state law claims against Defendant O'Conner for intentional infliction of emotional distress and assault (counts 3 and 7).[1] Defendants then filed the pending motion to dismiss Plaintiff's amended complaint. (Doc. No. 28.) In their motion to dismiss, Defendants argue that: (1) Plaintiff's amended complaint does not adequately plead First Amendment retaliation and defamation of character claims against Defendant O'Conner; (2) Defendant O'Conner is entitled to qualified immunity on any such claims; (3) Plaintiff's amended complaint fails to adequately plead failure to train claims against Defendants Moody and City of Harrisburg; and (4) Plaintiff's state law claims against Defendant O'Conner also fail to set forth plausible claims for relief. (Doc. No. 32.)

         II. LEGAL STANDARD

         The Magistrate Act, 28 U.S.C. § 636 et seq., and Rule 72(b) of the Federal Rules of Civil Procedure provide that any party may file written objections to a magistrate's proposed findings and recommendations. The written objections must “specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections.” See M.D. Pa. L.R. 72.3. When a party objects to a report and recommendation of a magistrate judge, this Court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b); M.D. Pa. L.R. 72.3. The Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” See id.

         III. DISCUSSION

         In his Report and Recommendation on the pending motion to dismiss, Magistrate Judge Carlson recommends: (1) granting Defendants' motion to dismiss as to Plaintiff's failure to train claims asserted against Defendants Moody and City of Harrisburg (counts 4 and 5); (2) granting Defendants' motion to dismiss as to Plaintiff's state law claims (counts 3 and 7), with the exception of Plaintiff's state law claim against Defendant John Doe (count 6); and (3) denying Defendants' motion to dismiss as to Plaintiff's Section 1983 claims against Defendant O'Conner (counts 1 and 2). (Doc. No. 41.) The sole objection to Magistrate Judge Carlson's Report and Recommendation was raised by Defendants and challenges his recommendation that Defendants' motion to dismiss Plaintiff's Section 1983 claims against Defendant O'Conner be denied.[2] Accordingly, the Court limits its discussion to those claims.[3]

         A. Plaintiff's Section 1983 Claims

         In recommending denial of Defendants' motion to dismiss Plaintiff's Section 1983 First Amendment retaliation and defamation of character claims, Magistrate Judge Carlson finds that Plaintiff's amended complaint adequately alleges the required elements of First Amendment retaliation and defamation of character claims. (Doc. No. 41 at 17-22.) As to Plaintiff's First Amendment retaliation claim, the Report and Recommendation finds that Plaintiff “easily satisfies the first and third elements of a retaliation cause of action, ” and, therefore, focuses on the second element - whether Plaintiff was “retaliated against by someone acting under color of state law in a way that was ‘sufficient to deter a person of ordinary firmness from exercising his constitutional rights.'” (Id. at 17) (quoting Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006)).

         In connection with this inquiry, Magistrate Judge Carlson notes that assessing:

whether a plaintiff's First Amendment rights are adversely affected by retaliatory conduct “is a fact intensive inquiry that focuses on the status of the speaker, the status of the retaliator, the relationship between [the two parties], and the nature of the retaliatory acts.” Bartley v. Taylor, 25 F.Supp.3d 521, 532 (M.D. Pa. 2014) (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)). However, courts are skeptical of finding retaliation where a public official's act is itself a form of speech, because the ...

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