Bird v. Borough of Moosic

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HEATHER BIRD, : CIVIL NO. 3:18-CV-2289

:

Plaintiff, :

:

v. : (SAPORITO, M.J.)

:

BOROUGH OF MOOSIC, et al., :

:

Defendants. :

MEMORANDUM

This is a civil rights action, initiated upon the filing of the complaint

in this matter on November 29, 2018. (Doc. 1) An amended complaint

was filed on June 7, 2019. (Doc. 25) In her amended complaint, the

plaintiff, Heather Bird, alleges violations of her rights under the First

Amendment of the United States Constitution through 42 U.S.C. § 1983.

The plaintiff also asserts a state law claim of quo warranto. The

defendants, Borough of Moosic and Richard Janesko, the Borough’s chief

of police, have moved to dismiss the amended complaint under Rule

12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 28.) This motion

has been fully briefed and is ripe for disposition. (Doc. 31; Doc. 36; Doc.

41.) For the reasons set forth herein, we will grant the motion in part

and deny it in part.

I. Statement of Facts

In her amended complaint, the plaintiff alleges that in 2004, she

was hired as a part-time police officer for the defendant, Borough of

Moosic, where she has been working in that capacity in excess of fourteen

years. (Doc. 25 ¶ 9.) She alleges that on June 13, 2018, the Borough hired

three full-time male police officers. She asserts that the hires were in

violation of the civil service commission’s rules and regulations because

the Borough did not provide any notice of the open positions, it did not

use the civil service commission in hiring the three full-time male

officers, and no civil service commission test was given for the full-time

positions that were filled. (Id. ¶¶ 10-13.)

The plaintiff alleges that on June 14, 2018, she “spoke out about the

illegal hiring and preferential treatment for males to the Police Chief.”

(Id. ¶ 14.) She maintains that she was retaliated against for speaking

out on the alleged illegal misconduct and as a result her hours have been

reduced, she has not been assigned special duty shifts while other newly

hired male part-time police officers have been given those assignments,

she sustained a loss in pay, and she has been subjected to her male co-

workers yelling at her and refusing to provide back-up on police calls.

(Id. ¶¶ 15-16.)

The plaintiff further alleges that the filing of her complaint was

published in The Times-Tribune on November 29, 2018. After the filing

of her complaint was published in the newspaper, she asserts that she

has been retaliated against for filing this action by not being scheduled

for shifts and “specifically not getting the higher paying extra duty

shifts.” (Id. ¶¶ 26-27.) The alleged retaliation also included Chief

Janesko’s denial of the plaintiff’s participation in the Lackawanna

County District Attorney’s Office’s DUI Enforcement as well as her

request to attend a Crisis Training Program, while allowing her male co-

workers to attend the training. (Id. ¶¶ 26-32.)

Finally, the plaintiff alleges that despite the Borough maintaining

civil service rules for the selection of full-time police officers, it failed to

follow those rules when it hired the three male full-time police officers on

June 13, 2018. (Id. ¶¶ 34-35.) The plaintiff maintains that the hiring of

the three male police officers was illegal and they should be removed from

their positions in that she was denied the opportunity to be selected as a

full-time police officer in violation of the law. (Id. ¶¶ 36-39.)

Counts I and II of the amended complaint assert First Amendment

claims for retaliation for speaking out as a citizen and for filing this

action respectively. Count III alleges a state law claim of quo warranto

seeking the removal of the three male police officers. On July 11, 2019,

the defendants filed their motion to dismiss claiming that the amended

complaint fails to state a claim upon which relief can be granted. (Doc.

28.)

II. Legal Standards

Rule 12 (b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which

relief is granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a motion

to dismiss may be granted only if, accepting all well-pleaded allegations

in the complaint as true and viewing them in the light most favorable to

the plaintiff, a court finds the plaintiff’s claims lack facial plausibility.”

Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although

the Court must accept the fact allegations in the complaint as true, it is

not compelled to accept “unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation.” Morrow

v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v.

McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Under Rule12(b)(6), the

defendant has the burden of showing that no claim has been stated. Kehr

Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991);

Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir. 1980); Holocheck v.

Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 495 (M.D. Pa.

2005). In deciding the motion, the court may consider the facts alleged

on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial

notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007).

III. Discussion

The defendants have moved for dismissal of the plaintiff’s claims on

a variety of grounds including whether the plaintiff has failed to

articulate sufficient facts to support §1983 First Amendment retaliation

claims; whether the plaintiff’s Monell claim against the Borough should

be dismissed; and whether the plaintiff’s count III quo warranto claim

should be dismissed for failure to state a claim.

A. 42 U.S.C. § 1983 Claims

The plaintiff has brought this federal civil rights action under 42

U.S.C. § 1983. Section 1983 provides in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress . . . .

42 U.S.C. § 1983. Section 1983 does not create substantive rights, but

instead provides remedies for rights established elsewhere. City of

Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim,

the plaintiff must establish that the defendants, acting under color of

state law, deprived the plaintiff of a right secured by the United States

Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995). To avoid dismissal for failure to state a claim, a civil rights

complaint must state the conduct, time, place, and persons responsible

for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005).

1. First Amendment—Retaliation for Speaking-Out

To establish a First Amendment retaliation claim, a public

employee must show that his or her speech is protected by the First

Amendment and that the speech was a substantial or motivating factor

in what is alleged to be the employer’s retaliatory action. Flora v. Cty of

Luzerne, 776 F.3d 169, 174 (3d Cir. 2015); see also Gorum v. Sessoms, 561

F.3d 179, 184 (3d Cir. 2009). If the employee establishes both of those

predicates, the burden shifts to the employer to show that it would have

taken the same action even if the speech had not occurred. Id. A public

employee’s statement is protected by the First Amendment when: “(1) in

making it, the employee spoke as a citizen, (2) the statement involved a

matter of public concern, and (3) the government employer did not have

‘an adequate justification for treating the employee differently from any

other member of the general public’ as a result of the statement he made.”

Flora, 776 F.3d at 175 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418

(2006)).

The parties dispute whether Bird was speaking as a citizen or as

an employee of the Borough police department when she spoke out to

Chief Janesko. In their motion, the defendants contend that the

amended complaint lacks factual specificity and the plaintiff must

“present facts showing that she was speaking in her capacity as a citizen.”

(Doc. 31, at 9.) Bird’s brief in opposition does not specifically address the

issue whether she spoke as a citizen. (Doc. 36.)

In analyzing the first prong of the test—whether she spoke as a

citizen—to determine whether Bird’s statement is protected by the First

Amendment, the key question is “whether the speech at issue is itself

ordinarily within the scope of an employee’s duties.” Lane v. Franks, 573

U.S. 228, 240 (2014). The Supreme Court’s opinion in Garcetti sets forth

the controlling test for determining whether a public employee’s speech

was made incident to his employment duties: “when public employees

make statements pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes, and the Constitution

does not insulate their communications from employer discipline.” 547

U.S. at 421. The “controlling factor” is whether the statements were

“made pursuant to [the speaking employee’s] duties,” that is, whether

such utterances were among the things that the employee “was employed

to do.” Id. at 421. The Garcetti Court did not advance a framework for

defining when an employee speaks pursuant to his official duties. Id. at

424. It did, however, condemn reliance on “excessively broad job

descriptions.” Id. at 424–25. Further, it cautioned against a focus on

formal job descriptions because “[t]he proper inquiry is a practical one.”

Id. A review of the amended complaint reflects Bird alleged that (1) she

was acting and speaking as a citizen when she reported the official

misconduct of Borough officials (i.e. the illegal hiring of full-time police

officers); (2) she has no official duty to report official misconduct; (3) her

duties as a borough police officer are to enforce the vehicle and criminal

codes of the Commonwealth of Pennsylvania; and (4) her free speech is a

matter of public concern. (Doc. 25 ¶¶ 17-21.) Accepting the facts alleged

as true, as we must, the amended complaint contains sufficient factual

allegations to plausibly establish that Bird’s statements to Chief Janesko

were not made pursuant to her ordinary job responsibilities.

Moving on to the second prong—whether the statements were

matters of public concern—we are satisfied that Bird’s statements, as

alleged, constitute matters of public concern. The Third Circuit has

repeatedly held that “[s]peech involving government impropriety

occupies the highest rung of First Amendment protection.” Bradley v. W.

Chester Univ. of Pa. State Sys. of Higher Educ., 880 F.3d 643, 653 (3d Cir.

2018) (citing McGreevy v. Stroup, 413 F.3d 359, 365 (3d Cir. 2005)).

“[A]llegations of corrupt practices by government officials are of the

utmost public concern.” O’Donnell v. Yanchulis, 875 F.2d 1059, 1061 (3d

Cir. 1989); see also Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979

(3d Cir. 2014) (disclosing details of superintendent misconduct is entitled

to First Amendment protection). The amended complaint contains

allegations that the Borough engaged in the illegal hiring of police

officers in violation of the civil service commission. (Doc. 25 ¶¶ 10-13.)

On the record before us, and accepting the allegations as true, we are

satisfied that the statements made by Bird, as alleged in the amended

complaint, are sufficient to satisfy this prong.

In determining whether the Borough had an adequate justification

for treating Bird differently from any other member of the general public

as a result of the statements she made—the third prong—we must await

the development of a factual record. Therefore, we are satisfied that

count I of the amended complaint plausibly sets forth a cause of action

for First Amendment retaliation.

2. First Amendment—Initiation of the Instant Lawsuit

Bird alleged that she filed this lawsuit on November 29, 2018. (Doc.

1) As a threshold matter, we must determine whether this activity

properly qualifies as speech, to which our review in this case is limited.

Generally, the act of suing a public employer may fall under either the

Speech Clause or Petition Clause of the First Amendment, as the two

clauses embody “cognate rights.” Borough of Duryea v. Guarnieri, 564

U.S. 379, 388 (2011) (quoting Thomas v. Collins, 323 U.S. 516, 530,

(1945)). The Supreme Court has indicated, however, that filing a lawsuit

qualifies as speech if a plaintiff “allege[s] that his employer retaliated

against him for the speech contained within his ….. lawsuit.” Id. at 387.

Here, Bird has alleged that the defendants retaliated against her for

filing this action. (Doc. 25 ¶27.) She alleged that the retaliation consisted

of (1) not being scheduled for shifts; (2) not getting the higher paying

extra duty shifts; (3) suffering a loss of pay by not being scheduled for the

shifts; (4) denying her participation in DUI enforcement and crisis

training. (Id. ¶¶27-32.) In any event, the defendants do not appear to

contest that Bird’s filing this lawsuit constitutes speech activity.

Although the defendants do not contest that the filing of a lawsuit

constitutes protected speech, we nonetheless undertake the full analysis.

As to the first step of the analysis, we can reasonably infer that Bird’s

filing this action was not within her ordinary job responsibilities. As to

the second step of the analysis, we must determine whether filing the

instant case involved a matter of public concern. Here again, our

precedent supports Bird’s position. Falco v. Zimmer, 767 Fed. App’x 288,

307 (3d Cir. 2019) (police chief’s filing of lawsuit was First Amendment

protected speech); see also Green v. Philadelphia Hous. Auth., 105 F.3d

882, 888 (3d Cir. 1997) (“[A]ll court appearances are matters of public

concern. That is so because all court appearances implicate the public’s

interest in the integrity of the truth seeking process and the effective

administration of justice.”). The final step calls for balancing the

defendants’ interest in ensuring the efficiency of police services against

Bird’s interest in accessing the courts and the community’s value in

allowing all aggrieved parties to seek legal redress. The defendants have

not provided any reason for treating Bird differently than any ordinary

member of the public, accepting Bird’s allegations as true, we must

determine at this early stage of the litigation, Bird’s interests are

stronger. Therefore, Bird’s initiation of this lawsuit constitutes speech

protected under the First Amendment.

3. Municipal Liability Claim

Bird seeks to hold the Borough liable for the alleged

unconstitutional conduct of its employee, Chief Janesko. The defendant

Borough contends that it cannot be liable under Monell v. Department of

Social Services, 436 U.S. 658 (1978).

“On its face, § 1983 makes liable ‘every person’ who deprives

another of civil rights under color of state law.” Burns v. Reid, 500 U.S.

478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In

Monell, 436 U.S. 658 (1978), the Supreme Court of the United States

established that municipalities and other local governmental units are

included among those “persons” subject to liability under § 1983. Id. 436

U.S. at 690. A borough is such a municipality subject to liability as a

“person” under § 1983. McGreevy v. Stroup, 413 F.3d 359, 367-69 (3d Cir.

2005).

But “[u]nder Monell, a municipality cannot be subjected to liability

solely because injuries were inflicted by its agents or employees.” Jiminez

v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007).

Rather, a municipality can be liable under § 1983 only if the conduct

alleged to be unconstitutional either “implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers” or is “visited pursuant to

governmental ‘custom’ even though such a custom has not received

formal approval through the body’s official decision-making channels.”

Monell, 436 U.S. at 690–91. “[I]t is when execution of a government’s

policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible under § 1983.”

Jiminez, 503 F.3d at 249. “A plaintiff must identify the challenged policy,

attribute it to the [municipality] itself, and show a causal link between

execution of the policy and the injury suffered.” Losch v. Borough of

Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).

The amended complaint does not allege that Janesko’s conduct was

“pursuant to a formal government policy or a standard operating

procedure long accepted within the government entity,” nor that “an

official with authority has ratified the unconstitutional actions of a

subordinate, rendering such behavior official for liability purposes.”1

McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005). But a municipality

may also be held liable for an employee who “has policy making authority

rendering his . . . behavior an act of official government policy.” Id.

But “not every decision by municipal officers automatically subjects

the municipality to § 1983 liability. Municipal liability attaches only

where the decisionmaker possesses final authority to establish municipal

policy with respect to the action ordered.” Pembaur v. City of Cincinnati,

475 U.S. 469, 481 (1986) (emphasis added). Thus, to adequately plead a

Monell claim based on the conduct of a municipal employee, such as

Janesko, the complaint must allege that he has final policy making

authority with respect to the acts for which the plaintiff seeks to impose

municipal liability. See Santiago v. Warminster Twp., 629 F.3d 121, 135

& n.11 (3d Cir. 2010). The plaintiff’s amended complaint does not so

allege. Moreover, whether a borough police chief is a final policymaker is

a legal rather than a factual question, id. at 135 n.11, and as a matter of

1 The amended complaint does allege that the Borough “acquiesced in

all actions taken by its public officials and personnel” (Doc. 25 ¶ 6), but

“[s]imply going along with discretionary decisions made by one’s

subordinates . . . is not a delegation to them of the authority to make

policy.” Kelly v. Borough of Carlisle, 622 F.3d 248, 264 (3d Cir. 2010).

Pennsylvania state law, a borough police chief is not a final policymaker.

Kocher v. Larksville Borough, 926 F. Supp. 2d 579, 606 & n.8 (M.D. Pa.

2013); see also 8 Pa. Cons. Stat. Ann. § 1123.1 (providing that a borough

“mayor shall have full charge and control of the chief of police and the

police force,” and “shall direct the time during which, the place where and

the manner in which the chief of police and the police force perform the

duties of their rank”). See generally Hoffman v. Borough of Macungie, 63

A.3d 461, 469–70 (Pa. Commw. Ct. 2013).

Alternatively, “[a] municipality may be held liable under § 1983 for

failure to train, monitor, or supervise, [but] only where the plaintiff can

‘identify a failure to provide specific training that has a causal nexus with

their injuries and must demonstrate that the absence of that specific

training can reasonably be said to reflect a deliberate indifference to

whether the alleged constitutional deprivations occurred.’” Watson v.

Philadelphia Hous. Auth., 629 F. Supp. 2d 481, 487 (E.D. Pa.

2009)(quoting Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005)); see

also Nawuoh v. Venice Ashby Cmty. Ctr., 802 F. Supp. 2d 633, 645 (E.D.

Pa. 2011) (“While municipal liability under § 1983 originally hinged on

affirmative policies, or customs, modern jurisprudence has extended it to

a [municipality]’s failure to train, supervise and discipline its officers.”).

A three-part test applies to determine if a

municipality’s failure to train amounts to “deliberate

indifference”: “(1) municipal policymakers know that

employees will confront a particular situation; (2) the

situation involves a difficult choice or a history of

employees mishandling; and (3) the wrong choice by an

employee will frequently cause deprivation of

constitutional rights.”

Kocher, 926 F. Supp. 2d at 605 (quoting Carter v. City of Philadelphia,

181 F.3d 339, 357 (3d Cir. 1999)).

Here, Bird has failed to allege that the Borough’s failure to train

amounted to deliberate indifference toward her constitutional rights. She

has not alleged that the Borough’s policymakers—the Borough’s mayor

and council, see 8 Pa. Cons. Stat. Ann. §§ 1121, 1123.1—knew that its

employees would confront retaliation for raising concerns about

compliance with civil service hiring rules or bringing employment-related

litigation. Nor has she alleged any prior retaliatory conduct at all, much

less a history of retaliatory conduct by Borough officials or employees.

Thus, any failure by the Borough to train its employees did not amount

to deliberate indifference to Bird’s constitutional rights.

Therefore, we will dismiss the plaintiff’s Monell claims against the

Borough of Moosic.

B. Quo Warranto

In count III of the amended complaint, Bird makes a state law claim

of quo warranto seeking the removal of the three male police officers

because they were hired in violation of the Borough’s civil service rules.

The general rule is well settled that a quo warranto action constitutes

the proper method to challenge title or right to public office. In re One

Hundred or More Qualified Electors, 683 A.2d 283, 286 (Pa. 1996);

Andrezjwski v. Borough of Millvale, 673 A.2d 879, 881 (Pa. 1996). The

rationale for the exclusive nature of the quo warranto remedy is that:

[Q]uo warranto is the Gibraltar of stability in

government tenure. Once a person is duly elected

or duly appointed to public office, the continuity of

his services may not be interrupted and the

uniform working of the governmental machinery

disorganized or disturbed by any proceeding less

than a formal challenge to the office by that action

which is now venerable with age, reinforced by

countless precedent, and proved to be protective of

all parties involved in a given controversy, namely

quo warranto.

In re Bd. of Sch. Dirs., 180 A.2d 16, 17 (Pa. 1962). Generally, only the

attorney general or local district attorney may institute a quo warranto

action. Qualified Electors, 683 A.2d at 286. “A party will be permitted

to bring an alternative action to the remedy of quo warranto where the

Attorney General and the local district attorney refuse to bring such an

action or if it would be a futile exercise to seek the approval of these

officials.” Id. at 286–87. But “[a] private party with a special interest in

the matter may institute a quo warranto action without first notifying

the Attorney General or the local district attorney.” Reed v. City of

Harrisburg, 995 A.2d 1137, 1140 (Pa. 2010).

The defendants contend that Bird lacks standing to bring a quo

warranto action because she filed this action without first asking both

the Attorney General and the local district attorney to bring the action,

and because she has not alleged the requisite “special interest”

permitting her to proceed with a quo warranto action. It is undisputed

that the amended complaint does not allege that Bird requested the

Attorney General or the local district attorney to bring a quo warranto

action. “A private person will have standing to bring a quo warranto

action only if that person has a special right or interest in the matter, as

distinguished from the right or interest of the public generally, or if the

private person has been specially damaged.” Qualified Electors, 683 A.2d

at 286. An individual who will be placed in the challenged public office if

he succeeds with the quo warranto action has a special interest in the

matter to have standing to seek the issuance of a writ of quo warranto.

Coghlan v. Borough of Darby, 844 A.2d 624, 628 (Pa. Commw. Ct. 2004).

Bird’s amended complaint alleges that the Borough was required to select

full-time police officers under its civil service commission’s rules and

regulations, and its failure to follow those rules and regulations denied

Bird “the opportunity to be selected” for a full-time position. (Doc. 25

¶¶37-39) But even if successful in this action, Bird is not guaranteed to

be placed in a position as full-time police officer. By her own allegation,

if successful, she will only have “an opportunity to be selected” for the

position—arguably the same opportunity that may apply to other

members of the public generally. Therefore, based upon the foregoing,

Bird has not pled sufficient “special interest” to have standing to seek a

writ of quo warranto. Thus, Count III will be dismissed.

Similarly, Bird’s contention that she stated a claim for wrongful

discharge based upon the public policy exception to the at-will

employment doctrine lacks merit. Bird has not alleged that she was

discharged.

C. Leave to Amend

The Third Circuit has instructed that if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be

inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002). This instruction applies equally to pro se plaintiffs and

those represented by counsel. Alstonv. Parker, 363 F.3d 229, 235 (3d Cir.

2004). In this case, it not clear that amendment would be futile, nor is

there any basis to believe it would be inequitable. Thus, we will grant

leave for Bird to file a second amended complaint within twenty-one (21)

days following the partial dismissal of her amended complaint.

An appropriate order follows.

s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge

Dated: February 28, 2020