Reeder v. Hagan

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DUSTIN REEDER, No. 4:20-CV-00591

Plaintiff, (Judge Brann)

v.

DAMON HAGAN, DEREK

SLAUGHTER, and FRED MILLER,

IV,

Defendants.

MEMORANDUM OPINION

DECEMBER 28, 2020

I. BACKGROUND

On October 15, 2020, Plaintiff, Dustin Reeder filed a two-count First

Amended Complaint against Defendants Damon Hagan, Derek Slaughter, and

Frederick L. Miller IV. Bringing his claim under 42 U.S.C. § 1983, Plaintiff

alleges that Defendants have retaliated against him, in violation of the First

Amendment of the United States Constitution. This Court previously dismissed

Plaintiff’s initial complaint and granted leave to amend.1

1 The Court notes that three complaints were filed in the Middle District of Pennsylvania by

Plaintiff’s counsel, James L. Best, Esq., within two weeks of one another. The three cases

involve similar claims against a similar (though not identical) group of Defendants. A

comparison of both the First Amended Complaints and briefings filed by the parties serves to

highlight the similarities among the three litigations. See Miller v. Campana et al., 4:20-cv-

00485 (filed March 25, 2020) and Mayes v. Campana et al., 4:20-cv-00499 (filed March 27,

On October 29 and 30, 2020, the various Defendants filed motions to

dismiss. Defendants once again argue that Plaintiff’s complaint violates Federal

Rule of Civil Procedure 8’s requirements that a complaint contain a “short and

plain statement” of the claim and be “simple, concise, and direct.” Defendants

further move, once more, to dismiss the complaint on its merits under FRCP

12(b)(6) for failure to state a claim.

The motion is now ripe for disposition; for the reasons that follow,

Defendants’ motions to dismiss are granted. The action is dismissed, but this time,

Plaintiff will not receive leave to amend.

II. DISCUSSION

A. The FAC does not state a claim upon which relief may be granted.

1. Motion to Dismiss Standard

Under Fed. R. Civ. P. 12(b)(6), the Court dismisses a complaint, in whole or

in part, if the plaintiff has failed to “state a claim upon which relief can be

granted.” A motion to dismiss “tests the legal sufficiency of a pleading”2 and

“streamlines litigation by dispensing with needless discovery and factfinding.”3

“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive

2 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.

Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.).

issue of law.”4 This is true of any claim, “without regard to whether it is based on

an outlandish legal theory or on a close but ultimately unavailing one.”5

Following the Roberts Court’s “civil procedure revival,”6 the landmark

decisions of Bell Atlantic Corporation v. Twombly7 and Ashcroft v. Iqbal8

tightened the standard that district courts must apply to 12(b)(6) motions.9 These

cases “retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and

replaced it with a more exacting “plausibility” standard.10

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’”11 “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”12 “Although the

plausibility standard does not impose a probability requirement, it does require a

pleading to show more than a sheer possibility that a defendant has acted

4 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

5 Neitzke, 490 U.S. at 327.

6 Howard M. Wasserman, THE ROBERTS COURT AND THE CIVIL PROCEDURE REVIVAL, 31 Rev.

Litig. 313, 316, 319-20 (2012).

7 550 U.S. 544 (2007).

8 556 U.S. 662, 678 (2009).

9 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957))

(“[a]cknowledging that Twombly retired the Conley no-set-of-facts test”).

10 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that

Twombly retired the Conley no-set-of-facts test”).

11 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

unlawfully.”13 Moreover, “[a]sking for plausible grounds . . . calls for enough facts

to raise a reasonable expectation that discovery will reveal evidence of

[wrongdoing].”14

The plausibility determination is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.”15 No matter

the context, however, “[w]here a complaint pleads facts that are ‘merely consistent

with’ a defendant’s liability, it ‘stops short of the line between possibility and

plausibility of entitlement to relief.’”16

When disposing of a motion to dismiss, the Court “accept[s] as true all

factual allegations in the complaint and draw[s] all inferences from the facts

alleged in the light most favorable to [the plaintiff].”17 However, “the tenet that a

court must accept as true all of the allegations contained in the complaint is

inapplicable to legal conclusions.”18 “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.”19

As a matter of procedure, the United States Court of Appeals for the Third

Circuit has instructed that:

13 Connelly v. Lane Const. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (internal quotations

and citations omitted).

14 Twombly, 550 U.S. at 556.

15 Iqbal, 556 U.S. at 679.

16 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).

17 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

18 Iqbal, 556 U.S. at 678 (internal citations omitted); see also Fowler v. UPMC Shadyside, 578

F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘bare-

bones’ allegations will no longer survive a motion to dismiss.”).

Under the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps. First, it

must tak[e] note of the elements [the] plaintiff must plead to state a

claim. Second, it should identify allegations that, because they are no

more than conclusions, are not entitled to the assumption of truth.

Finally, [w]hen there are well-pleaded factual allegations, [the] court

should assume their veracity and then determine whether they plausibly

give rise to an entitlement to relief.20

2. Facts Alleged in the First Amended Complaint

The facts alleged in the FAC, which I must accept as true for the purposes of

this motion, are as follows.

Plaintiff was an officer with the Williamsport Bureau of Police (“WBP”).21

During the period of time relevant to the claim, Plaintiff had an “extremely

coveted” special assignment.22 In late 2015, Gabriel Campana (the then-mayor of

Williamsport) hired David Young as the new chief of the WBP.23 Chief Young

began working in the WBP in April 2016.24 It was Chief Young who gave Plaintiff

his special assignment.25 Chief Young’s hiring was unpopular with the “rank and

file” of the WBP and its union.26 Plaintiff “worked under and closely with” Chief

Young and two other Captains (Jody Miller and Don Mayes) and was a “vocal

supporter” of the policies of police reform they proposed.27 Plaintiff “spoke out

20 Connelly, 809 F.3d at 787 (internal quotations and citations omitted).

21 Doc. 25 at ¶ 8.

22 Id. at ¶ 10.

23 Id. at ¶ 13.

24 Id.

25 Id. at ¶ 9.

26 Id. at ¶ 12.

publically” [sic] in support of reform and against what he believed was unethical

behavior by past administrators.28

Plaintiff was tasked with administering the Mayor’s and Chief’s reform

goals. His “job was . . . to broadly implement progressive management.”29

According to Plaintiff, however, not everyone was pleased with Chief Young’s

police administration; its attempts to “revamp the WBP” were met with some level

of “animosity.”30 Lawsuits, Equal Employment Opportunity Commission

complaints, and other grievances ensued.31 These filings were intended to put

public pressure on the Mayor.32

Plaintiff alleges that at some point, the police administration’s relationship

with Mayor Campana deteriorated.33 Thereafter, Plaintiff alleges that Chief Young

announced his resignation from the WBP.34 Mayor Campana eventually hired

Damon Hagan as the new Chief of Police.35 Plaintiff alleges he was subsequently

“targeted, investigated, harassed, and ultimately severely disciplined unfairly” in

retaliation for his history of speaking out in favor of police reform.36

28 Id. at ¶ 14.

29 Id. at ¶ 17.

30 Id. at ¶ 19.

31 Id.

32 Id.

33 Id. at ¶ 21.

34 Id. at ¶ 23.

35 Id. at ¶ 24.

3. Analysis

The claims in this action have changed slightly from the original complaint.

Plaintiff asserts that he was retaliated against for engaging in free speech (Count 1)

and for exercising his freedom of association (Count 2). Although “public

employees do not surrender all their First Amendment rights by reason of their

employment”37 the United States Supreme Court has noted the need to strike a

“careful balance ‘between the interests of the [employee], as a citizen, in

commenting upon matters of public concern[,] and the interest of the State, as an

employer, in promoting the efficiency of the public services it performs through its

employees.’”38

In order to establish a First Amendment retaliation claim, “a public

employee must show that (1) his [activity] is protected by the First Amendment

and (2) the [activity] was a substantial or motivating factor in the alleged

retaliatory action, which, if both are proved, shifts the burden to the employer to

prove that (3) the same action would have been taken even if the [activity] had not

occurred.”39 “A public employee’s statement is protected activity when (1) in

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

37 Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); see also Rankin v. McPherson, 483 U.S. 378,

383 (1987) (“[A] State may not discharge an employee on a basis that infringes that

employee’s constitutionally protected interest in freedom of speech.”).

38 Lane v. Franks, 573 U.S. 228, 236 (2014) (first alteration in original) (quoting Pickering v.

Bd. Of Ed., 391 U.S. 563, 568 (1968).

39 Falco v. Zimmer, 767 Fed.Appx.288, 299 (3d Cir. 2019); see also Dougherty v. School Dist.

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.”40 Accordingly, the first

question for this Court is whether Plaintiff’s statements were made in his role as an

employee, or his role as a citizen. If Plaintiff spoke as an employee, his First

Amendment claim must fail at step 1.41

a. Plaintiff’s speech was not protected.

Defendants suggest that Plaintiff’s claim must fail because: (1) the speech at

issue is not constitutionally protected; (2) there was no retaliatory conduct; and (3)

there is no causal link between any alleged speech and retaliatory conduct.

Therefore, I begin with the question of whether Plaintiff engaged in protected

speech.

First, I consider whether Plaintiff spoke as a citizen or pursuant to his

official 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.”42 Under Garcetti v. Ceballos, this Court must engage in a “practical”

inquiry; this does not turn merely “on an employee’s formal job description.”43 As

40 Hill v. Burough of Kutztown, 455 F.3d 225 (3d Cir. 2006) (internal quotation marks omitted)

(quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).

41 Garcetti v. Ceballos, 547 U.S. 410 (2006).

42 Garcetti, 547 U.S. at 421 (2006).

noted by my colleague, the Honorable Malachy E. Mannion of this Court,

“[e]xpression does not have to fall within a public employee’s job description or

response to an employer’s inquiry in order to constitute speech made pursuant to

the speaker’s official duties.”44 Instead, the Court should consider factors such as

“employee’s duties, the impetus for his or her speech, the setting and subject

matter of that speech, and the identities of the individuals to whom that speech is

addressed.”45 In determining if the alleged speech is protected, I may also consider

“whether the speech was made inside or outside of the work place and whether it

concerned the subject matter of the speaker’s employment.”46

Plaintiff’s complaint alleges that he “worked under and closely with Chief

Young [and others] and was a vocal supporter of the[ir] policies of police

reform.”47 Plaintiff’s complaint is largely devoid of the details necessary to

support an argument that his speech was made as a citizen. Plaintiff states that his

job was to “broadly implement progressive management.”48 Beyond this,

however, all Plaintiff provides are vague assertions that he “spoke out publically”

[sic] in support of reform and against unethical behavior.49 If anything, based on

his allegations, it appears that he spoke as an employee; he shared his concerns

44 Id. (citing Weintraub v. Board of Education, 593 F.3d 196, 203 (2d Cir. 2010)).

45 Id. (citing Brown v. Tucci, 960 F.Supp.2d 544 (W.D. Pa. 2013)).

46 Brown v. Tucci, 960 F.Supp.2d 544, 576 (W.D. Pa. 2013).

47 Doc. 25 ¶ 13.

48 Id. ¶ 17.

with “colleagues, supervisors, members of the City Council and administration,

and members of the public.” Examining the individuals he spoke to,50 most of

them appear to be in his professional circle, and he would have made those

statements in his capacity as an employee. Plaintiff has certainly not pled

otherwise.

In briefing, Plaintiff bolsters this interpretation, arguing that he “acted as a

close assistant to Chief Young in attempting to change the culture” and “ruffled

many feathers” by “exposing fraud, waste, abuse, mismanagement” and other

problems.51 Curiously, the allegations about fraud and mismanagement are not

pled where Plaintiff cites to52 – nor, indeed, are the words “fraud” and

“mismanagement” found anywhere in the FAC.53 But even taking Plaintiff’s

argument at face value, it suggests that this speech was made in his role as a “close

assistant” to the Chief of Police, his supervisor.

Plaintiff has not pled facts that would allow this Court to find that the

statements were anything other than made within the scope of his employment.

That Plaintiff was not specifically “tasked to speak or transmit information”54 to

those officials does not lead to the conclusion that this speech was outside the

50 See Brown v. Tucci, 960 F.Supp.2d 544, 576 (W.D. Pa. 2013).

51 Doc. 31 at 2.

52 Plaintiff directs the Court to Doc. 20 ¶ 19. The Court assumes this is simply a typographical

error and Plaintiff meant Doc. 25, the FAC.

53 The word “abuse” is used in the FAC, but never in the context of any impropriety Plaintiff

claims he exposed.

scope of his job as a police officer, particularly when juxtaposed with his

allegation that his job was to “implement progressive management.”55 Plaintiff

pleads no other facts that would lead to the inference that he spoke out as a citizen

rather than as an employee.

Plaintiff argues that “there was non-criminal mismanagement, unethical

behavior, waste of public resources, and dysfunction in the operations of the WPD

and that he was punished for speaking out as a citizen on these matters.”56 But

Plaintiff’s argument misses the mark; the controlling question is not whether the

conduct at issue was necessarily criminal. Rather, it is whether the speech fell

within the scope of Plaintiff’s employment. The answer to that question, according

to Plaintiff’s pleading, is at best unclear, but more accurately: “yes.” Plaintiff

cannot use the vagueness of his own complaint to avoid dismissal.

Furthermore, Plaintiff’s attempt to conflate the various elements that he must

establish is unavailing. He must show that he both spoke as a citizen and that he

spoke on a matter of public concern. The fact that something is of public concern

does not, in and of itself, mean that an employee spoke out as a citizen.

Accordingly, his argument that “[a]s a citizen, [Plaintiff] should be encouraged to

bring such information into the public view”57 carries little weight, as it does not

support any of the elements at issue.

55 Id.

56 Doc. 31 at 7.

Plaintiff’s other argument also falls flat. He claims that he “criticized the

city government’s management of police affairs” and “criticized an ‘old guard’ of

police officers as lazy, incompetent etc. [sic].”58 But the word “lazy” (or any

variant thereof) never appears in the complaint; the word “incompetent” (or any

variant thereof) appears just once in a conclusory statement, wherein Plaintiff

suggests that he engaged in free speech.59 Otherwise, neither of these “criticisms”

are found anywhere in the pleading. But this argument also does not answer the

question of whether Plaintiff’s criticism was made within the scope of his

employment.

Again, the Court asks: what is in the pleading? Plaintiff’s allegations that he

raised concerns regarding issues of misconduct and that he was supposed to

implement reforms.60 Despite Plaintiff’s protests to the contrary, this case is not

“clearly distinguishable” from Lahovski v. Rush Tp., or other well-established

precedent. It is telling that Plaintiff was not able to point to a single case as an

example that this sort of speech is protected under the First Amendment to the

United States Constitution. Plaintiff’s speech about the issues he was seeking to

reform is not plausibly pled to be outside the scope of his employment.

Even if Plaintiff had sufficiently pleaded that he engaged in protected

speech, he fails to establish any causal connection between his alleged speech and

58 Doc. 31 at 8.

59 Doc. 25 ¶ 35.

any retaliatory conduct. “To establish the requisite causal connection a plaintiff

usually must prove either (1) an unusually suggestive temporal proximity between

the protected activity and the allegedly retaliatory action, or (2) a pattern of

antagonism coupled with timing to establish a causal link.... In the absence of that

proof the plaintiff must show [(3)] that from the evidence gleaned from the record

as a whole the trier of the fact should infer causation.”61

Generally, this element “presents a question of fact for the jury. But, at this

motion to dismiss stage, [Plaintiff] must only produce some evidence, direct or

circumstantial, of this element that is enough to raise a right to relief above the

speculative level.”62 Defendants argue that Plaintiff’s complaint does not plead

sufficient facts to satisfy this requirement. I agree.

First, Plaintiff did not respond to the argument raised by Defendants as to

causation. By failing to respond to Defendants’ argument on this issue, this

portion of Defendants’ motion to dismiss is unopposed.63 However, even had

Plaintiff opposed, he would have failed, because his complaint is devoid of any

sort of timeline that the Court could use to evaluate causation. Plaintiff

61 Lauren W. ex rel. Jen W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (internal quotations

and citations omitted).

62 Falco v. Zimmer, 767 Fed.Appx.288, 310 (3d Cir. 2019) (internal quotations and citations

omitted).

63 See M.D. Pa. L.R. 7.6; see also Sikkelee v. Precision Airmotive Corp., 2011 WL 1344635 at

*4 (M.D. Pa. Apr. 8, 2011) (dismissing claims as unopposed when the plaintiff failed to

respond to arguments made by the defendants in support of their motion to dismiss); Lada v.

Delaware Cnty. Cmty. Coll., 2009 WL 3217183, at *10 (E.D. Pa. Sept. 30, 2009) (“To put it

simply: plaintiffs who fail to brief their opposition to portions of motions to dismiss do so at

specifically points to two incidents which he claims were retaliatory. He does not

provide any dates for when these events took place. It is impossible to determine

whether there is an unusually suggestive temporal proximity. Furthermore,

without the chain of events more clearly described, the Court cannot infer

causation. For both of these reasons, the Court does not find that Plaintiff has pled

facts supporting a finding of causation and finds that the claim would

independently fail on this ground.

b. Plaintiff’s association claim fails because it is

coextensive with his speech claim.

Plaintiff also raises a claim of retaliation in violation of his freedom of

association. Such a claim, however, “should be dismissed when it is coextensive

with the plaintiff’s freedom of speech claim.”64 Defendants argue that the two

claims are coextensive. Their argument succeeds for two reasons: (1) Plaintiff did

not oppose it in his brief; and (2) Defendants are correct.

Plaintiff did not address in his opposition the argument that the two claims

are coextensive. Again, by failing to respond to Defendants’ argument on this

issue, this portion of Defendants’ motion to dismiss is unopposed.65 That alone is

sufficient to dismiss this claim.

64 Myers v. City of Wilkes-Barre, PA, 448 F.Supp.3d 400, 416 (M.D. Pa. 2020).

65 See M.D. Pa. L.R. 7.6; see also Sikkelee v. Precision Airmotive Corp., 2011 WL 1344635 at

*4 (M.D. Pa. Apr. 8, 2011); Lada v. Delaware Cnty. Cmty. Coll., 2009 WL 3217183, at *10

But Defendants also find support for their proposition in both the FAC and

Plaintiff’s brief in opposition to the motion to dismiss. The FAC alleges, as

discussed above, that Plaintiff engaged in protected speech by criticizing certain

individuals. It also claims that Plaintiff “engaged in protected activity of

association by associating with [three other individuals] as critics of the

management of the police department and city government . . .”66 Plaintiff argues

that “he engaged in constitutionally protected conduct – critical speech of the

administration and WPD as well association for this purpose with his fellow

Plaintiffs.”67 This indicates that the association claim is coextensive with the

speech claim. Plaintiff’s briefing repeatedly connects the two claims. They are not

“independent and distinct” from one another.68 Because they are coextensive, this

claim cannot survive.

III. CONCLUSION

Based on the complaint, I find that because Plaintiff’s alleged speech was

made within the scope of his employment, it is not protected. Furthermore,

Plaintiff has not established causation. Therefore, Plaintiff’s First Amendment

claims fail. Defendants’ motions to dismiss are granted. Defendants’ motion to

strike is denied as moot.

66 Doc. 25 ¶ 42.

67 Doc. 32 at 5 (emphasis added).

Leave to amend is denied. “Among the grounds that could justify a denial of

leave to amend are undue delay, bad faith, dilatory motive, prejudice, and

futility.”69 “Futility” means that the complaint, as amended, would fail to state a

claim upon which relief could be granted.70 Although there is a “liberal pleading

philosophy of the federal rules” a court will dismiss the amended complaint in its

entirety with prejudice because another opportunity for amendment would be

futile.71 “Futility” means that the complaint, as amended, would fail to state a

claim upon which relief could be granted.72 Plaintiff has had two chances to plead

a cognizable claim. His theory of the case remains unchanged despite this Court’s

previous holding, and it appears that it would be futile to amend. Furthermore, the

Court finds that requiring Defendants to brief this matter a third time would result

in prejudice. Accordingly, leave to amend is denied.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

69 Lorenz v. CSX Corp., 1 F.3d 1406, 1413–14 (3d Cir.1993).

70 Burlington, at 1434. In assessing “futility,” the District Court applies the same standard of

legal sufficiency as applies under Rule 12(b)(6). Id.; 3 Moore’s Federal Practice, supra §

15.15[3], at 15–47 to –48 (3d ed.2000).

71 See Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008).