PERCIAVALLE v. CITY OF ALIQUIPPA

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOSEPH PERCIAVALLE, II,

Plaintiff, Civil Action No. 2:20-cv-474

v. Hon. William S. Stickman IV

CITY OF ALIQUIPPA, et al,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, District Judge.

Plaintiff, Joseph Perciavalle III (“Perciavalle”), a City of Aliquippa police officer, filed

this action on April 2, 2020. (ECF No. 1). He then filed an Amended Complaint on July 10,

2020 (ECF No. 27), which was followed by a Second Amended Complaint on August 10, 2020

(ECF No. 44). On September 30, 2020, he filed a Third Amended Complaint. (ECF No. 63).

The Defendants that remain in the case, City of Aliquippa and Dwan Walker (“Walker”), filed a

Motion to Dismiss Perciavalle’s Third Amended Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6) on October 14, 2020 along with a supporting brief. (ECF Nos. 70 and 71).

The matter was reassigned to the Court on November 25, 2020. Briefing has concluded, and

Defendants’ motion is ripe for disposition. Defendants’ motion will be granted.

I. STANDARD OF REVIEW

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A

plaintiff must allege sufficient facts that, if accepted as true, state a claim for relief that is

plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must accept all well-pleaded factual

allegations as true and view them in the light most favorable to a plaintiff. See Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009); see also DiCarlo v. St. Marcy Hosp., 530 F.3d 255,

262-63 (3d Cir. 2008). Although this Court must accept the 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.” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.

2007) (citations omitted).

I. FACTUAL BACKGROUND

In 2011, Perciavalle became employed by the City of Aliquippa as a police officer. In

2014, he was promoted to Assistant Chief. (ECF No. 63, f§ 8-9). In 2015, he began making

“complaints” to Walker and “various other city council members about wrongdoing within

Defendant Aliquippa’s police department, including, but not limited to, wrongdoing committed

by Chief Couch.” (ECF No. 63, § 10). Perciavalle also made similar “complaints” to other law

enforcement agencies. The “complaints” related to “corruption” with the City of Aliquippa

police department, including the “mismanagement of departmental funds and/or additional

illegalities committed by various individuals, including Chief Couch.” (ECF No. 63, {9 11-14).

In March of 2016, Perciavalle made a report of wrongdoing by Chief Couch (ie.,

“mismanagement of departmental funds/ and or additional illegalities”) to the Beaver County

District Attorney as well as “to various individuals and/or agencies.” (ECF No. 63, ff 15-17).

In the following months, Perciavalle had discussions with District Attorney Lozier “relating to

the wrongdoing taking place” within the police department and “various ongoing investigations.”

(ECF No. 63, 18-19).

On June 6, 2018, Chief Couch was removed from his position and placed on

administrative leave. Perciavalle was appointed Acting Chief. Two days later, Perciavalle was

charged with various criminal offenses and removed from his position and placed on paid

administrative leave. On July 10, 2018, Perciavalle was charged with an additional criminal

offense. The felony charges against Perciavalle - distribution of explicit sex materials to a minor

and unlawful contact with a minor - were dismissed at his December 4, 2018 preliminary

hearing. On July 25, 2019, the felony charge of intercepting communications against him was

nolle prossed. On March 13, 2019, Perciavalle’s remaining criminal charge — corruption of

minors — was nolle prossed. (ECF No. 63, {ff 20-26).

In March of 2020, Perciavalle, who remained on administrative leave, made “yet another

good faith report of ongoing wrongdoing within Defendant Aliquippa’s police department” to

members of the City of Aliquippa’s council and “various individuals and/or agencies.” (ECF

No. 63, §§ 27-28). These “complaints” related to “corruption” within the City of Aliquippa

police department, including the “mismanagement of departmental funds and/or additional

illegalities committed by various individuals, including Chief Couch.” (ECF No. 63, 29),

Perciavalle “believes, and therefore avers, that a member and/or members of Defendant

Aliquippa’s council reported [his] complaint to Defendant Walker.” (ECF No. 63, { 30).

Walker allegedly responded to these individuals, “No, you’re chasing [Perciavalle’s] waterfalls

again.” (ECF No. 63, 9 30).

Perciavalle was not permitted to return to his position as a police officer. City of

Aliquippa’s reason for not doing so was “{Perciavalle’s] dissemination of allegedly inappropriate

materials in the workplace, as well as allegedly inappropriate interactions with coworkers.” The

inappropriate materials consisted of lewd text messages, crude drawings, and off-color memos.

The inappropriate interactions consisted of conversations with other officers, one of which

involved Perciavalle calling another officer rude names. Perciavalle alleges that five other

officers “engaged in the same or substantially similar conduct” and were not disciplined. (ECF

No. 63, Jf 31-35).

Since he filed this action, Perciavalle alleges that “Walker has indicated to various

members of [Perciavalle’s] community that he would not return [Perciavalle] to his position as a

law enforcement officer [. . .] as a direct result of his pending lawsuit.” Perciavalle “believes,

and therefore avers,” that Walker, “in his capacity as mayor,” refuses to return him to his

position in retaliation for his reports of “ongoing wrongdoing” within the police department

and/or in retaliation for the filing of the instant lawsuit. He further alleges that in June of 2020,

Walker “indicated to various members of [Perciavalle’s] community that [Perciavalle] was a

‘pervert’ and that [Perciavalle] had ‘slipped through the cracks’ when the criminal charges

against him were nolle prossed.” (ECF No. 63, {j 37-40).

Tl. ANALYSIS

A, 42 U.S.C. § 1983 claims — Counts I through IV

42 U.S.C. § 1983 provides a cause of action against any person who, acting under the

color of state law, deprives another of his or her federal rights, and, under certain circumstances,

the municipal employer and/or supervisor of such a person. To obtain relief under § 1983, a

plaintiff must make a two-prong showing: (1) that he suffered a violation of a right secured by

the Constitution and laws of the United States; and, (2) that the alleged deprivation was

committed by a person acting under the color of state law. See Karns v. Shanahan, 879 F.3d

504, 520 (3d Cir. 2018) (citations omitted).

1. The claims against Walker at Counts I and II and City of Aliquippa at

Counts I, II and II are dismissed without prejudice.

In Counts I and II, Perciavalle sued Walker in his individual capacity’ and the City of

Aliquippa. Count III is Perciavalle’s municipal liability claim against the City of Aliquippa.

Count I alleges First Amendment Retaliation based upon Perciavalle’s “numerous reports of

wrongdoing within Defendant Aliquippa’s police department.” (ECF No. 63, 48). Itis alleged

that Walker, “a decision-maker for Defendant Aliquippa in his capacity as mayor of Defendant

Aliquippa” “prohibited” Perciavalle from returning to his position as a law enforcement officer

for exercising his right to freedom of speech. (ECF No. 63, §{] 49-50). Count II alleges First

Amendment Retaliation based on the filing of the instant lawsuit. (ECF No. 63, 4 57). It is

alleged that Walker, “a decision-maker for Defendant Aliquippa in his capacity as mayor of

Defendant Aliquippa” “prohibited” Perciavalle from returning to his position as a law

enforcement officer for exercising his right to freedom of speech. (ECF No. 63, §{f 58-59). In

his briefing to the Court, Perciavalle emphasizes that his complaints of wrongdoing within the

police department were made as a private citizen even though they involved the subject matter of

his employment. (ECF No. 75, pp. 4-5).

! Walker was the elected mayor of the City of Aliquippa at the time of the events recounted in

the Third Amended Complaint. Individual capacity claims under section 1983 “seek to recover

money from a government official, as an individual, for acts performed under color of state law.”

Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988). To plead a sufficient civil rights claim

against a defendant in his individual capacity, a plaintiff must show that the defendant had

“personal involvement in the alleged wrongs; liability cannot be predicated solely on the

operation of respondeat superior.” Rode vy. Dellariciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)

(citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981)); see also Evancho y. Fisher, 423 F.3d

347, 353 (3d Cir. 2005) (dismissing claims against Attorney General for failing to describe his

personal involvement). Personal involvement can be shown by alleging either personal direction

or actual knowledge of and acquiescence in a subordinate's actions. Rode, 845 F.2d at 1207.

Allegations of participation or actual knowledge and acquiescence, however, must be made with

appropriate particularity. Id.

‘The basic principles of First Amendment retaliation are well established. “Official

reprisal for protected speech offends the Constitution [because] it threatens to inhibit exercise of

the protected right.” Mirabella v. Villard, 853 F.3d 641, 649 (3d Cir. 2017) (quoting Hartman v.

Moore, 547 U.S. 250, 256 (2006)) (alteration in original) (internal quotations omitted). “[T]o

plead a retaliation claim under the First Amendment, a plaintiff must allege: (1) constitutionally

protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from

exercising his constitutional rights, and (3) a causal link between the constitutionally protected

conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006)

(citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). “The key question in determining

whether a cognizable First Amendment claim has been stated is whether the alleged retaliatory

conduct was sufficient to deter a person of ordinary firmness from exercising his First

Amendment rights.” Id. (citing McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (internal

quotation marks omitted); see also Crawford-El v. Britton, 523 U.S. 574, 588 n. 10 (1998)

(“The reason why such retaliation offends the Constitution is that it threatens to inhibit exercise

of [a constitutionally] protected right.”). The third element, “a causal link,” requires “but-for”

causation. Mirabella, 853 F.3d at 651. “In order to establish the required 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.” Rink v. Ne. Educ. Intermediate Unit 19, 717 F. App’x 126,

133 (3d Cir. 2017) (citation omitted).

The facts pled in support of Perciavalle’s claims are scant and, therefore, it is difficult to

ascertain exactly what constitutionally protected speech is at issue. Nevertheless, assuming

Perciavalle’s “complaints” about the City of Aliquippa’s police department are entitled to

protection under the First Amendment, his attempt to plead a retaliation claim against Walker in

his individual capacity falls short. There are no specific facts pled in the Third Amended

Complaint that Walker committed any specific affirmative acts so as to violate Perciavalle’s First

Amendment rights. It is completely unclear as to when or exactly how Walker “prohibited”

Perciavalle from being reinstated to his position as a City of Aliquippa police officer. As pled,

Walker committed no specific retaliatory affirmative acts against Perciavalle, and Perciavalle’s

claims against Walker are purely speculative. While Perciavalle does not have to prove his

claims in the Third Amended Complaint, his cause of action cannot be premised on mere

speculation. Counts I and II against Walker in his individual capacity are dismissed without

prejudice for failure to state a claim. Perciavalle will be given one last chance to amend Counts I

and II against Walker.

Perciavalle’s First Amendment retaliation claims against the City of Aliquippa are also

inadequately pled. A municipal entity cannot be held liable pursuant to § 1983 under the theory

of respondeat superior. Monell v. Dep’t of Social Services of New York, 436 U.S. 658, 691

(1978). “[I]t is when execution of a [municipality'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.” Jd. at 694. Municipal

entities may only be held liable under § 1983 on (1) an express municipal policy, such as an

ordinance, regulation, or policy statement, see Monell, 436 U.S. at 694, (2) a “widespread

practice, that although not authorized by written law or express municipal policy, is ‘so

permanent and well settled as to constitute a custom or usage’ with the force of law,” see City of

St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 US.

144, 167-68 (1970)), or (3) the decision of a person with “final policymaking authority.” See

Praprotnik, 485 U.S. at 123; see also Pembaur vy, City of Cincinnati, 475 U.S. 469, 481-83

(1986). A municipality may be held liable under § 1983 only when the enforcement of the

municipal policy or practice was the “moving force” behind the violation of a plaintiff's federal

protected right. Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 400 (1997);

City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989).

Since Perciavalle failed to state a cognizable First Amendment retaliation claim against

Walker, his Monell claim fails as a matter of law. There is no viable Monell claim as no

violation of a constitutional right has been plausibly pled. See Deninno v. Municipality of Penn

Hills, 269 F. App’x 153, 158 (3d Cir. 2008) (“Even more fundamentally, there can be no

municipal liability here because we have determined that none of the individual Defendants

violated the Constitution.’’) (citations omitted).

Even if Perciavalle had properly alleged First Amendment retaliation claims, his

allegations fall short of containing any of the necessary elements of a Monell claim against the

City of Aliquippa. The Monell claims, as pled in the Third Amended Complaint, are confusing.

In his response to the City of Aliquippa’s motion, Perciavalle submits “Plaintiff clearly pled that

Defendant Walker, as mayor (and de facto head of Defendant Aliquippa’s police department),

acted as a decision maker with final authority to discipline municipal employees when he refused

to return Plaintiff to his position as a law enforcement officer for Defendant Aliquippa.” (ECF

No. 75, p. 10). The Court acknowledges that it is possible to find the existence of a municipal

policy in “the isolated decision of an executive municipal policymaker.” City of St. Louis, 485

USS. at 139. However, nothing about Perciavalle’s claims at Counts J and II are “clearly pled”

Monell claims. His Monell claims fail because they do not identify any particular or specific

policy or custom and how the City of Aliquippa and/or Walker allowed the claimed

constitutional violations to occur (or possessed notice through a pattern of similar constitutional

violations). Aside from dubbing Walker a “policy maker,” the allegations fail to link an

offending policy or custom to him or sufficiently articulate the specifics of a deliberate decision

made by Walker. Perciavalle’s claims fail to satisfy the pleading requirements for municipal

liability. Accordingly, Counts I, II and III against the City of Aliquippa are dismissed without

prejudice for Perciavalle to amend them one last time.

2. Count IV against Defendants is dismissed without prejudice.

Because the Court is permitting Perciavalle to amend Counts I, II and III, it will also

permit him to amend Count IV, “Equal Protection — Class of One.” In response to Defendants’

argument that a Class of One Theory is inapplicable in the public employment context and that

Perciavalle’s allegations fail to provide sufficient factual information demonstrating differential

treatment from similarly situated individuals (ECF No. 71, pp. 8-12), Perciavalle altered his

theory of liability in his response to Defendants’ motion to be that of selective enforcement (ECF

No. 75, pp. 7-9). While a response to a motion to dismiss is an inappropriate method to amend a

claim, the Court will nonetheless permit Perciavalle to amend Count IV through the filing of a

Fourth Amended Complaint to set forth a viable selective treatment claim. As it is currently

pled, Perciavalle has set forth nothing but mere conclusory contentions. While he refers to five

individuals “who engaged in the same or substantially similar conduct,” but were not disciplined,

Perciavalle has failed to identify the specific actions taken by these individuals — i.e., the nature

of their statements and/or conduct and the resulting disciplinary action. Count IV will be

dismissed without prejudice, and Perciavalle will be given one last chance to amend Count IV

against Defendants. .

3. The official capacity claims against Walker at Counts I, II and IV are

dismissed with prejudice.

The Court will dismiss the official capacity claims against Walker at Counts I, II and IV

with prejudice because Perciavalle has also sued the City of Aliquippa. The law is well-settled

that where, as here, the appropriate governmental unit is identified as a defendant, official-

capacity suits should be dismissed as redundant. Kentucky v. Graham, 473 U.S. 159, 165-66

(1985). See also Gregory v. Chehi, 843 F.2d 111, 119-20 (3d Cir. 1988) (claims, insofar as they

are against the defendant officials in their official capacities, are a duplication of the counts

asserted against the Township itself); Cuvo v. De Biasi, 169 F. App’x 688, 693 (3d Cir. 2006)

(affirming dismissal “against the officers in their official capacities because a lawsuit against

public officers in their official capacities is functionally a suit against the public entity that

employs them”). Such claims “‘generally represent only another way of pleading an action

against an entity of which an officer is an agent,’ Monell, 436 U.S. at 690 n.55. ‘As long as the

government entity receives notice and an opportunity to respond, an official-capacity suit is, in

all respects other than name, to be treated as a suit against the entity.’[ ] It follows therefore that

the claims here, insofar as they are against the defendant officials in their official capacities, are

only a duplication of the [claims] asserted against the [County] itself’ Gregory, 843 F.2d at

120. See also Brice v. City of York, 528 F. Supp. 2d 504, 516 n.19 (M.D. Pa. 2007) (claims

against state officials in their official capacities merge as a matter of law with the municipality

that employs them). A judgment against a public servant ‘in his official capacity’ imposes

liability on the entity that he represents[.]” Brandon v. Holt, 469 U.S. 464, 471 (1985).

Accordingly, because the City of Aliquippa is named as a defendant in this action,

Perciavalle’s official-capacity claims against Walker will be dismissed. Although a court should,

generally, give a plaintiff in an action under Section 1983 leave to amend, it is not necessary

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where amendment would be futile. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d. Cir.

2008). Here, no amendment will be able to cure the defect in Perciavalle’s claims against

Walker in his official capacity. As such, the official capacity claims against Walker at Counts I,

II and IV are dismissed with prejudice.

B. Pennsylvania tort claims — Counts V through VII

As the Court has dismissed all of Perciavalle’s federal claims, it declines to exercise

supplemental jurisdiction over his Pennsylvania tort claims. 28 U.S.C. § 1367(a). There are no

“extraordinary circumstances” which warrant the exercise of jurisdiction. Counts V through VII

will be dismissed. Perciavalle may, of course, reassert them if he files a Fourth Amended

Complaint.

IV. CONCLUSION

By Order of Court to follow, Defendants’ Motion to Dismiss will be granted for the

foregoing reasons of law and fact. Perciavalle will be afforded twenty-one days to file a Fourth

Amended Complaint as to those counts that will be dismissed without prejudice.

BY THE COURT:

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UNITED STATES DISTRICT JUDGE

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