Jeanne Zaloga v. Borough of Moosic

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-2723

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JEANNE ZALOGA; EDWARD ZALOGA, D.O., C.P.A.;

CORRECTIONAL CARE INC

v.

BOROUGH OF MOOSIC; MOOSIC BOROUGH

COUNCIL; MOOSIC BOROUGH PLANNING

COMMISSION; MOOSIC BOROUGH ZONING BOARD

OF ADJUSTMENTS; JOSEPH MERCATILI, Individually

and in his official capacities as President of Moosic Borough

Council; JOSEPH DENTE, Individually and in his official

capacity as Vice President of Moosic Borough Council and

member of the Moosic Borough Planning Commission;

THOMAS HARRISON; Individually and in his official

capacity as Moosic Borough Manager; BRYAN FAUVER,

Individually and in his official capacity as Chairman of

Moosic Borough Planning Commission; JAMES DURKIN,

Individually and in his official capacity as Moosic Borough

Zoning and Enforcement Officer; JOHN J. BRAZIL;

WILLARD HUGHES

Joseph Mercatili,

Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-10-cv-02604)

District Judge: Hon. Matthew W. Brann

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Argued

July 12, 2016

Before: SMITH, JORDAN, and RENDELL, Circuit

Judges.

(Filed: October 24, 2016)

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Joshua M. Autry [ARGUED]

Laverty Faherty Patterson

225 Market Street – Ste. 304

P.O. Box 1245

Harrisburg, PA 17108

Counsel for Appellants

Bruce L. Coyer

Joseph T. Healey [ARGUED]

O’Malley Harris Durkin & Perry

345 Wyoming Avenue

Scranton, PA 18503

Counsel for Appellees



Honorable D. Brooks Smith, United States Circuit Judge for

the Third Circuit, assumed Chief Judge status on October 1,

2016

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

This case is an appeal from an interlocutory decision

denying defendant Joseph Mercatili’s claim to qualified

immunity. Dr. Edward Zaloga, who had been engaged in an

ongoing feud with local government officials, publicly

opposed Mercatili’s reelection as the President of the Moosic,

Pennsylvania Borough Council. Mercatili allegedly retaliated

against Zaloga by seeking to damage his business interests.

Zaloga brought this § 1983 suit against several county

entities and individuals, alleging various constitutional

violations, including Mercatili’s retaliation. The United

States District Court for the Middle District of Pennsylvania

granted the defendants’ motion for summary judgment with

respect to all defendants except Mercatili. The Court decided

that Mercatili’s claim to qualified immunity depended on

disputed facts and would have to be resolved by a jury.

Mercatili now appeals, arguing that he is entitled to

qualified immunity because his conduct, even if Zaloga’s

allegations are true, did not violate clearly established law.

We agree and will reverse and remand for the District Court

to grant summary judgment in Mercatili’s favor.

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I. BACKGROUND

A. Factual Background 1

The Plaintiffs in this case are Dr. Edward Zaloga and

Correctional Care, Inc., a medical company he owns and “that

provides contracted services to correctional facilities.” 2

(Zaloga v. Borough of Moosic, M.D. Pa. CA No. 10-2604-

MWB Docket Item (“D.I.”) 156, at 2 ¶ 3.) Zaloga resides in

the Borough of Moosic in Lackawanna County, Pennsylvania.

At all relevant times, Lackawanna County, through the

oversight of the Lackawanna County Prison Board, has

contracted with Correctional Care to provide medical services

to the Lackawanna County Prison.

Although the Plaintiffs initially sued the Borough of

Moosic, the Borough Council, the Borough’s planning

commission and zoning board, and various Borough officers,

the only remaining defendant is Mercatili. The legal friction

between Zaloga and the Borough originated in disputes

between the Zaloga family and a tire company that occupied a

facility immediately adjacent to the Zalogas’ home.

Frustrated by the Borough’s handling of those disputes,

1

For purposes of summary judgment, we recount the

facts as alleged by the plaintiffs, accepting them as true and

drawing all factual inferences in their favor. Scheetz v. The

Morning Call, Inc., 946 F.2d 202, 205 (3d Cir. 1991).

2

Zaloga is the sole shareholder of Correctional Care.

Although Zaloga’s wife, Jeanne, continues to be listed as a

plaintiff in the caption of this case, the District Court’s

June 16, 2015 order dismissed her as a party and no one has

contested that decision.

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Zaloga launched political attacks on Mercatili and John

Segilia – the then-mayor of the Borough (now deceased) –

publically opposing their nominations for reelection to public

office.

About a month later, the Lackawanna County Solicitor

notified Zaloga that the County intended not to continue its

contractual arrangement with Correctional Care upon

expiration of the contract’s term. The Solicitor also said,

however, that Correctional Care could compete with other

health care providers in bidding for a new contract. It indeed

did so, but Zaloga’s attorney informed him that, according to

conversations with a Lackawanna County Prison Board

member, Segilia and Mercatili were attempting “to block

[Correctional Care’s] contract renewal.” (A169a ¶ 29.)

Shortly thereafter, a Prison Board member told Zaloga that

“both Segilia and [Mercatili] were upset with [Zaloga’s]

persistent opposition to their decisions regarding the … [t]ire

facility and [Zaloga’s] challenge to their nominating petitions,

and that Segilia and [Mercatili] wanted the Prison Board

member to oppose [Correctional Care’s] upcoming contract

renewal.” (D.I. 156, at 32-33 ¶¶ 102-03.) Later, a “second

Prison Board member informed [Zaloga] that Segilia and

[Mercatili] contacted him and demanded that he also vote

against the renewal of [Correctional Care’s] contract … in

exchange for their support for his [i.e., the Board member’s]

political campaign.” (D.I. 156, at 33 ¶ 104.) Sometime

between April and November 2009, Segilia and Mercatili also

approached John Szymanski – the Lackawanna County

Sheriff and a Prison Board member – and told him that “they

would support [his] campaign for re-election only if [he]

would oppose Dr. Zaloga’s company’s contract renewal.”

(A179a ¶ 5 (emphasis in original).)

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The record contains several additional instances of

Segilia and Mercatili purportedly applying political pressure

on Prison Board members. The District Attorney for

Lackawanna County, also a Prison Board member, averred

that, when discussing Correctional Care’s contract renewal

with Segilia in 2009, Segila “indicated that he [had] a

problem with Dr. Zaloga … because of his ongoing legal

battle in Moosic and because [Zaloga] ‘…attempted to have

[Segilia and Mercatili] thrown off the ballot.’” (A175a ¶ 6.)

According to the District Attorney, “just prior to Correctional

Care’s medical contract renewal,” another Prison Board

member told him that Segilia and Mercatili were angry at him

for “considering a vote in favor of renewing Correctional

Care’s contract with the Lackawanna County Prison.”

(A175a ¶ 7.) The Board member went on to express his

personal concern that Segilia and Mercatili “would either not

support him or even work against him in his re-election bid.”

(A175a ¶ 7.) The District Attorney himself did not speak

with Mercatili until after the County had already renewed its

contract with Correctional Care.

Ultimately, the County unanimously voted to award

Correctional Care a three-year contract renewal, and the

contract was renewed again in 2012.

B. Procedural Background

The Plaintiffs filed their first complaint in 2010, and

subsequently amended it three times. Count I of the Third

Amended Complaint alleges that the Defendants retaliated in

response to Zaloga’s exercise of his First Amendment rights.

Count II says that the Defendants violated the Plaintiffs’

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substantive due process and Fourteenth Amendment rights by

interfering with the Plaintiffs’ reputational, constitutional, and

property rights. Finally, Counts III and IV allege that the

Defendants conspired against the Plaintiffs in violation of

both 42 U.S.C. § 1983 and state common law.

After completion of discovery, the Defendants moved

for summary judgment. The District Court granted summary

judgment on all counts against all Defendants, except for

Counts I, III, and IV against Mercatili. As to Mercatili, the

Court concluded that his assertion of qualified immunity

hinged upon fact questions that would need to be settled by a

jury.

Mercatili appealed.

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IV. DISCUSSION 3

Qualified immunity shields government actors from

suit “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). In Saucier v. Katz, the Supreme

Court divided the analysis of qualified immunity into two

parts: First, a court considering qualified immunity must ask

whether the alleged facts, taken in the light most favorable to

the injured party, “show [that] the [government official]’s

conduct violated a constitutional right”; second, the court

3

The District Court had jurisdiction under 28 U.S.C.

§§ 1331 and 1343. “[A] district court’s denial of a claim of

qualified immunity, to the extent that it turns on an issue of

law, is an appealable ‘final decision’ within the meaning of

28 U.S.C. § 1291 … .” Mitchell v. Forsyth, 472 U.S. 511,

530 (1985). The qualified immunity question implicated in

this case – namely, whether the law allegedly violated was

“clearly established” at the time of the defendant’s actions –

is the type of legal issue immediately appealable as a final

decision. In re Montgomery Cty., 215 F.3d 367, 373-74 (3d

Cir. 2000). Thus, we have appellate jurisdiction to consider

that question at this stage of the proceedings. Our review of a

district court’s grant or denial of summary judgment is

plenary. Heffner v. Murphy, 745 F.3d 56, 65 (3d Cir. 2014).

“To prevail on a motion for summary judgment, the moving

party must demonstrate ‘that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a

matter of law.’” Interstate Outdoor Adver., L.P. v. Zoning

Bd. of Twp. of Mount Laurel, 706 F.3d 527, 530 (3d Cir.

2013) (quoting FED R. CIV. P. 56(a)).

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must ask whether the right was clearly established “in light of

the specific context of the case, [and] not as a broad general

proposition.” 533 U.S. 194, 201 (2001). Notwithstanding the

sequence of the Saucier questions, federal courts are

“permitted to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the

particular case at hand.” Pearson v. Callahan, 555 U.S. 223,

236 (2009). Summary judgment based on qualified immunity

should be granted when “the law did not put the officer on

notice that his conduct would be clearly unlawful.” Saucier,

533 U.S. at 202.

Here, the District Court erred in its consideration of

the second prong of the qualified immunity analysis. We

therefore do not need to decide whether Mercatili’s actions

could have violated Zaloga’s constitutional rights, and we

decline to do so. Discussing the constitutionality of

Mercatili’s actions would require us to grapple with the

tension between his First Amendment right to speak and

Zaloga’s right to be free of government retaliation. Because

the law does not clearly address how to harmonize those

competing interests, the second Saucier prong is not met and

any analysis addressing the first prong would “be an

essentially academic exercise.” Pearson, 555 U.S. at 237.

The doctrine of constitutional avoidance counsels against

unnecessarily wading into such muddy terrain. Cf. id. at 241

(justifying resolving a dispute solely on the basis of the

second prong due to “older, wiser judicial counsel not to pass

on questions of constitutionality ... unless such adjudication is

unavoidable[]” (internal quotation marks omitted)). We thus

move directly to an explanation of our conclusion with

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respect to the second prong of the qualified immunity

analysis.

A. The “Clearly Established” Standard

The standard for qualified immunity is tilted in favor

of shielding government actors and “gives ample room for

mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law.”

Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal

quotation marks omitted). To defeat qualified immunity, the

right purportedly violated must be so clearly established that

every reasonable official would have

understood that what he is doing violates that

right. In other words, existing precedent must

have placed the statutory or constitutional

question beyond debate. This “clearly

established” standard … ensur[es] that officials

can reasonably … anticipate when their conduct

may give rise to liability for damages.

Reichle v. Howards, __ U.S. __, 132 S. Ct. 2088, 2093 (2012)

(emphasis added) (internal quotation marks, citations, and

brackets omitted); see also Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (explaining that, for the contours of a right to be

clearly established, “[w]e do not require a case directly on

point, but existing precedent must have placed the statutory or

constitutional question beyond debate”).

Given that exacting standard, it is not surprising that

some degree of specificity in the law is required before a right

is said to be “clearly established.” The Supreme Court has

repeatedly stressed that, for purposes of determining whether

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a right is so well settled as to defeat qualified immunity, it

“must be established not as a broad general proposition, but in

a particularized sense so that the contours of the right are

clear to a reasonable official[.]” Reichle, 132 S. Ct. at 2094

(internal quotation marks and citations omitted). Thus, in

Reichle v. Howards, the Supreme Court rejected the

plaintiff’s argument that a right was clearly established

merely because that Court’s precedent “settled the rule that,

as a general matter, the First Amendment prohibits

government officials from subjecting an individual to

retaliatory actions for his speech.” Id. at 2093-94 (internal

quotation marks omitted). The Court explained that, in the

fact scenario it faced, “the right in question is not the general

right to be free from retaliation for one’s speech, but the

more specific right to be free from a retaliatory arrest that is

otherwise supported by probable cause.” Id. at 2094

(emphasis added). We thus understand that the right should

be framed in terms specific enough to put “every reasonable

official” on notice of it, and the more specific the precedent,

the more likely it is that a right will meet that threshold.

Especially in light of Reichle, it is not sufficient to

conclude, as the District Court did in this case, that the second

Saucier prong is satisfied because there is a well-known

“right against government retaliation for exercising one[’]s

right to [free] speech … .” (A34a.) That put the question of

whether the “clearly established” standard had been met at

much too high a level of abstraction. Instead, we must attend

to context; we need to “consider the state of the existing law

at the time of the alleged violation and the circumstances

confronting [Mercatili] to determine whether a reasonable

state actor could have believed his conduct was lawful.”

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Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.

2010).

B. Applying Precedent

Our opinion in McLaughlin v. Watson, 271 F.3d 566

(3d Cir. 2001) – which is the most analogous precedent with

respect to Mercatili’s alleged actions – effectively precludes

Zaloga and Correctional Care from arguing that Mercatili’s

actions violated clearly established law. The plaintiffs in

McLaughlin were agents of the Pennsylvania Attorney

General’s office who alleged (among other things) that the

United States Attorney for the Eastern District of

Pennsylvania had “acted administratively to influence the

Pennsylvania Attorney General to take adverse employment-

related action against them.” Id. at 572. Assuming arguendo

that those allegations could constitute a First Amendment

retaliation claim, id. at 572-73, we nevertheless concluded

that they did not establish the violation of a clearly

established right, explaining our reasoning, in part, as

follows:

When a public official is sued for allegedly

causing a third party to take some type of

adverse action against plaintiff’s speech, we

have held that defendant’s conduct must be of a

particularly virulent character. It is not enough

that defendant speaks critically of plaintiff or

even that defendant directly urges or influences

the third party to take adverse action. Rather,

defendant must “threaten” or “coerce” the

third party to act.

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Id. at 573 (emphasis added). We ordered dismissal of the

case on the basis of qualified immunity. Id. at 574.

McLaughlin thus suggests that a government official like

Mercatili would not necessarily understand that mere political

pushback could be unlawful.

In that same vein, we cited in McLaughlin, with

approval, a decision of the United States Court of Appeals for

the Fourth Circuit recognizing that, when a public official’s

allegedly retaliatory acts “are in the form of speech,” the

official’s “own First Amendment speech rights are

implicated.” Id. at 573 (quoting Suarez Corp. Indus. v.

McGraw, 202 F.3d 676, 687 (4th Cir. 2000)). Mercatili’s

First Amendment speech rights are likewise implicated here,

and our cases do not provide government officials with clear

guidance as to when a government official’s own speech can

nevertheless constitute unconstitutional retaliation.

Also important to our analysis in McLaughlin was our

prior decision in R.C. Maxwell Co. v. Borough of New Hope,

735 F.2d 85 (3d Cir. 1984). In that case, the defendant

borough council wrote to a third party, Citibank, urging it to

remove certain commercial billboards and threatening to

litigate if the billboards were not removed. Id. at 86-87.

Citibank acquiesced, admitting that it was motivated, in part,

by a desire to stay in the borough’s “good graces.” Id. at 87.

Afterwards, the plaintiff, who had leased billboard space from

Citibank, sued the borough for violating the First Amendment

right to free expression. We concluded that the borough’s

actions did not “coerce” the third party sufficiently to be a

trigger of any constitutional violation. Id. at 89. In

McLaughlin, we read the holding of R.C. Maxwell to mean

that “strongly urging or influencing, but not ‘coercing[,]’ a

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third party to take adverse action affecting a plaintiff’s speech

did not violate plaintiff’s constitutional rights.” 271 F.3d at

573. We did not elaborate on that distinction, nor did we

provide specific examples of behavior that would cross the

line from permissible influence to constitutionally

impermissible coercion.

The present case, though, does not appear to involve

coercion. Unlike the defendant’s threats in R.C. Maxwell,

Mercatili’s efforts to pressure members of the Prison Board

were not even coercive enough to achieve their desired effect.

By Zaloga’s own admission, none of the Board members

complied with Mercatili’s wishes by voting against renewal

of the Borough’s contract with Correctional Care. Cf. Zherka

v. Amicone, 634 F.3d 642, 646 (2d Cir. 2011) (observing that

in retaliation cases involving “speech against speech” there

should be a “threshold of measurable harm required to move

government response to public complaint from the forum of

free speech into federal court”). Thus, even if we were to

characterize Mercatili’s alleged statements to Prison Board

members as a “threat” to withdraw political support, there is

ample room to debate whether a reasonable official would

have known that such threats, without any evident coercive

power, were constitutionally out of bounds.4

4

There may of course be circumstances in which

political threats carry a potential for coercion that is plain or

can at least be fairly anticipated. That may present a different

case. But on this record, even viewed in the light most

favorable to the Plaintiffs, it can only be said that Mercatili

hoped his political horse-trading would get what he wanted,

not that he had the power to force anything.

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Finally, it has never been established that a

governmental official who does not himself retaliate but

instead pressures another individual to retaliate – which is the

position Mercatili is in – can be held personally liable. At

least one of our sister circuits has held that there is no liability

in such circumstances, see Beattie v. Madison Cty. Sch. Dist.,

254 F.3d 595, 601 (5th Cir. 2001) (observing that government

officials “cannot be liable independently if they did not make

the final decision”), and another has noted that this remains

an unsettled question of law, see Trant v. Oklahoma, 754 F.3d

1158, 1170 n.5 (10th Cir. 2014) (observing that the Fifth

Circuit has held that “only final decisionmakers may be

liable” and noting that this is an unsettled question in the

Tenth Circuit).

We conclude that legal precedent leaves space for

good faith disagreement about the constitutionality of

Mercatli’s alleged actions. Under the high standard for

“clearly established” law, that is enough to defeat the

Plaintiffs’ challenge to qualified immunity.

V. CONCLUSION

For the foregoing reasons, we will reverse the District

Court’s order denying Mercatili’s motion for summary

judgment on the basis of qualified immunity and remand with

instructions to enter judgment in his favor.

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