Myers v. County of Somerset ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-24-2008
Myers v. Somerset
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3014
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"Myers v. Somerset" (2008). 2008 Decisions. Paper 494.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3014
. ____________
RICHARD A. MYERS,
Appellant
vs.
COUNTY OF SOMERSET; WAYNE J. FORREST;
RONALD E. THORNBERG; NORMAN CULLEN; NICHOLAS MAGOS;
ANDREW HISSIM; DANIEL LIVAK; STEPHEN BURKE
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civ. No. 04-cv-06362)
District Judge: Honorable Mary L. Cooper
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 12, 2008
Before: McKEE, SMITH and WEIS, Circuit Judges.
Filed: September 24, 2008
____________
OPINION
WEIS, Circuit Judge.
Plaintiff Richard Myers appeals the District Court’s order granting
summary judgment on his 42 U.S.C. § 1983 claims in favor of defendants. The dispute
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arises from a series of events that ultimately resulted in Myers being terminated from his
position as detective sergeant with the Somerset County Prosecutor’s Office.1 We will
affirm.
Myers filed a complaint in the District Court asserting four § 1983 claims,
as well as a statutory state-law count. The District Court found in favor of defendants in
the federal claims and dismissed the state-law count without prejudice. Myers contends
that the District Court erred in (I) failing to properly analyze his claims of retaliation for
engaging in speech protected by the First and Fourteenth Amendments, (ii) finding that he
was not unlawfully searched or seized in violation of the Fourth and Fourteenth
Amendments, and (iii) determining that he was not denied due process in contravention of
the Fourteenth Amendment.
I.
Myers’s first contention is that the District Court erred when it determined
that he did not suffer retaliation for engaging in constitutionally protected speech. A
valid retaliation claim requires a plaintiff to demonstrate “(1) that the activity in question
is protected by the First Amendment, and (2) that the protected activity was a substantial
factor in the alleged retaliatory action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241
(3d Cir. 2006).
1
Myers and each of the individual defendants are either current or former
employees of the Somerset County Prosecutor’s Office.
2
In his brief, Myers alleges that in two instances the speech that allegedly
caused him to suffer retaliation was constitutionally-protected. The first instance
occurred when Myers protested that a homicide suspect Myers was ordered to investigate
could not have committed the crime. The second event occurred when Myers told the
Somerset County prosecutor, defendant Wayne J. Forrest, and Green Brook Chief of
Police Martin Rasmussen that the chiefs of certain police departments within Somerset
County were “being hypocritical” for supporting Forrest in his search for renomination.
A public employee’s speech is constitutionally-protected when (1) “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.” Id. at 241-42 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418
(2006)).
Myers’s statements concerning the homicide investigation do not qualify as
protected because they occurred pursuant to his official duties. See id. at 242 (statements
made pursuant to a public employee’s official duties are not made “as a citizen”). The
Supreme Court has commented that the inquiry into whether a government employee’s
speech occurred pursuant to employment duties is “a practical one.” Garcetti, 547 U.S. at
424. Myers’s comments about the homicide investigation were made to Forrest, the
principal of the Prosecutor’s Office, Captain Racz, an employee of the Prosecutor’s
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Office who Myers described as “my captain,” (App. 1205), and Detective Hall, an
employee of the Bernards Township Police Department with whom Myers “took the lead”
in investigating the crime. (App. 1204). Viewing Myers’s comments practically we
conclude that, because each statement was made to either someone within the chain-of-
command or the co-lead investigator, Myers spoke pursuant to his employment duties.
Consequently, the comments are afforded no constitutional protection and cannot form
the basis of a valid retaliation claim.
Myers’s assertions about the hypocrisy of the police chiefs for supporting
defendant Forrest also are not constitutionally-protected expressions. The statements fail
to meet the third requirement of the protected-speech standard.
The District Court observed that Myers’s statements “undermine[d] the
authority of the Prosecutor and encourage[d] a breakdown of the working relationship
between the county chiefs and the . . . Prosecutor.” Myers v. County of Somerset, 515 F.
Supp. 2d 492, 503 (D.N.J. 2007). We agree. Myers’s statements, therefore, were not
constitutionally-protected speech as a matter of law. See Hill, 455 F.3d at 241 (the
inquiry into whether a government employee’s speech is a protected activity is a question
of law).
Since we conclude Myers did not engage in constitutionally-protected
activity, his retaliation claim fails.
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II.
For a portion of the time that Myers was employed he was assigned to
cramped quarters. Myers contends that the assignment constituted an unconstitutional
seizure. Myers has not shown, however, that he was restrained in any manner.
Consequently, he has not demonstrated a constitutionally-impermissible seizure.
Myers also argues that he was subjected to unlawful searches when
employees of the Prosecutor’s Office (I) looked through the back windows of the county-
owned vehicle he was provided in order to determine whether he was keeping children’s
car-seats in the vehicle while on-duty, (ii) searched his work files, and (iii) went to his
house and his neighbor’s house looking for him. The District Court determined that none
of these events were “searches” for Fourth Amendment purposes. Myers does not
provide us with any authority that calls the District Court’s conclusion into question. We
hold that defendants did not subject Myers to an unconstitutional search.
III.
Myers final allegation is that he was denied due process. He argues that he
has asserted a valid due process claim under several theories.
First, Myers contends that he was subjected to arbitrary or irrational
government action when he was harassed for engaging in conduct protected by the First
Amendment. This allegation is merely a reiteration of Myers’s first claim. We reject it
because he did not engage in any protected speech.
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Next, Myers argues that the circumstances of his termination give rise to a
due process claim for deprivation of a liberty interest he has in his reputation. This Court
recognizes due process claims for damage to a plaintiff’s reputation if the plaintiff can
show that a government employer “create[d] and disseminate[d] a false and defamatory
impression about the employee in connection with his termination.” Id. at 236 (quoting
Codd v. Velger, 429 U.S. 624, 628 (1977)). Myers alleges that he was defamed when
defendants publicly leveled false allegations of wrongdoing against him in the process of
his termination.
The District Court analyzed Myers’s claim and concluded that he failed to
demonstrate that defendants publicly disseminated false or defamatory information. In
his brief, Myers attempts to refute the District Court’s conclusion by simply stating that
he has “asserted specific facts as to the damage to his reputation” in public without
identifying any evidence in the record that supports his allegation. Consequently, we
agree with the District Court that Myers has not set forth any evidence that supports his
claim that he was denied due process because of damage to his reputation accompanying
his termination from employment in the Prosecutor’s Office.
Finally, Myers contends that defendants exhibited deliberate indifference to
his constitutional rights. Myers has not, however, adduced facts that could demonstrate
that defendants violated his constitutional rights. Without that showing, we cannot find
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deliberate indifference to Myers’s constitutional rights.2
IV.
In sum, we conclude that Myers has not adduced evidence that would
support a viable § 1983 claim. We will therefore affirm the order of the District Court
granting summary judgment to defendants on these claims and dismissing Myers’s state-
law claim without prejudice.
2
In a footnote in his brief, Myers asserts that he was deprived of other
property and liberty interests without due process. Specifically, he alleges that he
suffered deprivation of his pension, pay, and a job opportunity, as well as emotional
distress because of the actions of defendants. The District Court analyzed Myers’s claims
and determined that none of the alleged deprivations implicate a constitutionally-
protected property or liberty interest. We agree.
Myers also asserts, without citing to authority, that the Fourteenth
Amendment protects him from being deprived of police powers without due process. We
find that any “police power” Myers was allegedly entitled to does not amount to a liberty
or property interest the Fourteenth Amendment protects.
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