Robbie Pollock v. City of Philadelphia , 403 F. App'x 664 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-2041
_____________
ROBBIE B. POLLOCK,
Appellant
v.
THE CITY OF PHILADELPHIA;
TYRONE COOK; JAMES CLARK;
SYLVESTER JOHNSON, IN THEIR
INIDIVIDUAL CAPACITIES
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 06-cv-4089)
District Judge: Hon. Thomas J. Rueter
_______________
Submitted Under Third Circuit LAR 34.1(a)
December 13, 2010
Before: RENDELL, JORDAN and HARDIMAN, Circuit Judges.
(Filed: December 14, 2010)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Robbie B. Pollock appeals from an order of the United States District Court for the
Eastern District of Pennsylvania granting summary judgment for Appellees James Clark
and Sylvester Johnson on Pollock‟s First and Fourth Amendment claims. Pollock also
appeals from the District Court‟s oral rulings of February 23, 2007, and May 17, 2007,
setting forth procedures for deposing Johnson. For the following reasons, we will affirm.
I. Background1
This case arises out of Pollock‟s employment with the City of Philadelphia Police
Department (the “PPD”) and his response to the treatment he received during the course
of that employment. From 1999 to 2004, Pollock, an African-American male, worked as
a custodian in the PPD‟s Northwest Detective Division. In early 2004, Sergeant Tyrone
Cook, who is also African-American, became Pollock‟s supervisor. Cook repeatedly
mistreated Pollock. In particular, Cook would curse at Pollock, alter Pollock‟s timecard
and report him absent, call Pollock names and refer to him in racially derogatory terms,
and deliberately create messes in areas that Pollock had just cleaned so that Pollock
would have to re-clean the area.
On July 30, 2004, Cook‟s antagonism caused Pollock to suffer a stress-related
illness, resulting in his hospitalization. Pollock was prescribed medication for the stress,
but Cook told him that he would be disciplined for drug use in the workplace if he took it
while at work. Pollock complained to Cook‟s supervisor, Lieutenant James Clark, about
Cook‟s behavior, and Clark replied that he would help Pollock. PPD personnel had
observed Pollock get stressed out and agitated from his interactions with Cook, and Clark
acknowledged that he needed to resolve the situation before Pollock “snap[ped]”. (App.
1
Because we are reviewing a grant of summary judgment, we recount the
background information here in the light most favorable to the non-movant, Pollock.
2
at 118.) It is unclear whether Clark spoke with Cook, but, in any event, Cook‟s treatment
of Pollock seemed to worsen.
On September 15 and 16, 2004, Pollock took two days of leave to deal with his
job-related stress. On September 17, 2004, Pollock concluded that he “couldn‟t take it
anymore” and called the Northwest Detective Division. Pollock eventually spoke to
Clark, telling him: “You tried to pull [Cook] off of me. You tried to stop him, but it
didn‟t work. Tell him I‟m coming to see him.”2 (App. at 130-31.)
When the call ended, Clark discussed Pollock‟s call with Cook and Captain
Kirkland. The officers laughed a bit about the call but decided that Pollock might pose a
threat to Cook and, fearing a “bad scene,” ordered the building secured. (App. at 500.)
Having been told by Clark about Pollock‟s call, Detectives Betancourt, Swinton, and
Grace agreed to engage Pollock in an attempt to de-escalate the situation.
Betancourt called Pollock and agreed to meet him in a parking lot across the street
from the police building. The detectives and Clark then went to the parking lot, where
they found Pollock unarmed, non-threatening, and lethargic from having taken a large
quantity of Valium. Pollock said he wanted to see Cook, but the detectives persuaded
Pollock to walk to a nearby fire station, and an ambulance took Pollock to the hospital,
where he was treated for a drug overdose.
2
The police investigation report regarding that conversation recounts it somewhat
differently. According to that report, Pollock told Clark, “Lieutenant I always liked you,
and you always treated me with respect but Cook‟s got to go, I just tried to kill my wife
and I just took a bunch of Pills/Valiums to kill my self [sic] but before I go I am coming
to get Cook, I‟ll see you in twenty minutes.” (App. at 373.)
3
Meanwhile, seeing that Pollock‟s car was parked illegally, Grace moved Pollock‟s
car to the police lot. Once there, Grace conducted an inventory search of Pollock‟s car
and found in the trunk a plastic bag with green leaves. While he initially suspected it to
be marijuana, later testing confirmed that the substance was green tea.
Clark and other police officers spoke with the District Attorney‟s Office about the
incident. The District Attorney‟s Office approved charges against Pollock for making
terroristic threats. Accordingly, later that day, Pollock was transported back to the station
and arrested for making terroristic threats against Cook in violation of 18 PA. CONS.
STAT. ANN. § 2706.3 Police Commissioner Sylvester Johnson subsequently
recommended that Pollock be dismissed.
On September 21, 2004, an officer from the PPD‟s Internal Affairs Division met
with Pollock to give him notice of a 30-day suspension with intent to terminate his
employment. The notice stated that Pollock was accused of making terroristic threats and
that marijuana was found in the trunk of his car. On October 20, 2004, the PPD
dismissed Pollock.4
Pollock was tried twice on the terroristic threat charge. In the first trial, he was
found guilty. Pollock successfully appealed that verdict and, in the second trial, was
acquitted.
3
In documenting the incident, the PPD generated reports that conflicted on
whether Pollock was secured for his own safety or for general safety reasons.
4
The notice of dismissal again stated that marijuana had been seized from
Pollock‟s vehicle, even though the lab results had, at that point, revealed otherwise.
4
In September 2006, Pollock sued the City of Philadelphia, Johnson, Cook, and
Clark under 42 U.S.C. §§ 1981 and 1983, alleging violations of his First, Fourth, and
Fourteenth Amendment rights. During the course of the litigation, Pollock sought to
depose Johnson, but Johnson resisted, citing his busy schedule.5 The District Court
determined that Pollock could submit written questions to Johnson under Rule 31 of the
Federal Rules of Civil Procedure and stated that Pollock could request an oral deposition
if Johnson‟s written testimony was insufficient. On June 10, 2007, Johnson submitted
answers to Pollock‟s questions.
When the defendants moved for summary judgment, Pollock of course opposed it
and, at the same time, renewed his request to depose Johnson. The District Court denied
summary judgment to Cook on Pollock‟s Fourteenth Amendment claim but otherwise
granted the defendants‟ motion. The District Court also denied Pollock‟s renewed
request to depose Johnson, reasoning that it was untimely made. After a jury found in
favor of Cook on the Fourteenth Amendment claim, the District Court entered final
judgment against Pollock on March 10, 2010. This appeal followed.
II. Discussion6
Pollock appeals the grant of summary judgment as to his First Amendment
retaliation claims against Clark and Johnson and his Fourth Amendment claim against
5
Pollock had, at that point, already taken ten depositions and was seeking leave to
take twelve more.
6
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
5
Clark. He also appeals the denials of his requests to depose Johnson. We address each of
those points in turn.7
A. First Amendment Retaliation Claims Against Clark and Johnson
To establish a First Amendment claim for unlawful retaliation, a plaintiff must
show that the conduct that led to the alleged retaliation was constitutionally protected, the
plaintiff was subjected to adverse actions by a state actor, and the protected activity was a
substantial motivating factor in the state actor‟s decision to take the adverse action. See
Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997).
7
With respect to the District Court‟s grant of summary judgment, our review is de
novo, and “we apply the same standard as the District Court in determining whether
summary judgment was appropriate.” Dique v. N.J. State Police, 603 F.3d 181, 185 (3d
Cir. 2010) (citations omitted). Summary judgment can properly be granted when “the
pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact.” FED. R. CIV. P. 56(c)(2). A factual
dispute is “genuine,” and thus warrants trial, “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party … . The mere existence of a scintilla
of evidence in support of the plaintiff‟s position will be insufficient; there must be
[significantly probative] evidence on which the jury could reasonably find for the
plaintiff.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 252 (1986); Williams v.
Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (“[A] non-moving party …
cannot simply reassert factually unsupported allegations contained in its pleadings.”).
We assume that the non-moving party‟s allegations are true and give the non-moving
party the benefit of the doubt when those allegations conflict with the moving party‟s
claims. Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir. 1995). However,
summary judgment must be entered against any party unable to present sufficient
evidence in support of an essential element of a claim because “a complete failure of
proof concerning an essential element of the nonmoving party‟s case necessarily renders
all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
With respect to the District Court‟s denial of Pollock‟s deposition request, we
review for abuse of discretion. See Country Floors, Inc. v. P’ship Composed of Gepner
& Ford, 930 F.2d 1056, 1062 (3d Cir. 1991).
6
Pollock‟s claims fail because he cannot establish the third element, namely, that
his racial discrimination complaint motivated either Clark or Johnson to take any adverse
action.8 To prove that a protected activity motivated an adverse action, a plaintiff must,
as a threshold matter, prove that the adverse actor knew of the protected activity.
Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002). If the plaintiff can
prove that, then the plaintiff must prove a causal link between the adverse action and the
protected activity, usually by showing 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.” Lauren W. v.
Deflaminis, 480 F.3d 259, 267 (3d Cir. 2007). A causal link may also be shown by
demonstrating that the record as a whole supports such an inference. Id.Here, the record contains no evidence of a causal link between Pollock‟s
complaint and any adverse action by Clark or Johnson. First, the record indicates that
approximately six weeks elapsed between Pollock‟s complaint and the first alleged
retaliatory action. We agree with the District Court that the timing here does not indicate
a causal link. Cf. Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003)
(holding that a three-week period between the time of a harassment complaint and
dismissal was not “unusually suggestive temporal proximity”). Second, there is no
evidence that Clark or Johnson was ever antagonistic towards Pollock; in fact, Pollock‟s
own testimony indicates that Clark had a positive relationship with Pollock and had tried
8
Because Pollock‟s First Amendment claims fail on that third element, we need
not opine on the merits of his arguments as to the first two elements.
7
to help him. Finally, although the record shows that there were inconsistencies in the
investigation leading to Pollock‟s termination, there is no evidence that Clark or Johnson
was responsible for those inconsistencies or that the termination was motivated by a
desire to retaliate against Pollock for his complaint. In fact, the record contains no
evidence that Johnson even knew of Pollock‟s complaint. Accordingly, it was proper for
the District Court to grant summary judgment for Clark and Johnson on the First
Amendment retaliation claims.
B. Qualified Immunity on Fourth Amendment Claim Against Clark
To establish a Fourth Amendment claim for false arrest, Pollock must show that
Clark lacked probable cause to arrest him. Dowling v. City of Philadelphia, 855 F.2d
136, 141 (3d Cir. 1988). “Probable cause exists whenever reasonably trustworthy
information or circumstances within a police officer‟s knowledge are sufficient to
warrant a person of reasonable caution to conclude that an offense has been committed by
the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002).
“The validity of an arrest is determined by the law of the state where the arrest occurred.”
Id.The Pennsylvania terroristic threats statute provides:
A person commits the crime of terroristic threats if the person
communicates, either directly or indirectly, a threat to:
(1) commit any crime of violence with intent to terrorize another;
(2) cause evacuation of a building, place of assembly or facility of
public transportation; or
8
(3) otherwise cause serious public inconvenience, or cause terror or
serious public inconvenience with reckless disregard of the risk of
causing such terror or inconvenience.
18 PA. CONS. STAT. ANN. § 2706(a). In determining whether a communication
constitutes a terroristic threat, “[w]e need not look at the [allegedly threatening] statement
in a vacuum. Rather, we will consider the statement in light of the surrounding
circumstances.” Commonwealth v. Griffin, 456 A.2d 171, 174 (Pa. Super. Ct. 1983). A
person may violate § 2706 even if he fails to articulate exactly what violent or
inconvenience-causing act he intends to commit and even if he cannot actually carry it
out. Commonwealth v. Sinnott, 976 A.2d 1184, 1188 (Pa. Super. Ct. 2009).
Additionally, the defendant need not communicate directly with the alleged victim, and
the alleged victim need not believe that the defendant will actually carry out the
threatened action. Id.The question of probable cause in this case is a close one, but we need not resolve
it because, even if probable cause were lacking, Clark is entitled to qualified immunity in
connection with Pollock‟s arrest. We use a two-prong analysis to determine whether a
government official is entitled to qualified immunity. Pearson v. Callahan, 129 S.Ct.
808, 815, 818 (2009). First, we “decide whether the facts … shown … make out a
violation of a constitutional right.” Id. at 815-16 (citing Saucier v. Katz, 533 U.S. 194,
201 (2001)). Second, we “decide whether the right at issue was „clearly established‟ at
the time of defendant‟s alleged misconduct.” Id. at 816 (quoting Saucier, 533 U.S. at
201). “Qualified immunity is applicable unless the official‟s conduct violated a clearly
established constitutional right.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 640
9
(1987)). “The protection of qualified immunity applies regardless of whether the
government official‟s error is a mistake of law, a mistake of fact, or a mistake based on
mixed questions of law and fact.” Id. at 815 (internal quotation marks omitted).
Assuming arguendo that Clark violated Pollock‟s Fourth Amendment right by
having him arrested without probable cause, Clark is still entitled to qualified immunity
under the second prong of the qualified immunity analysis. At the time of the arrest,
Pennsylvania law provided that terroristic threats must be determined from context, and
the law was not so clearly established with respect to the context marking terroristic
threats that Clark should have known that Pollock‟s actions did not rise to the level of
violations under § 2706. Indeed, this is borne out by Clark‟s having sought and received
approval from the District Attorney‟s Office before arresting Pollock. We agree with the
District Court that “[t]he situation defendant Clark faced was sufficiently unusual, and
the warning signs presented [were] sufficiently serious, that a reasonable official would
not have understood that he was violating the law in arresting [Pollock].” Memorandum
in Support of Order Granting Summary Judgment at 40, Pollock v. City of Philadelphia,
No. 06-4089 (E.D. Pa. Aug. 7, 2008). Accordingly, we conclude that summary judgment
for Clark on the Fourth Amendment claim was proper.
C. The Requests to Depose Johnson
The conduct of discovery is “committed to the sound discretion of the district
court.” In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982). We defer to
the district court‟s management of discovery, absent either “the clearest showing that the
procedures have resulted in actual and substantial prejudice to the complaining litigant …
10
[or] a demonstration that the court‟s action made it impossible to obtain crucial
evidence.” Id. at 817-18 (internal quotation marks omitted).
Pollock cannot make such a showing here. The District Court‟s procedure with
respect to deposing Johnson afforded Pollock ample opportunity to obtain evidence from
Johnson, first in the form of written submissions and then, if necessary, in the form of an
oral deposition. It was not at all impossible under that procedure to obtain evidence from
Johnson, and any prejudice that might have occurred from ultimately being unable to
orally depose Johnson is of Pollock‟s own making, as he failed to renew his request until
after summary judgment briefing had commenced. On this record, the District Court was
within its discretion in its handling of Pollock‟s requests to depose Johnson.
III. Conclusion
For the foregoing reasons, we will affirm the District Court‟s grant of summary
judgment and the denial of Pollock‟s requests to depose Johnson.
11