Bradshaw v. Township of Middleton ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-29-2005
Bradshaw v. Middletown
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2933
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Bradshaw v. Middletown" (2005). 2005 Decisions. Paper 646.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/646
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2933
WAYNE BRADSHAW, ET AL.
Michael Rubino, Gerald Weimer,
Nina Rubino, Christine Weimer,
Appellants
v.
TOWNSHIP OF MIDDLETON, ET AL.
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 02-cv-05225)
District Judge: Honorable Hon. Mary Little Cooper
Submitted June 6, 2005
Before: FUENTES, VAN ANTWERPEN, and BECKER, Circuit Judges.
(Filed August 29, 2005)
OPINION OF THE COURT
FUENTES, Circuit Judge.
Plaintiffs Michael Rubino and Gerald Weimer (“the officers”) appeal from an
order of the District Court granting the defendants’ motion to dismiss made pursuant to
Fed. R. Civ. Pro. 12(b)(6). The case before us is the remnants of a confusing complaint
filed by six plaintiffs– four officers plus the wives of Weimer and Rubino– asserting
various causes of action against Defendants Township of Middletown (“Township”),
Township of Middletown Police Department (“Police Department”), Public Safety
Director Robert Czech (“Czech”), Police Chief John Pollinger (“Pollinger”), Police
Lieutenant Robert Morrell (“Morrell”), and others. Only the claims of Rubino and
Weimer are at issue before us. Rubino and Weimer contend that the District Court erred
in dismissing their allegations under 42 U.S.C. § 1983 that the defendants violated the
officer’s First Amendment rights and failed to train its employees.
We affirm substantially for the reasons expressed in the thorough and persuasive
opinion of the District Court. We add the following to underscore our own agreement
with that decision.
I. Facts and Procedural History
The facts and procedural history are complicated and adequately set forth in the
District Court opinion. Because we write only for the parties, we only recount the most
necessary of facts. The facts forming the basis of the appeal are related to two discrete
and disconnected events which the officers suggest are somehow linked.
The first incident, concerns primarily Rubino, and involves the officers’ activities
around September 11, 2001. On September 11, Rubino and other officers were directed
by Chief Pollinger to go to New York City on to assist with the rescue efforts. On
September 12, however, Pollinger declined to authorize Middletown police officers to
assist in New York City because he believed no assistance was needed from the
Middletown police. On September 13, Rubino informed Pollinger that assistance was
needed in New York City and that he wanted to go to New York to help. Pollinger
instructed Rubino that Middletown police officers were not to go to New York City, to
which Rubino replied that he would take a personal day off from work in order to go
assist. Pollinger initially said that he would not allow Rubino to use his personal day for
that purpose, but eventually relented when he realized Rubino was intent on going and
allowed a small group of officers, including Rubino and Weimer to go to New York City.
On September 13 , a police sergeant called Rubino at Ground Zero to inform him that
Pollinger was ordering all Middletown officers to return. Rubino protested to the
sergeant that all the officers were being utilized, and the sergeant passed along the
information to Pollinger. Pollinger did not change his mind and insisted that all the
Middletown officers leave. Rubino worked at Ground Zero until 4 AM on September
14.1 On September 14 th , Rubino was summoned to Pollinger’s office upon reporting to
1
Because the record does not indicate when the sergeant spoke to Rubino, we are
unable to determine whether Rubino disobeyed Pollinger’s order to return to Middletown
by staying at Ground Zero until 4 AM.
work. At that time, Pollinger stated no officers could assist even during their off-duty
time. Pollinger further ordered that no officer should wear a badge or any other item
identifying him as a Middletown police officer. At some point during this conversation,
Rubino commented that Morrell misrepresented the Middletown Police Department’s role
in the rescue efforts of September 11 and Pollinger became agitated.
Rubino alleges that he was retaliated in the following ways for his actions related
to September 11:
Effective September 28, 2001, with three days notice, Rubino was relieved
of his command and transferred to the Patrol Division as a shift
commander. Pollinger would not discuss the transfer with Rubino nor with
Rubino’s superior officer. Czech was quoted in a newspaper as stating that
Rubino had been reassigned because he had not complied with the
directives of a supervisor. As a result of this transfer, Rubino had to
purchase a car because he was no longer entitled to one from the Police
Department as was the case when he was a Detective Lieutenant.
In January 2002, a computer Rubino had ordered was missing and nearly
$800 was taken out of Rubino’s pay without notice or a hearing. Rubino
was charged with neglect of duty, but these charges were dismissed in
arbitration.
In Spring of 2002, Pollinger added an addendum to Rubino’s review
claiming that he was unprofessional and insubordinate without notifying
Rubino or his supervisor contrary to the rules.
At some unspecified date, Rubino requested to attend some training classes
and his requests were denied. He specifically noted that his request to
attend the Narcotics Officer Convention, which he attended every year since
1984, was denied.
The Police Department did not pay his dues for the National Narcotics
Association, in contravention of a fifteen year practice doing so.
Appellant Br. at 15-17.
The second incident, concerns primarily Weimer, and involves inappropriate
conduct on the part of Morrell. On or about April 20, 2002, Morrell sent a package
containing horse manure and a threatening note to the homes of Weimer and Rubino and
two other officers. Weimer went to Morrell’s residence to return the box and to
complain, but Morrell did not answer the door. It appears that Weimer left the box at
Morrell’s residence. Morrell contacted the police and accused Weimer of criminal
mischief while omitting that he himself had originally sent the package. For a time
period, Weimer was the subject of an Internal Affairs Investigation until Morrell admitted
to originally sending the package. Almost a month later, in May 2002, Morrell, in his
pick-up truck, followed Weimer through various Township streets for no apparent reason.
Weimer documented and reported this incident in a memo to Detective Lieutenant
Michael Cerame. Weimer and the other recipients eventually made a formal request for
an Internal Affairs Investigation. Shortly thereafter, Pollinger suggested that the Officers
seek counseling.
II. Jurisdiction and Standard of Review
We have jurisdiction pursuant to 28 U.S.C. § 1291 to hear this appeal. This Court
exercises plenary review over a District Court’s grant of a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Nami v. Fauver, 82 F.3d 63, 65. We
take all factual allegations and reasonable inferences as true and views them in the light
most favorable to the Plaintiff. Morse v. Lower Merion School District, 132 F.3d 902,
906 (3d Cir. 1997). Any questions of law presented by this appeal are reviewed de novo.
United States v. Hendricks, 395 F.3d 173, 176 (3d Cir. 2005).
III. Discussion
The officers allege violations of 42 U.S.C. § 1983 which provides a cause of
action against a person who, acting under color of state law, deprives another of a
constitutional or federal right. Gibson v. Superintendent of N.J. Dep’t of Law & Pub.
Safety-Division, 411 F.3d 427, 433 (3d. Cir. 2005) Thus, to state a claim under § 1983,
the officers must demonstrate “(1) of what constitutional or federal right [they were]
deprived, and (2) how [they were] deprived of that right under color of state law. Id.2
A. First Amendment
We first address the officers’ claim that their First Amendment rights were
violated because they experienced retaliation for engaging in protected speech. Rubino
claims he experienced retaliation for expressing concern over the Police Department’s
response to the attacks of September 11, 2001. Weimer claims he experienced retaliation
for expressing his concern over Morrell’s behavior. A public employee’s retaliation
2
At the outset, the District Court dismissed Morrell as a defendant because while
there were ample allegations of his misfeasance, the Amended Complaint does not allege
that Morrell retaliated against the plaintiffs for exercise of protected speech. The Officers
challenge this ruling in their reply brief, but we find that the District Court correctly
concluded that the Amended Complaint did not sufficiently alleged a § 1983 claim
against Morrell for First Amendment violations.
claim for engaging in protected First Amendment activity is evaluated under a three-step
process: (1) first, the plaintiff must establish the speech in question was protected in that
it involved a matter of public concern, and the public interest favoring the expression of
that speech must outweigh any injury the speech could cause to the “interest of the State,
as an employer, in promoting the efficiency of the public services it performs through its
employees,” (2) second, the plaintiff must show that protected activity was a substantial
or motivating factor in the alleged retaliatory action, (3) finally, the public employer can
rebut the claim by demonstrating that the same decision would have been reached even in
the absence of the protected conduct. Baldassare v. New Jersey, 250 F.3d 188, 194-95
(3d Cir. 2001) (citing Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will
County, 391 U.S. 563, 568 (1968)). Both of the officers’ First Amendment claims fail to
satisfy the first step.
1. Rubino
We take no issue with Rubino’s contention, and the District Court’s conclusion,
that Rubino’s conversation with Pollinger expressing concern over the Police
Department’s response to September 11 was a matter of public concern. Rubino’s
concern, however, took the form of challenging Pollinger’s orders– persistently,
flagrantly, and in front of others. We agree with the District Court that Rubino’s
expression of his concern was outweighed by the public interest in maintaining
obedience, order, and discipline in the police department, especially in the time of crisis
that was the time period immediately following the attacks of September 11.
Accordingly, we discern no error with the District Court’s dismissal of Rubino’s First
Amendment claim.3
2. Weimer
Weimer’s argument that his First Amendment rights were violated is similarly
unpersuasive. Weimer fails to show how his memo to Cerame, set out in the facts,
regarding Morrell’s behavior constitutes speech that is a “matter of public concern” as
opposed to speech asserting Weimer’s own interests and issues. Moreover, the only act
committed by Pollinger or any others in the police department directed towards Weimer
was the suggestion that Weimer, and the other officers, seek counseling. Morrell cannot
credibly construe Pollinger’s suggestion to seek counseling as retaliation when the
officers claim they were traumatized by Morrell’s actions. We therefore affirm the
District Court’s order with respect to the dismissal of Weimer’s First Amendment claim.
B. Failure to Train
Finally, the officers argue that the Township is liable under § 1983 for failing to
train, supervise, and monitor its employees. The District Court correctly noted that a
3
The officers’ brief hints that Rubino also has a first amendment retaliation claim
arising out of the incident with Morrell. This is wholly unpersuasive. While the
Amended Complaint maintains that Rubino joined the other officers in requesting an
internal affairs investigation of the incident with Morrell, the complaint does not identify
speech specifically made by Rubino with respect to this request, nor is there any link
made between the alleged retaliatory acts Rubino suffered and any speech he engaged in
with respect to Morrell’s activities.
municipality can be held liable for failing to train its employees when the municipality’s
failure shows “a deliberate indifference to the rights of its inhabitants,” Canton v. Harris
489 U.S. 378, 389 (1989) (internal quotation marks omitted), and that no such deliberate
indifference on the part of the municipality was alleged.
The entirety of the Officers’ allegations with regard to this claim is as follows:
Defendant/Municipality. . . failed to properly train and supervise its
employees and agents and, as such, the violations that resulted, along with
failure to train, violate 42 U.S.C. § 1983. Defendant/Municipality failed to
train its agents to take proper investigatory and remedial action relating to
the officers’ fear for their safety in their workplace as detailed [in previous
paragraphs in the Amended Complaint].
This action violates 42 U.S.C. § 1983 because their actions violate
the Constitution of the United States, denying Plaintiff of life, liberty and
property and the pursuit of happiness, and hence, 42 U.S.C. 1983.
Appellant App. Vol II. at 107(a).
In the Amended Complaint, the Officers did not identify any examples of specific
training that the Township failed to provide.4 If the Officers were unable to provide
specific examples of training needed, it cannot be said that the need for more or
additional training is so obvious as to constitute deliberate indifference on the part of the
4
In the briefs submitted to this Court, the Officers note that no Defendants
attempted to ascertain Morrell’s psychiatric stability, nor did the Township institute
policies or training relating to the identification and control of police officers who may
commit such conduct. The District Court did not have the opportunity to rule upon
whether the failure to provide such training would constitute deliberate indifference, but
nevertheless, we do not find it unreasonable that the Township did not mandate training
related to police officers who harass other police officers by sending horse manure
through the mail.
Township. Therefore, we find no error in the District Court’s order dismissing the
officers’ failure to train claim.
IV. Conclusion
We have considered all of the arguments advanced by the parties and conclude that
no further discussion is necessary. Accordingly, the judgment of the District Court will be
affirmed.