Robert Otto v. R. Williams , 704 F. App'x 50 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-3072
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ROBERT G. OTTO; MICHAEL SPICER;
BRIAN REYNOLDS; PERRY BETTS;
JOHN SPEISER; THOMAS LICIARDELLO;
LINWOOD NORMAN
v.
R. SETH WILLIAMS;
CITY OF PHILADELPHIA;
OFFICE OF DISTRICT ATTORNEY PHILADELPHIA COUNTY;
MICHAEL A. NUTTER;
POLICE COMMISSIONER CHARLES RAMSEY
Michael Spicer, Brian Reynolds, Perry Betts, John Speiser,
Thomas Liciardello and Linwood Norman,
Appellants
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-15-cv-03217)
Honorable Paul S. Diamond, District Judge
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Submitted under Third Circuit L.A.R. 34.1(a)
June 16, 2017
BEFORE: JORDAN, KRAUSE, and GREENBERG, Circuit Judges
(Filed: July 27, 2017)
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OPINION*
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GREENBERG, Circuit Judge.
I. INTRODUCTION
This appeal presents a central question: whether damages are available for stigma
in a 42 U.S.C. § 1983 “stigma plus interest” claim when the plaintiffs, police officers
with the Philadelphia Police Department, were acquitted of corruption charges at a
criminal trial and successfully sought reinstatement to their positions with back pay.
Because the officers’ criminal trial was a sufficient name-clearing hearing that provided
them with a complete remedy for their reputational harm, we will affirm the District
Court’s dismissal of those claims by an order dated June 6, 2016.
II. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
appellate jurisdiction based on 28 U.S.C. § 1291.
We exercise plenary review of a district court’s grant of a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). “To decide a motion to
dismiss, courts generally consider only the allegations contained in the complaint,
exhibits attached to the complaint and matters of public record.” Pension Ben. Guar.
____________________
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). We must accept
all well-pleaded facts as true and disregard legal conclusions in determining whether the
plaintiff has a plausible claim for relief. Fowler, 578 F.3d at 210-11.
III. BACKGROUND
We recite the facts as alleged in the Second Amended Complaint, the operative
complaint, that are relevant to this appeal. This case arises out of certain police officers’
terminations following their indictment by a federal grand jury on corruption charges on
which they were subsequently acquitted at a jury trial. Appellants’ br. at 4. At this stage
in the proceedings, the defendants left in this case are the City of Philadelphia, former
City of Philadelphia Mayor Michael Nutter, and former City of Philadelphia Police
Commissioner Charles Ramsey (the “city defendants”).1 The six current plaintiffs, all
Philadelphia police officers formerly in the Philadelphia Police Department’s Narcotics
Field Unit, appeal the dismissal of their lone remaining stigma-plus claim.2 Id.A federal grand jury on July 29, 2014 indicted the plaintiffs on corruption
charges.3 App’x at 93. The Philadelphia Police Department consequently terminated
1
Otto and Williams—original parties named in the caption—are no longer parties.
2
They are Michael Spicer, Brian Reynolds, Perry Betts, John Speiser, Thomas
Liciardello, and Linwood Norman. Appellants’ br. at 3.
3
Although it is only tangentially related to the appeal, the Philadelphia District Attorney
sent a letter to Police Commissioner Ramsey on December 3, 2012, stating that the
District Attorney’s Office would no longer use any of those officers but one—Norman,
3
their employment. Id. On July 31, 2014, while the Police Department underwent that
termination process, Mayor Nutter and Commissioner Ramsey held a joint, televised
press conference in which Mayor Nutter called the officers “sick scumbags.” Id. at 94.
In that same conference, Commissioner Ramsey stated that “this is one of the worst
corruption cases that [he had] ever heard,” and claimed that the officers’ police badges
would be destroyed. Id. Those statements made at the press conference are the only ones
on which the officers base their lone remaining stigma-plus claim. Appellants’ br. at 14.
The officers were acquitted of all 47 charges on May 14, 2015. App’x at 97. The
officers consequently filed individual grievances pursuant to the City of Philadelphia’s
collective bargaining agreement with the City challenging their terminations. Id. at 108.
The arbitration hearing for those grievances led to an order on July 10, 2015, that the
officers be reinstated and provided back pay. Id. at 95, 97, 108. Their personnel records
were also expunged of all references to the discharges, and the City was prohibited from
relying on or referencing the discharges for any employment-related purpose. Id. at 108.
After the acquittals and the arbitration, on July 27, 2015, the Philadelphia Daily News
published an article about the acquittals, quoting Commissioner Ramsey’s earlier, pre-
who nonetheless was indicted later—as witnesses in narcotics cases, would refuse to
bring charges in cases in which one of the officers would be a necessary witness, and no
longer would approve any warrants in narcotics cases when one of the officers was the
affiant in the affidavit on the basis of which warrants were being sought, or the probable
cause portion of the warrant included any averments from him. App’x at 83. All of those
officers were removed from the Narcotics Field Unit, and the District Attorney’s Office
withdrew and dismissed hundreds of drug cases that involved those officers. Id.at 91-92.
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acquittal statements that the case was one of the worst cases of corruption he had seen
and that the officer’s badges would be melted.4 Id. at 97-98.
The officers filed their initial suits in state court in June 2015, but they
subsequently were removed to federal court and consolidated into the present case. Id. at
45. In response to the suits, the Philadelphia Inquirer ran an editorial entitled “Laws
Apply to the Police Too” seemingly objecting to the current suit and recounting that
“witnesses accused the officers of acting like street thugs, roughing up suspects, ignoring
due process, planting evidence, pocketing seized money, and lying in police reports. The
squad’s superiors allegedly asked few questions because the unit was so productive.” Id.
at 100-01. It repeated both the comments by Mayor Nutter that the officers were “sick
scumbags” and those by Commissioner Ramsey that it was one of the worst cases of
corruption he had heard. Id. at 101.
The only claim left on appeal is a stigma-plus due process claim under the
Fourteenth Amendment pursuant to 42 U.S.C. § 1983. Appellants’ br. at 13. The District
Court dismissed that claim because it held that the officers received due process in what
amounted to name-clearing hearings at both the criminal trial and the arbitration. App’x
at 15-16. The officers appealed.
4
We do not detail the other statements against the officers made by third parties, such as
the Philadelphia Inquirer, or any of the city defendants’ statements that the officers do not
challenge.
5
IV. DISCUSSION
“[T]o make out a due process claim for deprivation of a liberty interest in
reputation, a plaintiff must show a stigma to his reputation plus deprivation of some
additional right or interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.
2006) (citing Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1161 (1976)).
“[R]eputation alone is not an interest protected by the Due Process Clause.” Versarge v.
Twp. of Clinton, N.J., 984 F.2d 1359, 1371 (3d Cir. 1993) (emphasis added). This type
of claim is commonly referred to as a “stigma-plus” claim. See, e.g., Hill, 455 F.3d at
236.
We have recognized that a public employee establishes a valid “stigma-plus”
claim when a public employer “creates and disseminates a false and defamatory
impression about the employee in connection with his termination.” Id. (quoting Codd v.
Velger, 429 U.S. 624, 628 (1977)). The “stigma” is the “defamatory impression” and the
“plus” is the loss of the protected property interest of the employment. Id. The
“principal relief” for the “stigma” is a name-clearing hearing. Ersek v. Twp. of
Springfield, 102 F.3d 79, 84 (3d Cir. 1996).
The officers’ appeal centers on a claim for that relief: they (1) contend that the
criminal trial and arbitration were insufficient name-clearing hearings, appellants’ br. at
25-26, 37, and (2) argue that these hearings are the principal but not sole relief available
to them, id. at 16. We now turn to each of these contentions.
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1. The Sufficiency of the Name-Clearing Hearings
The officers maintain that the two name-clearing hearings—the criminal trial and
arbitration—were insufficient to guarantee that they received due process. With respect
to the criminal trial, they make both substantive and temporal arguments about its
inadequacy: substantively, the criminal trial itself was an incomplete remedy because the
public understands that a “not guilty” verdict does not necessarily mean that the court
found that the defendant in the criminal action was actually innocent, appellants’ br. at
31, and temporally, the trial itself could not have cleared all the stigma because the
stigmatizing press conference statements were republished after the trial. Id. at 37. The
city defendants respond that the officers cannot base a continuing stigma claim on
statements that were not contemporaneous with the deprivation of the property interest.
Appellees’ br. at 13. In addressing the arbitration, the officers contend that it was
designed to protect property rather than reputational interests and exclusively involved
stipulations, therefore it was not an adequate name-clearing hearing. Appellants’ br. at
25-26, 40. The city defendants reply that, inasmuch as the officers chose to pursue
arbitration rather than a public hearing option, they cannot claim that process was
insufficient. Appellees’ br. at 14-15.
Inasmuch as the officers contend that a criminal trial does not “per se” suffice as a
name-clearing hearing, appellants’ br. at 32, we address the question of whether a
criminal trial is a constitutionally adequate name-clearing hearing for “reputational
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injury” from alleged criminal conduct.5 See Graham v. City of Philadelphia, 402 F.3d
139, 147 (3d Cir. 2005). The criminal trial “with its stringent procedural safeguards and
5
We have indicated that the criminal trial needs to have satisfied due process
requirements, Graham, 402 F.3d at 146; in this case, however, the officers fail to allege
any well-pleaded facts that the trial was constitutionally deficient in securing due process.
To argue otherwise, they direct the Court to statements in the complaint that “[t]he case
presented to the jury by the prosecutors against [them] was literally laughable, and,
disgraceful,” app’x at 78, and that there was a “shocking and complete lack of credible
evidence, and shoddy and reprehensible work by prosecutors and investigators,” id. at 61.
The complaint states that “[t]he literally laughable case put on by the United States
Attorney . . . is highly relevant to the instant matter, but obviously the nature of its
astonishing shortcomings cannot be fully or concisely explicated in this Complaint” and
provides no factual allegations of that alleged incompetence. Id. at 102. The complaint
directs the Court to an affidavit about the “thread of inaccuracy, incompetence and bias
weaved throughout the investigation” and “the Government’s laughable while horrifying
incompetencies [sic].” Id. at 103. Nothing in that affidavit properly alleges trial-related
activity that if true violates the officers’ due process rights. See id. at 121-28.
The officers claim that they could amend their complaint to provide more factual
details of any improprieties in the trial. Appellants’ br. at 34. “Our precedent supports
the notion that in civil rights cases district courts must offer amendment—irrespective of
whether it is requested—when dismissing a case for failure to state a claim unless doing
so would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors,
Inc., 482 F.3d 247, 251 (3d Cir. 2007). The District Court dismissed the case with
prejudice, noting that “[t]his is not a close case. All [of the officers’] claims are either
implausible, non-cognizable, or both.” App’x at 35. We interpret that statement as
meaning that amendment would be futile. See In re Burlington Coat Factory Securities
Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (reading the futility determination into a denial
of a motion for leave to amend when no reason was given). We review this
determination for abuse of discretion. Id. The District Court did not abuse its discretion
in dismissing this case with prejudice when none of the highlighted allegations rise to a
due process violation, as an amendment fleshing out the details of those allegations—in a
third amended complaint—would still fail to state a claim upon which relief could be
granted. See id.There is also no merit to the officers’ claim that the name-clearing hearing was
somehow insufficient to remedy the city defendants’ alleged due process violations
because it was brought in federal court rather than in state court. As we held in Graham,
the criminal trial “obviat[es]” the need for a name-clearing hearing. 402 F.3d at 145,
147.
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difficult burden of proof afford[s] plaintiff[s] more process” than that which is
constitutionally required to clear one’s name.6 Id. at 146 (internal quotation marks
omitted). That trial cleared the officers of the only stigma that they allege—the stigma of
the statements made at the press conference regarding their termination. That those
statements were republished by a third party is irrelevant: they were made before the trial,
and thus the stigma from them was cleared by it.
As we hold that the criminal trial was a constitutionally sufficient name-clearing
hearing, we decline to consider whether the arbitration was also sufficient as we have no
need to do so. The officers received their due process in restoring their reputations.
2. Whether Plaintiffs Are Entitled to an Additional Remedy
We never have held that damages are available as a remedy for the harm to the
reputational interest in a stigma-plus claim. The city defendants contend that a name-
clearing hearing is the sole remedy available. Appellees’ br. at 13. The officers in their
complaint allege damages for “reputations for which they are entitled to have a name[-
]clearing hearing; loss of employment prospects; and, emotional distress.” App’x at 112.
The officers cite dicta contained in a series of footnotes in otherwise-inapposite cases
stating that there may be a situation in which a name-clearing hearing may be insufficient
to remedy the wrong of a damaged reputation, although none of those cases provide an
example of when that would be the case. See Hill, 455 F.3d at 236 n.15 (“We have not in
the past decided—and do not have occasion to decide here—whether a plaintiff who
6
It thus per se more than satisfies the three-prong balancing test that the officers cite
from Graham. Graham, 402 F.3d at 145-46.
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prevails on a ‘stigma-plus’ claim may be entitled to remedies other than a name-clearing
hearing.”); Graham, 402 F.3d at 143 n.3 (quoting Ersek, 102 F.3d at 84 n.6) (“We noted
in Ersek that it ‘is unclear whether a plaintiff would be entitled to damages in addition to
or in lieu of a hearing[,]’ but implied that damages might be available because a name-
clearing hearing might not always ‘cure all the harm caused by stigmatizing government
comments.’”).
We are mindful that we must not “equate a state defamation claim” with a stigma-
plus claim. Kelly v. Borough of Sayreville, N.J., 107 F.3d 1073, 1078 (3d Cir. 1997). As
we hold above, the officers’ criminal trial afforded them the due process remedy for the
harm to their reputation and restored the harm by the “stigma.” The arbitration provided
the officers with full reinstatement and back pay; their employment records were
expunged of any reference to the alleged defamatory statements, and no employment
decision could be based on the conduct for which the officers were acquitted, thus the
arbitration fully remedied the interest in the “plus” part of the claim. While we still
recognize the theoretical possibility that harm to someone’s reputation would not be
recompensed fully by a name-clearing hearing, that is not the situation here. We decline
to determine whether any other damages are available in a stigma-plus claim; suffice it to
say that in this case the outcome of the criminal trial provided the officers with an
adequate remedy to any reputational harm.
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V. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s June 6, 2016 order
dismissing with prejudice the officers’ stigma-plus due process claims under 42 U.S.C.
§ 1983.
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