Opinion
Civil Action No. 03-3068.
May 20, 2004
MEMORANDUM
Introduction
Gayle Taylor ("plaintiff") brings this action against the City of Philadelphia, Commissioner Sylvester Johnson, Detective John Rankin, and Detective Gregory Singleton ("defendants") seeking damages as well as injunctive and equitable relief pursuant to 42 U.S.C. § 1983 and the common law of Pennsylvania, to redress injuries suffered as a result of her January 24, 2002 arrest and subsequent termination from the Philadelphia Police Department. Now before the court are the parties cross-motions for summary judgment made pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons that follow, the defendants' Motion for Summary Judgment is GRANTED and plaintiff's Partial Motion for Summary Judgment is DENIED.
Factual Background
Ms. Taylor was employed as a Police Communications Dispatcher for the City of Philadelphia Police Department ("PPD"), from February 21, 1989 to February 24, 2002, when she was dismissed for conduct unbecoming an employee pursuant to Section 1.75 of the Philadelphia Police Department Disciplinary Code. (Defs.' Mot. Summ. J. at 1 and Defs.' Ex. 10, Notice of Dismissal at 1). The conduct underlying Ms. Taylor's dismissal has never been materially disputed.
On January 24, 2002, Ms. Taylor's son, Jahlil Davis ("Davis") was arrested by the PPD for robbery. (Am. Compl. ¶ 9). While in police custody, Davis was overheard telling his girlfriend, Melakia Green, that the police were going to search her house and that she should take his "stuff" to his mother's house. (Id.). Thereafter, Detective Christopher Casee of Southwest Detective Division went to Ms. Green's home and, with her consent, searched the property, but found nothing related to the crime. (Defs.' Mot. Summ. J. at 2; Pl's Partial Mot. Summ. J. at 2). When questioned, Ms. Green informed the detective that she had taken Davis' belongings to Ms. Taylor's house earlier that morning. (Pl's Partial Mot. Summ. J. at 2). In addition to delivering a green trash bag filled with clothing, Ms. Green had handed Ms. Taylor a white plastic bag containing a hand gun, which Ms. Taylor put in her jacket pocket without opening. (Am. Compl. ¶ 10).
Det. Casee called Ms. Taylor and asked whether he could search her house for the items Ms. Green had delivered. (Id. ¶ 11). Ms. Taylor declined to give consent and told the detective to get a search warrant, before hanging up on him. (Id. ¶ 12). The parties disagree as to whether Ms. Taylor used profanity towards Det. Casee during this phone call. By the time that Det. Casee arrived at Ms. Taylor's home, she had left the premises. (Defs.' Mot. Summ. J. at 3). He placed uniformed officers in front of and behind the premises and proceeded to secure a search warrant. (Id.). The subsequent search of Ms. Taylor's residence revealed only a green trash bag filled with Davis' clothing. (Id.).
After her telephone conversation with Det. Casee, Ms. Taylor left her residence with the white plastic bag still in her jacket pocket. (Defs.' Mot. Summ. J. at 4). She proceeded to the laundromat to wash her clothing. (Id.). Thereafter, Ms. Taylor attempted to find legal representation. (Defs.' Ex. 4, Pl.'s Dep. at 65). She went to her State Representative's office, a nearby lawyer's office, her union's business office, the Pennsylvania Bar Association, Community Legal Services, the Defender's Association, and the District Attorney's office. (Id. at 30-53). Ms. Taylor did not find a lawyer to help her. Throughout this process, she was aware that she was carrying the gun, which was being sought by the police.
At approximately 3:00 p.m., Ms. Taylor went to the 18th Police District and asked to speak with a supervisor. (Am. Compl. ¶ 13). She was taken to the office of the Southwest Detective Division. There she met with Lieutenant Michael Chitwood. (Defs.' Mot. Summ. J. at 4). Ms. Taylor handed him the white plastic bag and said "[t]hat's it, I don't want anything else to do with it." (Am. Compl. ¶ 13). Lt. Chitwood informed Ms. Taylor that she would have to be interviewed and turned the bag over to Det. John Rankin and Det. Gregory Singleton. (Defs.' Ex. 3, Tr. Prelim. Hr'g 4/8/02 at 23-24). The detectives opened the bag. It contained a loaded, semi-automatic hand gun and nineteen packets of a substance that appeared to be crack cocaine. (Id.). Ms. Taylor claims that she was unaware of the crack cocaine because, although she felt the bag and determined that it contained a gun when she received it from Ms. Green, she never opened it. (Defs.' Ex. 4, Pl.'s Dep. 21-22, 94).
Detective Rankin and Detective Singleton attempted to question Ms. Taylor about the bag and the contraband (Am. Compl. ¶ 14). She refused to answer their questions. She stated that they could not play "good-cop, bad-cop" on her and that she knew her rights. (Id.). At that point, the detectives placed Ms. Taylor under arrest. (Id.). With approval of the District Attorney's Office, she was charged with tampering with evidence, obstructing justice, hindering apprehension, aiding consummation of a crime, violating the Uniform Firearm Act by carrying a firearm without a license, violating the Uniform Firearm Act by carrying a firearm in a public street or place, and possession of a controlled substance with knowledge and intent. (Am. Compl. ¶ 15). At approximately 6:00 p.m., Lt. Chitwood called Det. Casee at home to discuss his earlier telephone conversation with Ms. Taylor and the target of the search warrant. (Pl.'s Partial Mot. Summ. J. at 3).
On January 28, 2002, Ms. Taylor was called to the Internal Affairs Division (IAD) Headquarters of the PPD. (Am. Compl. ¶ 16). In the presence of Captain H. Robert Snyder, a supervisor in the Communications Division, and Ann Cohen, the president of District Council #33, Lieutenant William McCarthy read Ms. Taylor her Miranda rights and Gniotek warnings. (Defs.' Ex. 2, IAD Investigation File at Bates 62). Ms. Taylor declined to make a statement. (Am. Compl. ¶ 16). Thereafter, Commissioner Sylvester Johnson ordered that Ms. Taylor be suspended from her position as a police dispatcher for thirty days with notice of intent to dismiss. (Am. Compl. ¶ 17, Defs.' Ex. 9, Notice of Intention to Dismiss).
On February 24, 2002, Commissioner Johnson terminated Ms. Taylor for conduct unbecoming an employee pursuant to Section 1.75 of the Philadelphia Police Department Disciplinary Code. (Am. Compl. ¶ 18 and Defs.' Ex. 10, Notice of Dismissal at 1). The report attached to the Notice of Dismissal detailed Ms. Taylor's refusal to consent to a search of her home, her removal of the white plastic bag, her arrest, and her decision not to provide a statement when questioned by the IAD. (Defs.' Ex. 10, Notice of Dismissal at 2). It specifically found that Ms. Taylor "removed the evidence with the intent to impair its availability to be used in the robbery investigation" against her son, Jahlil Davis. (Id.). The report concluded that "[t]his course of action indicates that you have little or no regard for your position as a member of the Philadelphia Police Department," a violation of the PPD Disciplinary code. (Id.).
Ms. Taylor appealed the Commissioner's decision to the Civil Service Commission of the City of Philadelphia. (Defs.' Ex. 11,Appeal of Gayle Taylor, No. 4111SD, May 2, 2003). The Commission found that "just cause was established by substantial evidence, which constituted unbecoming conduct by a municipal employee." (Id. at 4). The Commission rejected Ms. Taylor's argument that as a civilian employee she was not subject to the PPD's Disciplinary code, citing her union's acquiescence to the PPD's work rules, the practice of providing new employees with a copy of the disciplinary code, and Ms. Taylor's prior discipline under the code for unrelated code violations. There is no evidence in Ms. Taylor's personnel folder that she received a copy of the code. (Pl.'s Partial Mot. Summ. J. at 16, n. 5). Ms. Taylor did not appeal the Commission's ruling to the Philadelphia Court of Common Pleas, as was her right.
On April 8, 2002, after a preliminary hearing, Judge Harvey Robbins of the Philadelphia Court of Common Pleas found that there was insufficient evidence to support the charges against Ms. Taylor and summarily discharged the criminal case. (Am. Compl. ¶ 19). On September 24, 2002, the charges were expunged. (Comp. ¶ 8). Ms. Taylor initiated this civil suit in the Court of Common Pleas on May 2, 2003. (Id.) Defendants removed the action to this court on May 13, 2003. (Notice of Removal).
Discussion
Legal Standard for Summary Judgment
Under Fed.R.Civ.P. 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law." Celetox Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(c). In order to defeat a motion for summary judgment, disputes must be both 1) material, meaning concerning facts that will affect the outcome of the issue under substantive law, and 2) genuine, meaning the evidence must be such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23. In reviewing a motion for summary judgment, the court "does not make credibility determinations and must view facts and inferences in the light most favorable to the party opposing the motion." Seigel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).
Constitutional Claims
Ms. Taylor brings multiple claims pursuant to 42 U.S.C. § 1983. This statutory provision provides for civil liability for any person who, under color of state law, subjects another "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Thus, § 1983 does not create a cause of action, but provides a vehicle for federal court review of alleged violations of federal constitutional or statutory law.
In order to prevail in a § 1983 action, a plaintiff must establish that: 1) a deprivation of a constitutionally or federally secured right occurred, and 2) the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Hicks v. Feeney, 770 F.2d 375, 377 (3d Cir. 1985). As the defendants were acting in their capacities as public employees during Ms. Taylor's arrest and subsequent termination, their actions were taken under color of state law. Atkins, 487 U.S. at 49-50. Thus, the issue before the court is whether plaintiff has produced sufficient evidence that she was deprived of her constitutional rights by the defendants to survive a motion for summary judgment.
A. Claims Against the City
1. Count I — Retaliation — Dismissed
Plaintiff's first claim is that the City of Philadelphia is liable for her termination because she alleges that her dismissal was in retaliation for her exercise of First, Fourth, and Fifth Amendment rights. Specifically, plaintiff asserts that she was dismissed because she told Detective Casee that she would not consent to the search of her house, because she required the police to get a search warrant before they conducted their search, and because she refused to give a statement to the police, both prior to her arrest and during the Internal Affairs Division (IAD) investigation.
Under Monell v. Dept. of Social Serv., 436 U.S. 658 (1978), a municipality, like the City of Philadelphia, may be found liable for violating an individual's civil rights under limited circumstances. In order to prevail on such a claim, a plaintiff must demonstrate: 1) the deprivation of a constitutional right; 2) that action was taken pursuant to a custom or policy of the local government unit; and 3) that such action was the cause of the deprivation. Id. Defendants argue that plaintiff has failed to establish that there was a municipal policy or custom underlying her alleged constitutional deprivation, or that such policy or custom caused the alleged deprivation. In her response, plaintiff acknowledges that she cannot maintain this claim, and stipulates to its dismissal. Therefore, count I of plaintiff's amended complaint is dismissed.
2. Count II — Equal Protection Violation — Dismissed
Plaintiff alleges that the City violated her right to equal protection under the Fourteenth Amendment by discharging her because of her arrest and related events and by failing to reinstate her after the criminal charges against her were dismissed. She claims that the PPD's policy of terminating employees arrested and charged with crimes, as well as denying reinstatement after acquittal, is discretionary rather than mandatory. In support of her equal protection claim, plaintiff alleges that two other employees of the PPD were arrested and charged with crimes for which they were eventually cleared. (Am. Compl. ¶¶ 32-37). She further claims that, unlike her experience, one of these employees was given the option of resigning prior to termination, allowing him to retain his pension benefits, and both were reinstated after their acquittal.
In their motion for summary judgment, defendants argue that plaintiff has not established that she had a protected property interest in her position and therefore that her equal protection claim should be dismissed. This is not the relevant inquiry for an alleged violation of equal protection. However, in their response to Plaintiff's Partial Motion for Summary Judgment, defendants do offer evidence that fifteen civilian employees have been terminated pursuant to Section 1.75 of the PPD Disciplinary Code since 2000. (Defs.' Mem. in Opp., Ex. B). They also argue that the PPD strictly enforces its policy of terminating public employees who are arrested for crimes.
The equal protection clause of the Fourteenth Amendment provides that no State shall "deny any person within its jurisdiction the equal protection of the laws." US. Const. Amend. XIV. In essence, this is "a direction that all persons similarly situated should be treated alike." Congregation Kol Ami v. Abington Township, 309 F.3d 120, 133 (3d Cir. 2002) (citations omitted). To properly plead an equal protection claim, a plaintiff must allege facts sufficient to establish that a law, ordinance, or policy impermissibly discriminates against a class of people, or is enforced in such a way as to give rise to an inference of discrimination. See e.g., Hassel v. Neal, 1997 WL 269575, *4 (E.D.Pa. 1997).
Plaintiff has not alleged that she is a member of a protected class. See e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). Even if the court assumes that plaintiff's equal protection claim is one for discrimination on the basis of her race or gender, she has not offered evidence that similarly situated white or male employees were not terminated by the PPD for conduct commiserate with her own. While plaintiff's amended complaint alludes to disciplinary actions against other PPD employees, it offers no information about the circumstances of their arrests and reinstatement. Likewise, the December 2003 Report of the Integrity and Accountability Office of Philadelphia Police Department, which plaintiff includes in her motion for summary judgment, does not provide support for plaintiff's contention that her equal protection rights were violated. (Pl.'s Partial Mot. Summ. J., Ex. D). This document addresses the discipline of uniformed officers of the PPD, not the discipline of civilian employees. While there may be shortcomings in the PPD's internal disciplinary system, there is no evidence that plaintiff was subjected to discipline on a discriminatory basis, or that similarly situated civilian employees of the PPD were treated more favorably.
Plaintiff was arrested because she brought a bag, containing an unlicensed weapon and nineteen packets of what appeared to be crack cocaine into a police station. She was terminated because she engaged in a course of conduct which she knew frustrated an on-going police investigation. Specifically, by leaving her house with the bag, she removed "evidence with the intent to impair its availability to be used in the robbery investigation as evidence" against her son. (Defs.' Ex. 10, Notice of Dismissal at 2). There is no evidence that plaintiff's arrest or termination occurred in violation of her equal protection rights. Therefore, count II of plaintiff's amended complaint is dismissed.
3. Count III — Due Process — Dismissed
Plaintiff alleges that her procedural and substantive due process rights were violated because Section 1.75 of the PPD Disciplinary Code, the provision under which she was terminated, is unconstitutionally vague and overbroad as applied to her. Philadelphia Police Department Disciplinary Code, § 1.75 (January 1999). According to plaintiff, no civilian employee of the PPD would understand that this provision applied to him or her because the article under which it is included is entitled "Conduct Unbecoming an Officer" in the January 1999 edition of the PPD Disciplinary Code, which was in effect at the time of her termination. Id. at 2. Plaintiff also contends that Section 1.75 is "void for vagueness" because it does not clearly indicate that it applies to off-duty conduct, and she did not have notice that her behavior on January 24, 2002 was subject to discipline by her employer. She also alleges that the provision is unconstitutionally vague because it does not specifically define "his/her responsibility as a member of the Police Department." Id. Because of these alleged constitutionally infirmities, plaintiff claims that her discharge pursuant to Section 1.75 was arbitrary and capricious.
Section 1.75 reads as follows:
Repeated violation of Departmental rules and regulation, and/or any other course of conduct indicating that a member has little or no regard for his/her responsibility as a member of the Police Department.
Philadelphia Police Department Disciplinary Code, § 1.75 (January 1999).
Plaintiff incorrectly quotes this language in her Partial Motion for Summary Judgment, arguing that it refers to the "Philadelphia Police" rather than the "Police Department." (Pl.'s Partial Mot. Summ. J. at 21). See also, Philadelphia Police Department Disciplinary Code, § 1.75 (January 1999).
Defendants assert plaintiff has not made out a claim under either procedural or substantive due process, and that they are therefore entitled to summary judgment on this count. Regarding plaintiff's procedural due process claim, they assert that Section 1.75 is neither vague nor overbroad and that plaintiff was clearly on notice that her off-duty conduct could result in disciplinary action by her employer. They also claim that the PPD's handling of plaintiff's case comported with standards of procedural due process, because she was able to appeal the Commissioner's termination decision to the Civil Service Commission. In response to plaintiff's substantive due process claim, they assert that plaintiff's "property" interest in continued employment with the PPD, is not the kind of "fundamental" property interest that is intended to be protected by substantive due process.
a. Notice, Vagueness and Overbreath
Although plaintiff was an employee of the PPD for more than twelve years, she claims that she did not have notice that Section 1.75 of the PPD Disciplinary Code applied to civilian employees because it is included in Article I, Conduct Unbecoming an Officer. In support of this contention, she points out that there is no evidence in her personnel folder that she received a copy of the code. (Pl.'s Partial Mot. Summ. J. at 16).
In response, the defendants offer the testimony of Kevin Scanlon, Personnel Assistant III, who oversees the Human Relations operations in the PPD. Mr. Scanlon testified at plaintiff's hearing before the Civil Service Commission, that the PPD Disciplinary Code "governs all Police Department employees" and for the last several years, it has been department practice to provide a hard copy of the code to all new hirees, in addition to providing oral notice. (N. Tr., Civil Serv. Comm'n Hr'g., April 1, 2003, at 64). He also testified that the union, which represents civilian employees of the PPD, has never challenged the application of any of the code provisions to its members. (Id. at 64). Defendants also proffer that since 2000, fifteen civilian employees, in addition to the plaintiff have been dismissed pursuant to Section 1.75. (Defs.' Mem. In Opp., Ex. B).
This exhibit indicates that in 2000 and 2001, ostensibly before the plaintiff was dismissed, seven civilian employees of the PPD were dismissed pursuant to Section 1.75.
The Civil Service Commission addressed the issue of plaintiff's notice of the applicable regulation during her appeal. It found that "there is no statutory authority or case law to support [Ms. Taylor's] contention that the Department's disciplinary code applies only to Police Officers and not to their civilian co-workers." (Defs.' Ex. 11, Appeal of Gayle Taylor, No. 4111SD, May 2, 2003 at 4). The Civil Service Commission also found that the PPD's practice of distributing the disciplinary code to new employees, the historical acquiescence by the union to the discipline of civilian employees under the code, and the fact that plaintiff, herself, had been previously disciplined under the code on an unrelated matter, supported a finding that plaintiff was aware of its general applicability and its "relevance to everyday conduct in and out of the workplace." (Id.). That finding of fact was not appealed by plaintiff, and is now conclusive and binding upon this court.
While plaintiff may not have had a detailed understanding of every provision of the PPD's disciplinary code, this court separately finds that as a civilian employee, she had sufficient notice of the existence of the code to know that she could be disciplined for inappropriate conduct, even if it took place outside of the workplace. Although the details of plaintiff's prior disciplinary action are not before this court, the mere fact that she had been disciplined under the code undermines her allegations of ignorance of the code of discipline by which her conduct was being judged. Regardless, Ms. Taylor knew that she could be dismissed for just cause. This was found by Commissioner Johnson to be the case and that conclusion was sustained by the Civil Service Commission on appeal. See infra.
Furthermore, the state law cases that plaintiff cited during oral argument, Philadelphia Civil Service Commission v. Owens, 556 A.2d 967 (Pa.Commw. 1989) and Civil Service Commission of the City of Philadelphia v. Wiseman, 501 A.2d 350 ( Pa. Commw. 1985), both support a finding that civilian employees may be held accountable for their off-duty conduct under Section 1.75. In Wiseman, the Pennsylvania Commonwealth Court found it was appropriate to hold a school crossing guard to the "high standard of conduct" applied to the uniformed police because "her off-duty misconduct could reflect poorly on the Police Department, and tend to destroy public respect and confidence in its operations."Wiseman, 501 A.2d at 353 (dismissing plaintiff pursuant to language which parallels Section 1.75). This holding was explicitly reaffirmed in Owens. 556 A.2d at 968. There, the court reinstated the plaintiff, a police tow truck operator, because there was no evidence offered regarding the offduty standard of conduct for such civilian employees. Id. at 969. Unlike in Owens, the defendants here provided the plaintiff and the court, with sufficient information about the standard of conduct for civilian employees.
Plaintiff also claims that Section 1.75 is unconstitutionally vague. She argues that it fails to provide notice that it applies to off-duty conduct because, unlike some other sections of code, it does not clearly state whether it applies only to on-duty conduct or to both. (Pl.'s Partial Mot. Summ. J. at 18). She also alleges that Section 1.75 fails to provide standards for enforcement, resulting in discriminatory application. (Id. at 19). Plaintiff also challenges the provision on that basis that it does not define what constitutes "his/her responsibility as a member of the Philadelphia Police." (Id. at 21).
A regulation governing conduct is "unconstitutionally vague when it 'either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its mean and differ as to its application.'" Rode v. Dellarciprete, 845 F.2d 1195, 1199 (3d Cir. 1988) (internal citations omitted). A plaintiff has standing to challenge a regulation on the basis of vagueness only if "it is vague as applied to that person." Id. at 1200. The third circuit has found that "when a litigant's conduct clearly falls within the permissible purview of a statute, such an individual lacks standing to challenge the statute for vagueness." Aiello v. City of Wilmington, 623 F.2d 845, 850 (3d Cir. 1980). Plaintiff's actions, particularly the fact that she removed the gun from her house in an effort to thwart the ongoing police investigation of her son, clearly constituted a "course of conduct indicating that a member has little or no regard for his/her responsibility as a member of the Police Department." Philadelphia Police Department Disciplinary Code, § 1.75 (January 1999). That plaintiff was a member of the PPD is incontrovertible. Although she was a civilian employee of the PPD, she was the first person to whom members of the public spoke when they called 911, and as such, represented the PPD, regardless of her personal feelings about the department and its uniformed officers Appeal of Gayle Taylor, No. 4111SD, May 2, 2003 at 3 (quoting plaintiff as stating that she "did not trust the police.").
This matter is virtually indistinguishable from Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988), where the court found there was no standing for a vagueness challenge by a civilian employee of the Pennsylvania State Police, who sought to challenge disciplinary actions taken pursuant to a regulation requiring that "[e]mployees of the Pennsylvania State Police shall conduct themselves at all times in such a manner as to reflect most favorably on the Department and the Commonwealth thereby promoting good public relations." Id. at 1199 (quoting PSP Administrative Regulation 4-6.03A). Ms. Rode presented a more compelling case for standing than does plaintiff, because her allegations related solely to speech, and not to attendant conduct. By knowingly removing the bag containing the gun from her house, plaintiff engaged in a course of conduct that indicated that she had no regard for "her responsibility as a member of the Police Department." Philadelphia Police Department Disciplinary Code, § 1.75 (January 1999).
Plaintiff's allegation that Section 1.75 does not provide standards for enforcement is without merit. The PPD's Disciplinary Code clearly states that a member found to have violated Section 1.75 may face punishment ranging from a thirty day suspension to dismissal. Id. As indicated in the Civil Service Commission's opinion, "a wide latitude must be left to the appointing authority" to determine whether there is just cause for disciplinary action and what kind of discipline should be imposed. Appeal of Gayle Taylor, No. 4111SD, May 2, 2003 at 4. Plaintiff's dismissal was clearly within the range of disciplinary action available under the PPD Disciplinary Code, and the court finds that it was appropriate, given her actions and subsequent arrest.
Plaintiff offers no evidence that Section 1.75 is enforced in a discriminatory manner. Her argument that the December 2003 Report of the Integrity and Accountability Office of Philadelphia Police Department provides evidence that the entire PPD Disciplinary code is enforced in a discriminatory manner is unavailing. While the case studies included in that report indicate that there may have been lapses in the discipline of sworn police officers, none addresses a situation in which an officer was actually arrested, and then not terminated. The PPD has a policy of dismissing employees upon arrest. This is precisely what happened to the plaintiff in this matter.
Case Study # 10 does discuss an officer who was previously arrested, terminated, and then reinstated. However, the precipitating event was not the focus of the IAO summary, nor were there sufficient details presented to compare that event to plaintiff's behavior. Integrity and Accountability Office, Philadelphia Police Dept., Disciplinary System (December 2003).
Plaintiff's allegation that Section 1.75 is overbroad is also without merit. A statute or regulation is overbroad if it "does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech." Rode v. Dellarciprete, 845 F.2d 1195, 1200 (3d Cir. 1988) (quoting Thornhill v. Alabama, 310 U.S. 88, 97 (1940)). Where the challenged regulation applies to both conduct and speech, as presumably Section 1.75 of the PPD Disciplinary code does, the Supreme Court has dictated that such overbreadth "must not only be real, but substantial as well."Id. (quoting Broadrick v. Oklahoma, 423 U.S. 601, 615 (1973)). This substantiality requirement is evaluated based upon the legitimate scope of the statute or regulation. Id. Section 1.75 prohibits a wide range of conduct that is not constitutionally protected. Plaintiff's actions in this matter fell well within its ambit, as she was terminated by the PPD for removing evidence from her house in an effort to thwart the ongoing investigation of her son, and not because she told Detective Casee to get a search warrant. These circumstances do not support a finding of overbreadth, especially as the Supreme Court has instructed that any overbreadth "should be cured through a case-by-case analysis of the fact situation to which its sanction, assertedly, may not be applied." Broadrick v. Oklahoma, 413 U.S. 601, 615-616 (1973)).
b. Procedural Due Process
The due process clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law . . ." US. Const. Amend. XIV, § 1. In evaluating a procedural due process claim, the court must consider both whether the plaintiff's interests fall within the protections of the amendment and, if they do, what procedures would constitute "due process." Unger v. National Residents Matching Program, 928 F.2d 1392, 1395 (3d Cir. 1991) (citingRobb v. City of Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984).
Plaintiff correctly asserts that as a public employee, she had a constitutionally protected property interest in her employment, pursuant to the Philadelphia Home Rule Charter and the Philadelphia Civil Service Regulations. See e.g., Robb v. City of Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984). However, this property interest was not without limits and Philadelphia Civil Service Regulation 17.02 provides that a public employee "may be dismissed for just cause at any time by the appointing authority." Phil. Civ. Serv. Reg. 17.02 . By finding that plaintiff has violated Section 1.75, Commissioner Johnson found "just cause" for plaintiff's dismissal. (Defs.' Ex. 10, Notice of Dismissal at 1). This finding was sustained by the Civil Service Commission which, after holding several days of hearings on the matter, stated that "we have no difficulty in concluding, based on all of the evidence and testimony in this case, that [Ms. Taylor] was guilty of conduct unbecoming an employee of the Police Department." (Defs.' Ex. 11, Appeal of Gayle Taylor, No. 4111SD, May 2, 2003). Plaintiff did not appeal this decision, as she had the right to do, to the Philadelphia Court of Common Pleas. This court cannot now act as if it were the appellate court reviewing the disposition of the matter by the Civil Service Commission.
The record demonstrates that plaintiff received the procedural due process to which she was entitled. In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), the Supreme Court held that a public employee who could be dismissed only for cause was entitled to a limited pretermination hearing, as well as a comprehensive post-termination hearing. Loudermill, at 547-48. The pre-termination procedure requires only "oral or written notice of the charges . . ., an explanation of the employer's evidence, and an opportunity to present [the employee's] side of the story." Id. at 546. The Notice of Intention to Dismiss, which plaintiff was given on January 28, 2002, met these requirements as it clearly stated that she was being terminated for violating Section 1.75, described the behavior underlying her dismissal, and advised her that she could challenge her impending termination in writing. (Def.'s Ex. 9, Notice of Intention to Dismiss). After her dismissal, plaintiff was able to appeal Commissioner Johnson's decision to the Civil Service Commission, and from there to the Philadelphia Court of Common Pleas. Because plaintiff received due process protections during her termination, defendants are entitled to summary judgment as to this allegation.
c. Substantive Due Process
Plaintiff also alleges that her termination was a non-legislative state action, which violated substantive due process because she believes it was "arbitrary and capricious." (Pl.'s Partial Mot. Summ. J. at 11). The third circuit has held that in order "to prevail on a non-legislative substantive due process claim, 'a plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment's due process protection applies.'" Nicholas v. Pennsylvania State University, 227 F.3d 133, 139-40 (3d Cir. 2000) (quoting Woodwind Estates, Ltd. V. Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000). Such a protected property interest must be of a particular quality, determined by "whether that interest is 'fundamental' under the United States Constitution." Id. at 140 (citations omitted). A particular property interest may be entitled to procedural due process protection without being entitled to the protections of substantive due process. Id. at 141.
Defendants argue that plaintiff's claim is controlled byNicholas v. Pennsylvania State University, 227 F.3d 133 (3d Cir. 2000), in which the third circuit held that Dr. Nicholas' tenured public employment was a "wholly state-created contract right," which was not a fundamental property interest, and was therefore "unworthy of substantive due process." Id. at 143. The court agrees. Plaintiff's property interest in her job was not the kind of property right that triggers a substantive due process inquiry. Therefore, defendants are entitled to summary judgment as to this allegation.
B. Claims Against Commissioner Sylvester Johnson
1. Count VI — First, Fourth, and Fifth Amendment Retaliation — Dismissed
Plaintiff claims that Commissioner Johnson is liable for her termination because she believes he dismissed her from the PPD in retaliation for her decision to exercise her First, Fourth, and Fifth Amendment Rights. Specifically, she alleges that the Commissioner's decision to dismiss her was based on the fact that she told Detective Casee that she would not consent to the search of her house, she required the police to get a search warrant before they conducted their search, and she refused to give a statement to the police, either prior to her arrest or during the Internal Affairs Division (IAD) investigation. In response, defendants argue that plaintiff has not produced sufficient evidence that Commissioner Johnson knew of her allegedly contested speech, and that even if he did, it was not constitutionally protected, nor was it a substantial factor in his decision to dismiss her. They also argue that plaintiff did not properly plead her Fourth and Fifth Amendment retaliation claims. The court will address each of these claims in turn.
Defendants argue that plaintiff's Fourth and Fifth Amendment claims were not alleged in her Amended Complaint, and that she is therefore barred from raising them here. See Dooley v. City of Philadelphia, 153 F. Supp.2d 628, 655 n. 29 (E.D.Pa. 2001). The court disagrees. Federal Rule of Civil Procedure 8(a)(2) requires only that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). While plaintiff could have been more explicit in outlining these claims, the complaint did comply with the notice standard enunciated inConley v. Gibson, 355 U.S. 41, 47-48 (1952).
a. First Amendment
Plaintiff's First Amendment retaliation claim must be analyzed under the burden shifting framework outlined in Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Thus, plaintiff has the initial burden of establishing that her conduct was constitutionally protected, and that it was a "substantial" or "motivating factor" in the Commissioner's decision to dismiss her. Id.; Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000). If plaintiff carries this burden, the burden shifts to Commissioner Johnson to show "by a preponderance of the evidence that [he] would have reached the same decision even in the absence of the protected conduct."Suppan, 203 F.3d at 235 (internal citations omitted). If the Commissioner shows that he would have dismissed plaintiff even absent the protected conduct, that will "defeat plaintiff's claim." Green v. Philadelphia Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997).
The parties disagree as to the precise content of plaintiff's speech. Plaintiff claims that she told Detective Casee to "get a warrant," before hanging up the phone on him. (Defs.' Ex. 4, Pl.'s Dep. at 25; Am. Compl. ¶ 12). Defendants claim she said, "F____k you, get a search warrant." (Defs.' Ex. 9, Notice of Intention to Dismiss at 2). This difference does not affect the court's analysis. However, the fact that defendants' version of the statement was included in the Notice of Intention to Dismiss does refute their argument that Commissioner Johnson did not know of the characterization of plaintiff's speech at the time he made the decision to dismiss her from the PPD.
Public employees, like the plaintiff during her employment with the PPD, have more restricted rights under the First Amendment than general members of the public. Azzaro v. County of Allegheny, 110 F.3d 968, 975 (3d Cir. 1997) (citing Connick v. Meyers, 461 U.S. 138 (1983)); see also, Pickering v. Board of Educ., 391 U.S. 563 (1968). A public employee's speech is constitutionally protected when it "relates to matters of public concern." Sanguigni v. Pittsburgh Bd. of Pub. Educ., 968 F.2d 393, 397 (3d Cir. 1992). However, "[w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices . . ." Id. (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). Thus, speech or expression by a public employee of a private nature "is of less First Amendment concern." Id. (quoting Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985) (plurality)). Plaintiff argues that her speech related to a matter of public concern because it related to an ongoing police investigation. The court disagrees. Plaintiff's instruction to Det. Casee was of purely private concern, and is therefore not entitled to constitutional protection.
Even if plaintiff's speech was protected by the First Amendment, she has not produced sufficient evidence that it was a "substantial" or "motivating" factor in her termination. The third circuit has held that a plaintiff alleging retaliation need not show that the conduct was the "but for" cause of the adverse employment action, but must establish that it played "some substantial role in the relevant decision." Suppan v. Dadonna, 203 F.3d 228, 236 (3d Cir. 2000). The mere fact that plaintiff's statement was included in Commissioner Johnson's Notice of Intention to Dismiss does not establish that it played a substantial role in his decision to terminate her pursuant to Section 1.75 for Conduct Unbecoming an Employee. However, even if plaintiff could establish causation, it is clear that Commissioner Johnson could show that he would have terminated plaintiff for her conduct, independently of her speech. Therefore, the court finds that Commissioner Johnson is entitled to summary judgment as to this allegation.
In her Partial Motion for Summary Judgment, the plaintiff also alleges that she had a First Amendment right to consult with an attorney before turning in the gun. Plaintiff misses the point of that protection. While public employees do have the right to meet with counsel to address their grievances pursuant to the petition clause, this is not what plaintiff was attempting to do.Cipriani v. Lycoming Co. Housing Auth., 177 F. Supp.2d 303, 323 n. 17 (M.D.Pa. 2001) (citing San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)). Undisputably, plaintiff had a right to try to secure counsel before talking with the police, pursuant to the Fifth Amendment. Miranda v. Arizona, 384 U.S. 436 (1966). However, that does not justify her decision to remove evidence from her house, which she knew the police were looking for, in an effort to thwart an ongoing investigation of her son. Furthermore, plaintiff has produced no evidence that her attempt to exercise her constitutional right was a substantial factor in her dismissal from the PPD.
b. Fourth Amendment
Plaintiff's Fourth Amendment retaliation claim is essentially an attempt to reassert her First Amendment retaliation claim, on the basis of the warrant, rather than her actual statement to Det. Casee. Plaintiff did have an incontrovertible right to refuse to consent to a search of her home, and to request that the police get a search warrant before entering. However, she has not produced any evidence that this decision was a substantial factor in her dismissal from the PPD, as required under theMount Healthy burden-shifting inquiry. The record is quite clear that plaintiff was dismissed because she was arrested for obstructing justice, tampering with evidence, hindering apprehension, aiding consummation of a crime, violations of the Uniform Firearm Act, and possession of a controlled substance. Her arrest was not related to her search warrant demand, but rather resulted solely from her decision to bring a loaded weapon and nineteen vials of crack cocaine into the police station. There is absolutely no evidence that plaintiff was subject to arrest before she presented herself with the gun and cocaine at the police station. Thus, plaintiff's Fourth Amendment retaliation claim is without merit, and Commissioner Johnson is entitled to summary judgment as to this allegation.
c. Fifth Amendment
Although plaintiff's Fifth Amendment retaliation claim is vague, the court understands her claim to be that she was dismissed because she refused to give a statement to the police, either prior to her arrest or during the Internal Affairs Division (IAD) investigation. Again, it appears that she is trying to raise a First Amendment retaliation claim based upon the exercise of her right to remain silent. Plaintiff was read her Miranda warnings at the police station, as well as her criminal Gniotek warnings during the IAD interview. (Defs.' Ex. 2, IAD Investigation File at Bates 71-75). She elected to remain silent during both interviews. This silence was clearly constitutionally protected for criminal prosecution purposes. However, plaintiff has not produced sufficient evidence that her silence was a substantial factor in her dismissal from the PPD, as required under the Mount Healthy inquiry. Plaintiff elected to forego an opportunity to try to mitigate conduct unbecoming a police department employee. The clear basis for plaintiff's termination was her arrest for the behaviors charged. Therefore, Commissioner Johnson is entitled to summary judgment as to this allegation, and Count IV is dismissed with prejudice.
2. Count V — Equal Protection — Dismissed
Plaintiff's equal protection claim against Commissioner Johnson parallels her claim against the City. Without identifying herself as a member of a protected class, she alleges that the Commissioner unfairly dismissed her after her arrest. As discussed above, plaintiff has produced no evidence that she was subjected to discipline on a discriminatory basis, or that similarly situated civilian employees of the PPD were treated more favorably. Plaintiff's employment with the PPD was terminated because she was arrested, and because she engaged in Conduct Unbecoming an Employee, pursuant to Section 1.75 of the PPD Disciplinary Code. Commissioner Johnson found that there was "just cause" for her dismissal, and his decision was sustained by the Civil Service Commission on appeal. Therefore, Count V of plaintiff's amended complaint is dismissed with prejudice.
C. Claims Against Detectives Rankin and Singleton
1. Count VI — First and Fifth Amendment Retaliation — Dismissed
Plaintiff claims that Detectives Rankin and Singleton arrested her because she told them that they "could not play good-cop-bad-cop on her" and because she exercised her right to remain silent in the police station after she was given herMiranda warnings. Defendants argue that plaintiff has not produced any evidence that her arrest was due to her speech.
The Mount Healthy burden-shifting framework has been expanded to apply to First Amendment retaliation claims outside of the government employee context. Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997) (citing cases). Thus, in order to survive defendant's motion for summary judgment, plaintiff must show: 1) that she engaged in a protected activity; 2) that the detectives, as government employees, responded with retaliation; and 3) that the protected activity was the cause of the retaliation. Id. at 161. Even if plaintiff could show that her speech is entitled to First Amendment protection, she has not shown any relationship between her speech and her arrest. The detectives arrested her because she came into the police station with a loaded, semi-automatic hand gun and nineteen packets of a substance that appeared to be crack cocaine, which they knew might be related to the robbery investigation involving her son. Their arrest was based on probable cause, not because of what plaintiff may or may not have said to them. Likewise, there is no evidence that plaintiff's arrest was in retaliation for her decision to remain silent when the defendants tried to question her. Thus, Detectives Rankin and Singleton are entitled to summary judgment as to Count VI of plaintiff's amended complaint.
2. Count VII — Fourth Amendment — Dismissed
Plaintiff claims that Detectives Rankin and Singleton violated her Fourth Amendment rights by arresting her without probable cause. In support of this allegation, she engages in a careful parsing of the Pennsylvania Criminal Code for each of the charges that were filed against her. (Mem. Of Law in Opp. to Defs.' Mot. for Summ. J. at 6-12). In response, defendants argue that their arrest was based on probable cause and was reasonable under the circumstances.
The Fourth Amendment protects "[t]he right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." U.S. Const. Amend. IV. It "prohibits a police officer from arresting citizen except upon probable cause." Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995). Probable cause for an arrest exists "when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested." Id. (citations omitted). The question of whether probable cause exists for an arrest must be analyzed based upon the "objective facts available to the officers at the time of the arrest." Sharrar v. Felsing, 128 F.3d 810, 818 (3d Cir. 1997) (quoting United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984)). In § 1983 actions the probable cause inquiry is usually an issue for the jury, but the court may rule that probable cause existed as a matter of law if there is no genuine issue of material fact or any credibility conflict between the parties. Id.
In the instant case, Detectives Rankin and Singleton clearly had probable cause to arrest plaintiff at the police station. At the time of her arrest, they knew that she had just entered the building carrying a bag that contained a loaded, semi-automatic hand gun and nineteen packets of a substance that appeared to be crack cocaine. Because plaintiff refused to explain how she came into possession of the bag, which was her right, it was reasonable for the detectives to presume that she knowingly possessed the gun and purported drugs. The detectives also knew that there was an ongoing robbery investigation that implicated plaintiff's son. Under these circumstances, a reasonable person would believe that plaintiff had committed, or was in the process of committing, a criminal offense.
The fact that Judge Robbins eventually found that there was insufficient evidence to support the criminal charges against plaintiff at her preliminary hearing in the Philadelphia Court of Common Pleas, does not undermine the detectives' determination that they had probable cause at the time they arrested her. The state court's reasons for dismissing the charges are not for this court to speculate about. Because the court finds that Detectives Rankin and Singleton had probable cause to arrest plaintiff, they are entitled to summary judgment as to Count VII of the amended complaint.
Additional Claims
A. Count VIII — False Arrest Claim Against Detectives Rankin and Singleton — Dismissed
Plaintiff claims that Detectives Rankin and Singleton are liable for falsely arresting her. It is not clear from her amended complaint whether she is alleging false arrest pursuant to § 1983, as a violation of the Fourth Amendment, or pursuant to state law. In either case, the inquiry is whether plaintiff was unlawfully detained by the police. See e.g., Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988); and Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994). Thus, the claim turns on whether or not the detectives had probable cause to arrest plaintiff. Dowling, 855 F.2d at 141 (finding that the "proper inquiry in a section 1983 claim based on false arrest . . . is not whether the person arrested in fact committed the offense but whether the arresting officers had probable cause to believe the person arrested had committed the offense"); and Renk, 641 A.2d at 293 (citingFagan v. Pittsburgh Terminal Coal Corp., 149 A. 159 (1930) for the proposition that "an arrest based upon probable cause would be justified, regardless of whether the individual arrested was guilty or not"). Because the court has found that Detectives Rankin and Singleton had probable cause to arrest plaintiff, her claim of false arrest is without merit, and they are entitled to summary judgment as to Count VIII of the amended complaint.
B. Count IX — Malicious Prosecution Claim Against the Detectives — Dismissed
Plaintiff contends that she was subjected to malicious prosecution by Detectives Rankin and Singleton. In order to prevail on a claim of malicious prosecution, plaintiff must establish that: 1) the defendants initiated a criminal proceeding; 2) the proceeding terminated in plaintiff's favor; 3) the proceeding was initiated without probable cause; and 4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice. Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir. 1996) (citing Haefner v. Burkey, 626 A.2d 519, 521 (Pa. 1993). Defendants argue that even if plaintiff can establish the first and second elements of malicious prosecution, there was clearly probable cause for her arrest, and she has offered no evidence that either detective was acting out of malice or for some other improper purpose. The court agrees. Therefore, summary judgment is granted in favor of Detectives Rankin and Singleton as to Count IX of plaintiff's amended complaint. Qualified Immunity
The individual defendants claim that they are entitled to qualified immunity as to plaintiff's constitutional claims. Government officials are entitled to qualified immunity from suits brought against them under § 1983, based on their discretionary functions, as long 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). Qualified immunity is essentially "'an entitlement not to stand trial or face the other burdens of litigation.'" Bennett v. Murphy, 274 F.3d 133, 135 (3d Cir. 2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The test for qualified immunity, outlined in Saucier v. Katz, 533 U.S. 194 (2001), is whether, taken in the light most favorable to the party alleging injury, 1) the facts show the government official's conduct violated a constitutional right, and 2) the constitutional right was clearly established, based on the specific context of the case. Id. at 201. If a plaintiff fails to establish a constitutional violation, "the qualified immunity inquiry is at an end; the officer is entitled to immunity." Bennett, 274 F.3d at 133. As the court has found that none of plaintiff's claims are sufficient to establish a constitutional deprivation, the individual defendants are entitled to qualified immunity.
Conclusion
An appropriate order follows.