CLARK et al v. COLWYN BOROUGH et al

Filing 27

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 2/12/2013. 2/12/2013 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MAURICE J. CLARK, SR.,
et al.

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v.
COLWYN BOROUGH, et al.

CIVIL ACTION

NO. 12-3668

MEMORANDUM
McLaughlin, J.

February 12, 2013

This suit arises from alleged constitutional and state
law violations committed by Colwyn Borough municipal officials
and Colwyn Borough, itself.

Each of the five plaintiffs in this

action brings claims against the following defendants: Colwyn
Borough, Deputy Police Chief Wendell Reed, former Colwyn Borough
Police Officer Trevor Parham, and Colwyn Borough Council
President Tonette Pray.

Only certain of those claims are

pertinent to the Court’s present decision.

In particular,

plaintiff Maurice Clark, Sr. brings a § 1983 supervisory
liability claim against Reed and Pray for Fourth Amendment
deprivations allegedly committed by Parham.

The other four

plaintiffs, Kevin Banks, Sr., Bryant Sterling, Clinton Craddock,
and Wesley Seitz, all of whom were members of the Colwyn Borough
Police Department during the events at issue (“Officer
Plaintiffs”), assert claims against Parham, Reed, and Pray under
the Pennsylvania Whistleblower Law.

The defendants have moved to

dismiss the above-referenced claims under Federal Rule of Civil

Procedure 12(b)(6).

The defendants have also moved to sever into

a separate suit all claims brought by the Officer Plaintiffs.1
The Court will grant Parham’s motion to dismiss the
Whistleblower claims brought against him by Sterling, Craddock,
and Seitz, but will deny the defendants’ motions to dismiss the
other Whistleblower claims and Clark’s supervisory liability
claim.

The Court will also deny without prejudice the

defendants’ motions to sever the claims of the Officer
Plaintiffs.

I.

Factual Allegations2
The following is a brief recitation of only those facts

relevant to the instant motions to dismiss.

1

In addition to the Whistleblower Law claims, the Officer
Plaintiffs assert § 1983 claims against Colwyn Borough, Reed, and
Pray for alleged due process violations relating to their removal
from active duty on the police force, and Craddock brings a First
Amendment claim against those same three defendants.
Parham has filed his own motion for partial dismissal and
for severance, while Colwyn Borough, Reed, and Pray have filed a
joint motion to dismiss and sever.
2

The facts are drawn from the allegations in the Second
Amended Complaint (“SAC”). The Court accepts as true all wellpleaded facts in the SAC and draws all reasonable inferences in
favor of the non-moving parties, while disregarding any legal
conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d
Cir. 2009).
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A.

Maurice Clark, Jr.
On two separate occasions in the summer of 2011, Trevor

Parham, then an officer with the Colwyn Borough Police
Department, arrested and placed in jail 64-year-old Maurice
Clark, Jr., a private citizen.

Parham did so despite lacking a

reason to arrest Clark in either instance.

In each of the two

reports Parham filled out following his arrests of Clark, he
falsely stated that Clark had threatened to fight him and cited
Clark for disorderly conduct.

SAC ¶¶ 13-36.

Parham continued to monitor Clark during the ensuing
months.

Numerous times during the fall of 2011, Parham drove up

and down the block on which Clark lived, sometimes slowing down
as he passed Clark’s residence and giving Clark “dirty looks.”
Additionally, shortly after roll call at the police station on
November 8, 2011, Parham announced to his fellow officers that,
if they saw Clark, they should “lock him up” and that Parham
would take care of the paperwork.

Other officers who were

present understood Parham to mean that they should arrest Clark
on sight, whether or not they had justification for doing so.
Id. ¶¶ 37, 40, 49-50, 66-67.
Clark complained about Parham’s conduct to Colwyn
Borough officials, including Deputy Chief Reed and Council
President Pray.

Reed and Pray failed to discipline Parham for

his conduct, though, and even went so far as to take adverse

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actions against other officers who attempted to report or stop
Parham’s improper behavior.

B.

Id. ¶¶ 41, 183.

Officer Plaintiffs
Officers Banks, Sterling, and Craddock were all present

when Parham gave his November 8 directive.

Seitz, who was a

lieutenant in the department, learned of Parham’s instruction at
some point after it was issued.

Banks and Sterling both

complained to Deputy Chief Reed about the impropriety of Parham
instructing other officers to arrest Clark without cause.

They,

Craddock, and Seitz also reported other instances of Parham’s
misconduct to Reed or others in the department.

Id. ¶¶ 49-50,

57, 59, 66-67, 71-74, 87, 104-05, 108, 148, 158.
By that point, the Colwyn Borough Police Department had
broken into two factions.
Pray.

One was helmed by Parham, Reed, and

Because the Officer Plaintiffs had complained about

Parham, they were now viewed as members of the opposition.

After

each of the Officer Plaintiffs complained to Reed and others
about Parham’s misconduct, he was subjected to retaliation by the
Parham/Reed/Pray faction and was eventually removed from active
duty with the police department.

Id. ¶¶ 51-60, 69-70, 77-81, 88,

134-45, 148, 157-76.
Banks was terminated by the Colwyn Borough Council on
December 30, 2011, without prior notice or a hearing.

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Two weeks

earlier, Reed had been overheard saying, “Kevin Banks was the
cause of the problem, and I will get that little son of [a] bitch
anyway I can!!!”

On January 10, 2012, Reed then placed Sterling

on immediate administrative leave and informed him that this
action was being taken because the mayor of Colwyn Borough had
ordered an investigation into a traffic stop that Sterling had
conducted the previous November.

When Sterling spoke to the

mayor three days later, however, the mayor told Sterling that he
was unaware of any such investigation.

On May 30, 2012, Reed

similarly notified Craddock that he was being removed from the
schedule, and Craddock was suspended without a hearing.

Id.

¶¶ 58, 60, 77-79, 143-45 (alteration omitted).
Lieutenant Seitz was terminated after conducting an
investigation in late April or early May 2012 into allegations
that Parham had tased a minor while in police custody.

During a

meeting with Pray, Reed, and another Borough Council member that
took place after the close of Seitz’s investigation, Pray stated
that they should not inform the mayor about the tasing incident
and that they should downplay it as much as possible.

Seitz

responded that Parham had engaged in criminal conduct and that he
would not participate in any cover-up of such activity.
Following that meeting, the Borough Council twice placed Seitz on
administrative leave.

Each time, the mayor intervened and

ordered Seitz to return to duty.

On August 2, Pray finally

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terminated Seitz without notice or a pre-termination hearing.
Id. ¶¶ 149-61, 167-72, 176.
In addition, after Banks lodged his first complaint
against Parham, Parham instituted a new “community policing”
policy, whereby an officer was assigned to do foot patrol every
two hours.

Banks was the only officer assigned to foot patrol

under this policy.

Parham admitted to several other officers

that he was punishing Banks with foot patrol because Banks was
friends with Clark.

When Banks complained to Reed about the foot

patrol assignment and Parham’s November 8 order, Reed did not
take any action in response.

Reed later denied Banks’ requests

for time off without any justifiable reason.

II.

Id. ¶¶ 50-54, 57.

Analysis
The defendants assert several arguments in favor of

dismissing certain of the plaintiffs’ claims.

The chief

arguments collectively raised in their motions are as follows:
(1) Count II, Clark’s § 1983 supervisory liability claim against
Reed and Pray, should be dismissed because it is redundant of
Count III, Clark’s claim against Colwyn Borough pursuant to
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); (2) the
Pennsylvania Whistleblower Law claim brought by Banks against
Parham, Reed, and Pray should be dismissed as untimely; and
(3) Counts VIII, X, XIII, and XV, the Whistleblower claims raised

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by the Officer Plaintiffs against Parham, Reed, and Pray, should
be dismissed for failure to state a claim.

The defendants also

contend that all claims asserted by the Officer Plaintiffs should
be severed into a separate suit.
The majority of the defendants’ arguments are
unpersuasive.

The only claims that the Court will dismiss are

the Whistleblower claims of Sterling, Craddock, and Seitz against
Parham.

The Court also denies without prejudice the defendants’

motions to sever.

Each of the defendants’ main arguments, as

well as ancillary arguments raised in their briefs, is more fully
addressed below.

A.

Supervisory Liability Claim Against Reed and Pray
Count II of the SAC alleges that Reed and Pray are

liable under § 1983 for Parham’s alleged infringement of Clark’s
Fourth Amendment rights, based on a theory of supervisory
liability.

The defendants are correct that Count II does not

state a claim against Reed and Pray for direct participation in
those Fourth Amendment violations.3
3

Rather, the SAC contends

Although Count II states that Reed and Pray knew of
Parham’s “tendency to act unlawfully” and “acquiesced in . . .
Parham’s conduct,” the SAC is devoid of any allegations that Reed
and Pray were actually aware that Parham would falsely arrest
Clark before it happened or knew of the arrests during their
occurrence. See SAC ¶¶ 41-42, 182-83. Section 1983 liability
predicated on acquiescence in wrongdoing must be coupled with
“‘actual knowledge’” of the unlawful conduct. Evancho v. Fisher,
423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1988)).
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that Reed and Pray are liable, as “policy developers, makers and
enforcers,” for maintaining inadequate training, hiring,
supervisory, and disciplinary procedures and a policy of
silencing Parham’s critics within the Colwyn Borough Police
Department.

SAC ¶¶ 182-83.

Clark claims that these actions

inculcated a climate of unlawful conduct within the department
and directly led to Parham’s illegal arrests of Clark.
Reed and Pray move to dismiss Count II, arguing that it
is essentially a Monell claim for maintenance of a policy
creating constitutional harm and is, therefore, duplicative of
Count III, an explicit Monell claim against Colwyn Borough.
is an inadequate basis on which to obtain dismissal.

This

The Court

of Appeals for the Third Circuit has stated that individual
defendants can, in certain circumstances, be held liable under
§ 1983 for their role in establishing and maintaining an injurycausing policy, practice, or custom.

A.M. ex rel. J.M.K. v.

Luzerne Cnty. Juvenile Detention Ctr., 372 F.3d 572, 586 (3d Cir.
2004).

The defendants do not cite any authority for the

proposition that such a claim may or must be dismissed simply
because the complaint also contains a similar or identical claim
against a governmental entity.
The closest the defendants come is a citation to
Kentucky v. Graham, in which the Supreme Court noted that Monell
paved the way for suits seeking damages and injunctive relief

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directly from a local government, thereby obviating the need to
bring official-capacity suits against individual officials within
the municipality.

Borough/Reed/Pray Br. at 9 (citing Graham, 473

U.S. 159, 167 n.14 (1985)).

Putting aside that Reed and Pray are

being sued in their individual capacities, not their official
ones,4 the fact that Monell made suits against individual
policymakers unnecessary does not render such claims nonactionable.

Accordingly, the motion to dismiss Count II based on

its redundancy with Count III is denied.

B.

Whistleblower Law Claims
Parham, Reed, and Pray move to dismiss the Pennsylvania

Whistleblower Law claims brought by the Officer Plaintiffs.

They

argue that Banks’ claim runs afoul of the statutory limitations
period and that all four of the plaintiffs fail to state a claim
against any of the three defendants.

1.

Timeliness of Banks’ Whistleblower Law Claim

The Pennsylvania Whistleblower Law states that a civil
action for a violation of that statute must be filed “within 180
days after the occurrence of the alleged violation.”
4

43 Pa.

See SAC ¶¶ 9, 11. For that matter, the plaintiffs claim
in the SAC and clarify in their briefing that they are only suing
Parham in his individual capacity. Id. ¶ 10; Pls.’ Opp. to
Parham Mot. to Dismiss at 19. Parham’s motion to dismiss all
official-capacity claims against him is, therefore, denied as
moot.
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Stat. § 1424(a).

Parham, Reed, and Pray argue that Banks’

Whistleblower claim was not filed within 180 days of his alleged
statutory violation: termination from the Colwyn Borough Police
Department on December 30, 2011.

Banks did not file a

Whistleblower claim until June 28, 2012, 181 days after he was
released from service.
The plaintiffs respond that, although Banks was
terminated on December 30, he did not receive notice of his
termination on that date.

The SAC alleges that Banks was fired

“without notice or a hearing,” leaving it unclear when Banks
learned of his termination.

SAC ¶ 60.

Moreover, the plaintiffs

offer as an exhibit the minutes of the Colwyn Borough Council
meeting at which the Council voted to release Banks from his
service on the police force.

Although the minutes reflect that a

vote was taken to terminate a “probationary police officer,” the
officer’s name is not given.5

Pls.’ Opp. to Borough/Reed/Pray

5

The Court may consider the minutes from the Colwyn Borough
Council’s meeting on a motion to dismiss, as the minutes appear
to be a matter of public record. Buck v. Hampton Twp. Sch.
Dist., 452 F.3d 256, 260 (3d Cir. 2006); 5B Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.
2004).
The plaintiffs also submit an affidavit from Banks, in which
he states that he did not actually learn of his termination until
January 2 or 3, 2012. The Court may not consider such an
affidavit without converting the defendants’ motions to dismiss
into motions for summary judgment. See Albright v. Virtue, 273
F.3d 564, 570 (3d Cir. 2001). The Court declines to so convert
the defendants’ motions and will not consider Banks’ affidavit in
assessing the timeliness of his Whistleblower claim.
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Mot. to Dismiss, Ex. 1.

The plaintiffs essentially argue that it

is impossible to resolve at this stage when Banks could have
learned of his termination and it would be premature to dismiss
Banks’ Whistleblower claim on statute of limitations grounds.
The Court agrees.

It is true that the Pennsylvania

Whistleblower Law states that an action must be filed “within 180
days after the occurrence of the alleged violation,” and not 180
days after notice of the alleged violation.
§ 1424(a) (emphasis added).

43 Pa. Stat.

On the other hand, Pennsylvania

courts employ the discovery rule, which permits tolling of a
limitations period during the time that an injury is
undiscoverable through reasonable diligence.

Dalrymple v. Brown,

701 A.2d 164, 167 (Pa. 1997); see also Lyons v. Emerick, 187 F.
App’x 219, 221 n.3 (3d Cir. 2006) (per curiam).

The defendants

have not offered any authority addressing, much less rejecting,
application of the discovery rule to the 180-day period for
filing a Whistleblower suit.
such authority on its own.

Nor has the Court uncovered any
At this point, the Court is not

persuaded that the Whistleblower Law is beyond the reach of such
an equitable tolling principle.
Considering the allegations in this case, the SAC sets
forth plausible grounds for application of the discovery rule to
Banks’ claim.

The assertions in the SAC are consistent with a

finding that, even if Banks exercised due diligence, he would not

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have been made aware of his termination on December 30, 2011.
The defendants’ motions to dismiss Banks’ claim for failure to
comply with the statute of limitations is accordingly denied
without prejudice.

The defendants may again raise this defense

at a later stage of these proceedings.

2.

Failure to State a Claim6

The Pennsylvania Whistleblower Law states as follows:
No employer may discharge, threaten or otherwise
discriminate or retaliate against an employee regarding
the employee’s compensation, terms, conditions,
location or privileges of employment because the
employee or a person acting on behalf of the employee
makes a good faith report or is about to report,
verbally or in writing, to the employer or appropriate
authority an instance of wrongdoing or waste.
43 Pa. Stat. § 1423(a).

The Court rejects the defendants’

various challenges to the Whistleblower claims against Reed and
Pray, and finds that the Officer Plaintiffs have all stated
plausible claims of Whistleblower Law violations against those
two defendants.

Banks has also made out a viable Whistleblower

claim against Parham.
6

In his motion to dismiss, Parham also argues that this
Court lacks subject matter jurisdiction over the Whistleblower
Law claims of the Officer Plaintiffs. At oral argument, Parham’s
counsel clarified that he had first made that argument in prior
briefing before the Officer Plaintiffs had amended the complaint
to include constitutional due process claims. 11/27/12 Hr’g Tr.
at 33. He conceded that Parham no longer objected to the Court’s
jurisdiction to adjudicate the state law Whistleblower counts,
only the adequacy of the claims as pled. Id. That being the
case, the Court will deny as withdrawn Parham’s motion to dismiss
those claims based on lack of subject matter jurisdiction.
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The Court will, however, dismiss the Whistleblower Law
claims made by Sterling, Craddock, and Seitz against Parham.
None of these three plaintiffs alleges that Parham himself
engaged in retaliation against him.

Despite this obvious defect,

the plaintiffs argue that the SAC, when “viewed in a light most
favorable to Plaintiffs, establishes that Defendants Pray, Reed
and Parham were acting in concert and in furtherance of each
other’s interests.”

Pls.’ Opp. to Parham Mot. to Dismiss at 18.

The plaintiffs have not, however, argued that Pray, Reed, and
Parham were part of a conspiracy to violate the Whistleblower
Law, such that illegal actions of one may be imputed to the
others.

It may be, as the plaintiffs contend, that Reed and Pray

retaliated out of loyalty to Parham or to benefit him.

That does

not establish that Parham participated in conduct deemed unlawful
by the Pennsylvania Whistleblower Law.

3.

Punitive Damages

In their briefing, the defendants argued that punitive
damages are not available under the Pennsylvania Whistleblower
Law and that the plaintiffs’ request for such damages should be
dismissed.

The plaintiffs have given in on this point.

See

Pls.’ Opp. to Parham Mot. to Dismiss at 19; 11/27/12 Hr’g Tr. at
4.

The Court will, therefore, grant as uncontested the

defendants’ motions to dismiss the claims for punitive damages

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under that statute.

C.

Severance of Claims by Officer Plaintiffs
Finally, the defendants argue that all of the claims

asserted by the Officer Plaintiffs should be severed from Clark’s
claims and brought in a separate suit.

The defendants contend

that the Officer Plaintiffs’ constitutional and Whistleblower
claims do not arise out of the same “transactions or occurrences”
as those forming the basis for Clark’s Fourth Amendment and state
law claims, and that they cannot be joined together in one suit
under Federal Rule of Civil Procedure 20(a).

The Court will deny

the defendants’ requests without prejudice.
Even if the Court were to sever the claims brought by
the Officer Plaintiffs, it would still consolidate discovery in
the two cases, which would promote the interests of efficiency
and judicial economy.

Indeed, at oral argument, counsel for

Parham stated that it “might not be a bad idea” to single-track
discovery on all claims presently contained in the SAC, and
counsel for the other defendants acknowledged that doing so
“would be more efficient possibly.”

11/27/12 Hr’g Tr. at 28-29.

At the very least, the defendants have not persuasively argued
that unification of discovery would prove harmful.

In fact, the

defendants’ chief rationale for severance, as articulated in
their briefs, is that joint trial of all claims would be unfairly

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prejudicial and confusing.

Those concerns are not yet ripe.

There is time to revisit the issue of separate trials if and when
this action advances to that stage.

III. Conclusion
For the foregoing reasons, the defendants’ motions to
dismiss and for severance are granted in part and denied in part.
An appropriate order issues separately.

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