OCASIO v. CIACH et al

Filing 13

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 8/3/17. 8/4/17 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NELSON OCASIO,

:
:
Plaintiff,
:
:
v.
:
:
MAYOR MICHAEL CIACH, COUNCIL :
PRESIDENT CHRISTINE PETERSON, :
and THE BOROUGH OF UPLAND,
:
:
Defendants.
:

CIVIL ACTION
NO. 17-cv-755

MEMORANDUM
Joyner, J.

August 3, 2017

Before the Court are Defendants’ Motion for Partial
Dismissal and Defendants’ Motion to Strike (Doc. No. 11) and
Plaintiff’s response thereto (Doc. No. 12).

For the reasons

below, Defendants’ Motion for Partial Dismissal is GRANTED IN
PART and DENIED IN PART, and Defendants’ Motion to Strike is
DENIED.
I.

Factual and Procedural Background1
This case requires us to consider the circumstances

surrounding the termination of the chief of police for the
Borough of Upland, Pennsylvania.

Plaintiff Nelson Ocasio was

1

Unless otherwise noted, the facts are taken from Plaintiff’s
Complaint. (“Compl.,” Doc. No. 1). In line with the standards
governing Fed. R. Civ. P. 12(b)(6), all factual allegations in the
Complaint are generally accepted as true. See Phillips v. Cty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).

1

appointed chief of police in January 2013, and he served in that
post until February 23, 2016.

(Compl. at ¶¶ 10, 18).

On that

date he was informed by Mayor Michael Ciach and Councilperson
Christine Peterson that he was being terminated.

Id. at ¶ 18.

The Complaint proffers two possible motivations for that firing:
first, a desire to stifle an investigation into possible criminal
behavior on the part of Ms. Peterson, and, second, racial animus.
As to the first possible motivation, Mr. Ocasio alleges
that, on February 8, 2016, he noticed that time cards from the
previous summer for an Upland Borough police officer named
Michael Irey appeared to be forged.

Id. at ¶¶ 11-15.

Mr. Ocasio

arrived at that conclusion because the time cards bore his forged
signature and because he recalled that Mr. Irey was scheduled to
be on vacation during the time period reflected on the time
cards.

Id. at ¶¶ 13-14.

That recollection was seemingly

corroborated by Mr. Ocasio’s examination of Mr. Irey’s Facebook
posts, which indicated that Mr. Irey was indeed vacationing in
North Carolina on the same days that his time cards reported him
to be at work in Pennsylvania.

Id. at ¶ 15.

Believing that Ms.

Peterson was the only person aside from himself with access to
Police Department time cards,2 Mr. Ocasio filed an Affidavit of
Probable Cause and charged Ms. Peterson with forgery, theft by

2

In addition to serving as councilperson, Ms. Peterson was
apparently also an administrative assistant for the Upland Borough
Police Department. (Compl. at ¶ 11).

2

unlawful taking and tampering with government records.
16-17.

The very next day, Mr. Ocasio was fired.

Id. at ¶¶

Id. at ¶ 18.

As to the second possible motivation behind his
firing—racial animus—Mr. Ocasio points to a track record of
racial comments allegedly made by Ms. Peterson.

In particular,

he alleges that, in conversations with numerous Upland Borough
elected officials, Ms. Peterson referred to him as “a spic,” a
“wetback,” and an “illegal Mexican.”

Id. at ¶ 19.

Mr. Ocasio

further alleges that when Ms. Peterson learned that he would
succeed then-Upland Borough Chief John Easton, an AfricanAmerican, Ms. Peterson said, “First a nigger and now a spic?”
Id. at ¶ 20.

That comment was allegedly made in the presence of

Upland Councilman Harold Peden, Councilman Edward Mitchell, and
Chester Police Chief Joseph Bail.

Id.

Plaintiff filed his Complaint on February 16, 2017.

Count I

asserts a procedural due process claim under the Fourteenth
Amendment against Mr. Ciach and Ms. Peterson in their individual
and official capacities.

Id. at ¶¶ 21-30.

Count II asserts a

claim for First Amendment retaliation under the speech and
petition clauses, also against Mr. Ciach and Ms. Peterson in
their individual and official capacities.

Id. at ¶¶ 31-46.

Count III asserts a Whistleblower Law claim against all
Defendants.

Id. at ¶¶ 47-59.

Finally, Count IV asserts a claim

against all Defendants for conspiracy as to the first three

3

counts.

Id. at ¶¶ 60-62.

Defendants waived service on March 3,

2017 and timely filed their present Motion on May 1, 2017, in
which they seek dismissal of Counts II, III, and IV along with
dismissal of all claims against Mr. Ciach and Ms. Peterson in
their official capacities.

(Doc. No. 7; Doc. No. 11).

Defendants have elected not to move for dismissal of Count I as
to Mr. Ciach and Ms. Peterson in their individual capacities.
Defendants also ask the Court to strike from the Complaint
paragraphs 19, 20, and 52, in which Plaintiff’s allegations
regarding Ms. Peterson’s racial comments appear.

(Doc. No. 11).

Plaintiff filed a timely response on May 15, 2017, in which he
stipulated and agreed that Counts II and III of the Complaint
should be dismissed.

(Doc. No. 12).

In all other respects,

Plaintiff argues that Defendants’ Motions should be denied.
II.

Id.

Motion to Dismiss

A. Standard of Review
A party may move to dismiss a complaint for failure to state
a claim upon which relief can be granted.
12(b)(6).

Fed. R. Civ. P.

In considering such a motion, a district court must

“accept as true the factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom.”

Krantz v.

Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 142 (3d Cir. 2002)
(quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).

“To

survive a motion to dismiss, a complaint must contain sufficient

4

factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”

Id. (citation omitted).

“Threadbare”

recitations of the elements of a claim supported only by
“conclusory statements” will not suffice.
omitted).

Id. (citation

Rather, a plaintiff must allege some facts to raise

the allegation above the level of mere speculation.

Great W.

Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 176 (3d
Cir. 2010) (citing Twombly, 550 U.S. at 555).

Although a

plaintiff is entitled to all reasonable inferences from the facts
alleged, a plaintiff’s legal conclusions are not entitled to
deference, and the Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.”

Papasan v. Allain,

478 U.S. 265, 286 (1986).
B. Analysis
Broadly speaking, Defendants present us with five arguments
in favor of dismissing various pieces of Plaintiff’s Complaint,
only one of which is meaningfully contested by Plaintiff in his
opposition.

Of the four uncontested arguments, two are specific

to Plaintiffs’ Whistleblower Law claim and First Amendment

5

retaliation claim.

As noted above, Plaintiff has explicitly

stipulated and agreed that those claims should be dismissed.

For

that reason alone, Count II and Count III are dismissed with
prejudice, and the Court will disregard Defendants’ substantive
arguments in favor of their dismissal as moot.
Defendants also argue that portions of Plaintiff’s Complaint
should be dismissed because (1) it fails to set forth a viable
Monell claim against either the Borough of Upland or Mr. Ciach
and Ms. Peterson in their official capacities and (2) the claims
against Mr. Ciach and Ms. Peterson in their official capacities
are duplicative of Plaintiff’s claims against the Borough of
Upland.

Plaintiff’s opposition fails to acknowledge or respond

to these two arguments in any fashion, and so we treat those
portions of Defendants’ Motion for Partial Dismissal as
uncontested.

See, e.g., Levy-Tatum v. Navient Sols., Inc., 183

F. Supp. 3d 701, 712 (E.D. Pa. 2016); Jackson v. J. Lewis Crozer
Library, No. CIV.A.07-0481, 2007 WL 2407102, at *6 (E.D. Pa. Aug.
22, 2007).

The practical effect is that all claims against the

Borough of Upland and Mr. Ciach and Ms. Peterson in their
official capacities are dismissed with prejudice.3

3

Defendants argue that Plaintiff failed to set forth a viable
Monell claim against either the Borough of Upland or Mr. Ciach and Ms.
Peterson in their official capacities. Pursuant to the Supreme
Court’s decision in Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658 (1978), a municipality, like Upland Borough here,
can be liable under § 1983 or § 1985 only when it acts on “‘a policy
statement, ordinance, regulation, or decision officially adopted and
promulgated by’ the officers of that municipality.” Langford v. City

6

Finally, Defendants argue—and Plaintiff disputes—that the
Complaint fails to allege sufficient facts to establish a
conspiracy claim.

Because this argument was contested by

Plaintiff in his response, we will more fulsomely address the
parties’ arguments below.
C. Plaintiff’s Conspiracy Claims (Count IV)
Count IV of Plaintiff’s Complaint advances three distinct
conspiracy claims, each tracking one of the underlying claims
asserted in Count I, Count II, or Count III.

Although the

Complaint is not perfectly clear about the nature of these
alleged conspiracies, the Court understands Plaintiff to be
alleging that Defendants conspired to:
(a) violate Plaintiff’s Fourteenth Amendment right to predeprivation procedural due process;
(b) violate Plaintiff’s First Amendment right to free speech
and to petition the Government for a redress of grievances;
and
(c) violate Pennsylvania’s Whistleblower Law.

of Atl. City, 235 F.3d 845, 847 (3d Cir. 2000) (quoting Monell, 436
U.S. at 690). Plaintiff has failed to offer any response to this
argument, and so all claims against the Borough of Upland and Mr.
Ciach and Ms. Peterson in their official capacities are appropriately
dismissed with prejudice. Defendants also argued that Plaintiff’s
claims against Mr. Ciach and Ms. Peterson in their official capacities
should be dismissed with prejudice on the ground that they are
duplicative of Plaintiff’s claims against the Borough of Upland.
Because the Complaint does not assert a claim against the Borough of
Upland under Count I, we deem Defendants’ duplication argument to be
applicable to Count IV only. Having received no response from
Plaintiff, conspiracy claims against Mr. Ciach and Ms. Peterson in
their official capacities are thus also dismissed for the independent
reason that they are duplicative.

7

As we have already observed, Plaintiff agreed and stipulated to
the dismissal of the claims asserted in Count II and Count III,
but he has not (at least not explicitly) waived his related
claims for conspiracy to violate his First Amendment rights and
conspiracy to violate Pennsylvania’s Whistleblower Law.

As a

threshold matter, then, we must determine whether the latter two
conspiracy claims can survive dismissal where Plaintiff has
elected not to pursue his claims regarding the underlying conduct
that Defendants allegedly conspired to commit.
Conspiracy to Violate First Amendment and Whistleblower Law
Plaintiff’s First Amendment claim arises under 42 U.S.C. §
1983, which authorizes private parties to enforce their federal
constitutional rights against defendants who act under color of
state law.

His related claim for a conspiracy to violate the

First Amendment arises under 42 U.S.C. § 1985, which authorizes a
plaintiff to bring a claim for conspiracy to violate an
individual’s civil rights in violation of § 1983.

See

Chavarriaga v. New Jersey Dep’t of Corr., 806 F.3d 210, 224 (3d
Cir. 2015).

The conspiracy claim cannot survive alone; it is

dependent on Plaintiff proving a violation of his rights under §
1983.

See Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d

799, 809 (8th Cir. 1999) (affirming dismissal of claims that
defendants conspired to violate First and Fourteenth Amendments
on the ground that the underlying claims were themselves properly

8

dismissed).

We hold, therefore, that Plaintiff’s claim for

conspiracy to violate his First Amendment rights must be
dismissed.
Plaintiff’s Whistleblower Law claim arises under the
Pennsylvania Whistleblower Law, 43 Pa. Stat. §§ 1421-28.

Civil

conspiracy to violate state law is a recognized cause of action
in Pennsylvania.

See Burnside v. Abbott Labs., 351 Pa. Super.

264, 277 (1985).

“Under Pennsylvania law, the statute of

limitations for a civil conspiracy is determined by the
Pennsylvania statute of limitations pertaining to the substantive
offense most closely related to that which the defendants were
alleged to have conspired to commit.”

Stann v. Olander Prop.

Mgmt. Co. Inc., No. CIV.A. 11-7865, 2015 WL 4505932, at *6 (E.D.
Pa. July 24, 2015) (citing Ammlung v. City of Chester, 494 F.2d
811, 814-15 (3d Cir. 1974) (internal quotation marks and
alteration omitted).

Plaintiff alleges a civil conspiracy to

violate the Pennsylvania Whistleblower Law, so the civil
conspiracy claim is subject to the same statute of limitations
that would govern his Whistleblower Law claim.

See id.

Pursuant

to 43 Pa. Stat. § 1424(a), a Whistleblower Law claim must be
brought within 180 days after the occurrence of the alleged
violation.
2016.

Plaintiff alleges that he was fired on February 23,

(Compl. at ¶ 18).

Because his Complaint was not filed

until February 16, 2017, more than 180 days after he was fired,

9

his claim for conspiracy to violate the Whistleblower Law is
time-barred and is appropriately dismissed at this juncture.
Conspiracy to Violate Fourteenth Amendment
Finally, we turn to Plaintiff’s claim for conspiracy to
violate his procedural due process rights.

Plaintiff’s

procedural due process claim, which Defendants do not attack at
this stage of the litigation, arises under 42 U.S.C. § 1983, and
his related claim for a conspiracy to violate his procedural due
process rights arises under 42 U.S.C. § 1985.
806 F.3d at 224.

See Chavarriaga,

This Court is “mindful that direct evidence of

a conspiracy is rarely available and that the existence of a
conspiracy must usually be inferred from the circumstances.”
Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184
(3d Cir. 2009) (citation omitted).

“The Court is equally mindful

that caution is advised in any pre-trial disposition of
conspiracy allegations in civil rights actions.”
(citation omitted).

Id. at 184-85

“However, the rule is clear that allegations

of a conspiracy must provide some factual basis to support the
existence of the elements of a conspiracy: agreement and
concerted action.”

Id. (citation omitted).

See also Mikhail v.

Kahn, 572 F. App’x 68, 72 (3d Cir. 2014) (“To properly plead an
unconstitutional conspiracy, a plaintiff must assert facts from
which a conspiratorial agreement can be inferred.”).
Defendants argue that Plaintiff has failed to plead any

10

facts that would establish a conspiracy to violate his civil
rights.

(Doc. No. 11, at 14).

In particular, Defendants say

Plaintiff’s Complaint is devoid of any specific factual
allegations that establish any agreement or understanding to
plot, plan or conspire to carry out a civil rights violation.
Id. at 15.

We disagree.

The Complaint alleges that on February

23, 2016, Mr. Ciach and Ms. Peterson together informed him that
he was terminated as chief of police.

(Compl. at ¶ 18).

That

allegation easily permits the natural inference that Defendants
agreed to fire Plaintiff, and it is that firing which is at the
heart of Plaintiff’s underlying § 1983 claim.

The Complaint also

includes detailed allegations that suggest racial animus on the
part of Ms. Peterson, one of the alleged conspirators.
at ¶¶ 19, 20, 52.

See id.

Because the Complaint alleges sufficient facts

from which a conspiracy could be inferred, we hold that Plaintiff
has adequately stated a claim for conspiracy to violate his
procedural due process rights.
III.

Motion to Strike
Defendants request that the Court strike three paragraphs

from the Complaint—namely, Paragraphs 19, 20, and 52.

Each of

these paragraphs contain allegations that Ms. Peterson used
racial epithets when referring to Plaintiff and others.

Under

Federal Rule of Civil Procedure 12(f), the Court is authorized to
“strike from a pleading . . . any redundant, immaterial,

11

impertinent or scandalous matter.”

Fed. R. Civ. P. 12(f).

Although courts “enjoy liberal discretion to strike pleadings
under Rule 12(f),” doing so is generally viewed as “an extreme
and disfavored measure.”

BJC Health Sys. v. Columbia Cas. Co.,

478 F.3d 908, 917 (8th Cir. 2007).

See also Yates v. Commercial

Index Bureau, Inc., 861 F. Supp. 2d 546, 552 n.8 (E.D. Pa. 2012)
(noting that Rule 12(f) motions are “not favored and usually will
be denied unless the allegations have no possible relation to the
controversy and may cause prejudice to one of the parties, or if
the allegations confuse the issues”) (citation omitted).
Defendants argue that the allegations of racial epithets are
immaterial to Plaintiff’s claims and included solely for the
purpose of embarrassing Ms. Peterson.
disagree.

(Doc. No. 11, at 18).

We

However scandalous and embarrassing the allegations

against Ms. Peterson may be, they are relevant to Plaintiff’s
claims that Defendants deprived Plaintiff of his rights without
due process, and, indeed, conspired to do so.

They may also be

relevant to Plaintiff’s demand for punitive damages.

See Compl.

at ¶ 68.
IV.

Conclusion
For the foregoing reasons, Defendants’ Motion is GRANTED in

part and DENIED in part.

To wit, all claims against Defendant

Borough of Upland and Defendants Ciach and Peterson in their
official capacities are dismissed with prejudice.

12

Furthermore,

Counts II and III of Plaintiff’s Complaint are dismissed with
prejudice.

Plaintiff’s claims in Counts I and IV against

Defendants Ciach and Peterson in their individual capacities will
be permitted to proceed, except that any claims against the
remaining Defendants for conspiracy to violate the First
Amendment or Whisteblower Act are dismissed with prejudice.
Defendants’ Motion to Strike is DENIED.
follows.

13

An appropriate Order