FLAGG v. CHEYNEY UNIVERSITY OF PENNSYLVANIA, ET AL et al

Filing 40

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 5/10/22. 5/10/22 ENTERED AND COPIES MAILED TO FLAGG AND E-MAILED.(rf, )

Case 2:21-cv-03551-HB Document 40 Filed 05/10/22 Page 1 of 7

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

:
:
:
:
:
:

v.
CHEYNEY UNIVERSITY OF
PENNSYLVANIA et al.

CIVIL ACTION

NO. 21-3551

Bartle, J.

MEMORANDUM

May 10, 2022

Plaintiff Thomas Flagg, acting pro se, brings various
claims under state and federal law against defendants:

Cheyney

University of Pennsylvania; Security, Police, Fire Professionals
of America, Local 506 (“SPFPA”); and Frank Kelly.

Before the

court are motions of each defendant to dismiss Flagg’s complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.
I
When reviewing a motion to dismiss under Rule
12(b)(6), the court “accept[s] as true all allegations in
plaintiff's complaint as well as all reasonable inferences that
can be drawn from them, and construes them in a light most
favorable to the non-movant.”

Tatis v. Allied Interstate, LLC,

882 F.3d 422, 426 (3d Cir. 2018) (quoting Sheridan v. NGK Metals
Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)).

“To survive a

motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is

Case 2:21-cv-03551-HB Document 40 Filed 05/10/22 Page 2 of 7

plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

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

A mere formulaic recitation of the elements of a cause

of action will not do.

Twombly, 550 U.S. at 555.

The factual

allegations in the complaint must be sufficient to raise a right
to relief beyond mere speculation such that the court may “draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 556 U.S. at 678 (citing Twombly,

550 U.S. at 556).
II
Flagg’s suit arises out of his termination from his
position as a Cheyney University police officer and the
circumstances around the decision of SPFPA, his union, not to
arbitrate his resulting grievance pursuant to a collective
bargaining agreement.
The following facts are accepted as true for present
purposes.

Flagg was terminated from his position as a Cheyney

University police officer following an altercation he had in
2009 with defendant Frank Kelly, a lieutenant of the same police
force.

Flagg was placed on administrative leave pending an

investigation.

He alleges that during the investigation, Kelly

along with other Cheyney University police personnel “caused key
video evidence” of their altercation to “be withheld and or

-2-

Case 2:21-cv-03551-HB Document 40 Filed 05/10/22 Page 3 of 7

suppressed.”

Cheyney terminated Flagg at the conclusion of its

investigation.
Flagg filed a grievance with SPFPA over his discharge.
SPFPA processed and evaluated Flagg’s claim despite not having
video evidence of the altercation, which he claims would have
“completely exonerated” him.

At some point, Kelly along with

the Cheyney University police chief sent a letter to SPFPA about
Flagg’s discharge in which they “attack[ed] [his] character.”
Ultimately, SPFPA declined to arbitrate Flagg’s grievance.
In this suit, Flagg alleges that Cheyney wrongfully
terminated him.

He accuses SPFPA of improperly declining to

arbitrate his discharge pursuant to the terms of a collective
bargaining agreement.

He also brings suit against Kelly over

the letter he sent to SPFPA and Kelly’s alleged role in
“spoliation” of video evidence.

To these ends, Flagg asserts in

his complaint a variety of claims under state and federal law. 1
1.
Flagg’s complaint includes the following causes of action:
“Violation of Fourteenth Amendment right of the United States
Constitution and Article 1 of The Pennsylvania Constitution to
Freedom from deprivation of Life, Liberty, and Pursuant of
Happiness”; “Violation of Substantive Due Process of Law of
Fourteenth Amendment and Article 1 of the Pennsylvania
Constitution Substantive Due Process Amendment”; “Breach of Duty
to provide Fair Representation”; “Tortious Interference In
Contractual Relations”; “Breach of Contract”; “Fraudulent and
Deceptive Trade/Business Practice”; “Violation of 42 U.S.C.
§ 1983 (Defendant Cheyney-Passhe)”; “Failure to Intervene to
Stop a Violation of Civil Rights”; “Denial of Due Process”; and
“Conspiracy under the Color of State Law to Violate Plaintiffs’
Constitutional Civil Rights and Other Right.”
-3-

Case 2:21-cv-03551-HB Document 40 Filed 05/10/22 Page 4 of 7

This is not the first time that Flagg has aired these
claims.

In November 2011 Flagg filed a petition for review in

the Delaware County Court of Common Pleas against SPFPA.

The

court transferred the petition to the Commonwealth Court of
Pennsylvania pursuant to the latter’s original jurisdiction.
Flagg’s petition to the Commonwealth Court contained
four claims.

Initially, he sued just SPFPA for violating its

duty of fair representation for failing to pursue arbitration of
his discharge grievance.

In 2014 Flagg amended the petition to

add as defendants Cheyney University and Frank Kelly.

The

Commonwealth Court described the claims he asserted in that
action as “(1) breach of the duty of fair representation against
[Cheyney University and SPFPA]; and (2) claims for tortious
interference with contractual relations against [Kelly and
SPFPA].”

At some point, he amended his petition to include a

claim against Kelly under 42 U.S.C. § 1983.
On June 25, 2020, the Commonwealth Court rejected each
of these claims, granted the defendants’ applications for
summary relief, and dismissed Flagg’s suit.

See Flagg v. Int’l

Union, Sec., Police, Fire Pros. of Am., Local 506, 641 MD 2011
(Pa. Commw. Ct. June 25, 2020).

On March 25, 2021, the Supreme

Court of Pennsylvania summarily affirmed the Commonwealth
Court’s judgment.

247 A.3d 1001 (Pa. 2021) (Mem.).

-4-

It

Case 2:21-cv-03551-HB Document 40 Filed 05/10/22 Page 5 of 7

subsequently denied his petition for rehearing.

Flagg filed his

complaint in this court shortly thereafter.
III
Each defendant has moved to dismiss Flagg’s complaint
because it is barred by principles of claim preclusion.

Claim

preclusion, otherwise known as res judicata, prevents a
plaintiff from bringing a claim against a defendant if the
plaintiff previously litigated that claim against that defendant
to a “final, valid judgment on the merits by a court of
competent jurisdiction.”

See Balent v. City of Wilkes-Barre,

669 A.2d 309, 313 (Pa. 1995).

Although claim preclusion is an

affirmative defense, a court may dismiss a complaint pursuant to
Rule 12(b)(6) if it is evident on the face of the complaint that
claim preclusion applies.

See Rycoline Prods., Inc. v. C & W

Unlimited, 109 F.3d 883, 886 (3d Cir. 1997).

Furthermore, when

reviewing defendants’ assertion of claim preclusion, the court
may take judicial notice of the record from Flagg’s Pennsylvania
court action.

See Oneida Motor Freight, Inc. v. United Jersey

Bank, 848 F.2d 414, 416 n.3 (3d Cir. 1988).
In determining whether claim preclusion applies,
28 U.S.C. § 1738 requires the court to give the same preclusive
effect to the judgment in Flagg’s prior Pennsylvania court
action that a Pennsylvania court would give it.

Turner v.

Crawford Square Apartments III, L.P., 449 F.3d 542, 548 (3d Cir.
-5-

Case 2:21-cv-03551-HB Document 40 Filed 05/10/22 Page 6 of 7

2006).

Under Pennsylvania law, claim preclusion bars a

subsequent suit if it shares four factors with the prior suit:
“an identity of issues, an identity of causes of action,
identity of persons and parties to the action, and identity of
the quality or capacity of the parties suing or being sued.”

In

re Coatesville Area Sch. Dist., 244 A.3d 373, 379 (Pa. 2021);
see also J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936, 939
(Pa. Commw. Ct. 2002).
It is apparent from the face of Flagg’s complaint-which makes specific reference to his Pennsylvania state court
case--that this suit is barred by claim preclusion.

The

Pennsylvania action culminated in a final judgment on the merits
of his claim, and both that suit and this suit relate to the
same underlying events.

Both relate to Cheyney’s termination of

Flagg, SPFPA’s handling of his grievance, and Kelly’s perceived
meddling.

A Pennsylvania court would consider Flagg’s causes of

action here to be “identical” to those which he asserted in his
prior suit because they relate to the same “subject matter” and
“ultimate issues.”

J.S., 794 A.2d at 939.

It does not matter

that Flagg asserts some new legal theories in his complaint
here.

Under Pennsylvania law, claim preclusion bars not only

claims that were actually litigated, but also “claims which
could have been litigated during the first proceeding if they
were part of the same cause of action.”
-6-

Balent, 669 A.2d at

Case 2:21-cv-03551-HB Document 40 Filed 05/10/22 Page 7 of 7

313.

Furthermore, each of the defendants Flagg named here here

was a defendant in the Pennsylvania lawsuit.

Accordingly, claim

preclusion bars Flagg’s successive action here.

For that

reason, the motions of defendants to dismiss Flagg’s complaint
will be granted.

-7-