Lakkis v. Lahovski et al

Filing 15

MEMORANDUM AND OPINION - For the foregoing reasons, the Court will grant Defendants' motion to dismiss but also will grant Plaintiff leave to file an Amended Complaint. A separate Order follows.Signed by Honorable Robert D. Mariani on 11/5/12. (jfg)

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PETER LAKKIS

Plaintiff

v.

3:12·CV·1024
(JUDGE MARIANI)

FREDERICK LAHOVSKI and
JOECHACKE
Defendants
MEMORANDUM OPINION
I. Introduction
Before the Court is Defendants' Motion to Dismiss (Doc. 6). For the reasons set
forth below, the Court will grant Defendants' motion but will grant Plaintiff leave to file an
Amended Complaint.
II. Factual Allegations and Procedural History
Plaintiff is a police officer with the Borough of Forty Fort (Complaint, Doc. 1, at ~ 10),
and Defendants are Frederick Lahovski, the Police Chief, and Joe Chacke, the Borough
Council President. (Id. at 1Ml2-3).
Plaintiff's Complaint makes the following allegations: on March 4, 2012, "Defendants
issued an Order that specifically suppressed First Amendment speech, including but not
limited to reporting rnisconduct of the Police Chief, by mandating that Plaintiff notify the
Police Chief lin writing' before he is allowed to talk with the Mayor or any Council member."
(Id. at ~ 7). In response to this order, "Plaintiff spoke out against his free speech being

suppressed" because "he was restricted in his right as a citizen to speak with the Mayor,
who runs the Police Department, and Borough Council Members who run the town." (/d. at

11 8).
On May 21, 2012, "abiding by the [order], Plaintiff requested 'in writing' to speak with
the Mayor about upcoming borough events due to the Memorial Day Parade and centennial
celebration." (/d. at 11 9). However, Defendant Lahovski denied Plaintiffs request and
instead "ordered Plaintiff to complete illegal tasks, such as posting flyers on telephone polls
in violation of Forty Fort's own Borough Code § 6-601," and also ordered "him to canvass
the neighbor for information concerning the owner of stolen sunglasses and eye glasses,
and not do his normal Police patrol activities while all other officers did their normal Police
patrol activities." (Id. at 11 10). Plaintiff thereafter "reported such mandating of illegal
activities to a Borough Official. That same Borough Official confirmed Plaintiffs assessment
that he was being retaliated against for his Free Speech." (Id. at 11 11).
Finally, "Plaintiff, through counsel, requested that Defendants cease-and-desist
Plaintiffs free speech suppression and retaliation; and in turn and out of spite Defendants
ordered an 'internal investigation' on Plaintiff." (Id. at 11 12). Plaintiff further alleges that
Defendants Lahovski and Chacke "were acting in conspiracy to violate Plaintiffs First
Amendment rights and causing harm to Plaintiff." (ld. at 11 13).
Plaintiff brought this action under 42 U.S.C. § 1983, alleging that Defendants
retaliated against him for exercising his First Amendment free speech rights (Count I) and

2

that Defendants' "Suppression Order" unconstitutionally restricts those free speech rights

(Count II). This Court has sUbject-matter jurisdiction under 28 U.S.C. § 1331, and venue is
proper under 28 U.S.C. § 1391(b).
III. Standard of Review

A complaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege
"enough facts to state aclaim to relief that is plausible on its face." Bell At!. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must

aver '~actual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949, 173 L. Ed. 2d 868 (2009). "[W]hen presented with a motion to dismiss for
failure to state a claim, ... [the] Court must accept all of the complaint's well-pleaded facts
as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d
203, 210-11 (3d Cir. 2009) (citing Iqbal, 556 U.S. at 678). The "Collrt must then determine
whether the facts alleged in the complaint are sufficient to show that the plaintiff has a
'plausible claim for relief.'" Id. at 211.
District courts confronted by a motion to dismiss should engage in a two-step
analysis. First, the district court should accept all well-pleaded facts as true, but may reject
mere legal conclusions. Second, the district court should then determine whether the facts
as asserted, establish a "plausible claim for relief." Iqbal, 556 U.S. at 678. Thus, acomplaint
must "show' an entitlement for relief with facts, as a mere allegation that a plaintiff is entitled

3

to relief is insufficient to withstand a motion to dismiss. See Phillips v. Co. of Allegheny, 515
F.3d 224, 234-35 (3d Cir. 2008). As the Supreme Court noted in Iqbal, U[w]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief."
Iqbal, 556 U.S. at 678. This "plausibility" determination will be a "context- specific task that
requires the reviewing court to draw on its judicial experience and common sense." Id.; see
also Fowler, 578 F.3d at 210-11.

IV. Analysis
Defendants' Awareness of Plaintiffs Protected Conduct
"To state a First Amendment retaliation claim, a public employee plaintiff must allege
that his activity is protected by the First Amendment, and that the protected activity was a
substantial factor in the alleged retaliatory action." Gorum v. Sessoms, 561 F.3d 179, 184
(3d Cir. 2009) (citing Hill v. Borough of Kutztown, 455 F.3d 225,241 (3d Cir. 2006)). "The
first factor is a question of law; the second factor is a question of fact." Id (internal citations
and quotation marks omitted). Furthermore, "[i]t is only intuitive that for protected conduct to
be a substantial or motivating factor in a decision, the decisionmakers must be aware of the
protected conduct." Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002).
Plaintiff brings a First Amendment retaliation claim against Defendants Lahovski and
Chacke for various expressions of speech, including when Plaintiff "spoke out against his

i

f

i

I

I
4

I
I.

free speech being suppressed by the First!Amendment Suppression Order"1 because he

"was restricted in his right as a citizen to speak with the Mayor, who runs the Police
Department, and Borough Council Members who run the town." (CompI. at ~ 8). Likewise,
Plaintiff claims that after he "reported" Defendant Lahovski's instructions to post flyers on
telephone polls in violation of the borough code "to a Borough OfficialL that] same Borough
Official confirmed Plaintiff's assessment that he was being retaliated against for his Free
Speech." (Id. at ~ 11).
The Complaint does not state to whom Plaintiff "spoke out" or whether Defendants
were aware of Plaintiff's speech. Nor does Plaintiff identify the "Borough Official" to whom
he alleges he "reported such mandating of illegal activities." (Compl. at ~ 11). In addition,
to the extent that Plaintiff is asserting that his report of Defendant Lahovski's conduct to an
unnamed Borough Official at an unknown time was also the source of retaliation, Plaintiff
has not alleged that either Defendant was aware of his "report." Defendants could not have
retaliated against Plaintiff if they were unaware of his speech after he "spoke out" against
the "First Amendment Suppression Order" when Defendants allegedly retaliated against him
by ordering him to engage in illegal or questionable activities, or after he reported Defendant
Lahovski's alleged retaliation to a Borough Official. Therefore, neither of these two
instances of speech as alleged can Sllpport a claim of First Amendment retaliation.
1 From Defendants' brief in support of the motion to dismiss, it appears that this "Suppression Order"
applied to all members of the Forty Fort police force and was not specific to Plaintiff. Neither did the order apply to
members of the general public. (Doc. 7, at 5). Plaintiff does not disagree with this assessment of the order in his
brief in opposition, but if it is incorrect, Plaintiff should so clarity in his Amended Complaint. Thus, the Court
directs Plaintiff to state in greater detail the scope of the "Suppression Order" in his Amended Complaint.

5

Plaintiffs Speech as a Police Officer
Plaintiff also alleges that Defendant Lahovski retaliated against him when (1) Plaintiff
complied with the "Suppression Order" and requested in writing to speak with the Mayor,
and (2) when Plaintiff requested that both Defendants cease and desist in suppressing his
First Amendment rights.
"The [Supreme] Court has made clear that public employees do not surrender all
their First Amendment rights by reason of their employment. Rather, the First Amendment
protects a public employee's right, in certain circumstances, to speak as a citizen
addressing matters of public concern." Garcettiv. Cebal/os, 547 U.S. 410, 417,126 S. Ct.
1951, 1957, 164 LEd. 2d 689 (2006). If public employees speak in the course of their
employment, "the employees are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications from employer discipline." Id.
at 421, 126 S. Ct. 1951. However, if an employee speaks as a citizen on a matter of public
concern, "[t]he question becomes whether the relevant government entity had an adequate
justification for treating the employee differently from any other member of the general

f

l
I

public." Id. at 418, 126 S. Ct. 1951.
The Court construes the Complaint as asserting that Plaintiffs attempt to speak with
the Mayor was in Plaintiffs capacity as acitizen and not as a police officer. "To be
protected, the speech must implicate a matter of public concern .... Speech implicates a
matter of public concern if the content, form, and context establish that the speech involves

6

I

a matter of political, social, or other concern to the community." Miller v. Clinton Cnty., 544

F.3d 542, 548 (3d Cir. 2008) (citing Connick v. Myers, 461 U.S. 138, 146-148, 103 S. Ct.
1684,75 L. Ed. 2d 708 (1983)). For instance, speech may be a matter of public concem
when the speaker seeks to "bring to light actual or potential wrongdoing or breach of public
trust" on the part of government officials. Borden v. Sch. Dist. of Twp. of East Brunswick,
523 F.3d 153, 170 (3d Cir. 2008) (quoting Connick, 461 U.S. at 148, 103 S. Ct. 1684).2
Plaintiff avers that he "abid[ed] by" the "Suppression Order" when he requested in
writing to speak with the Mayor, but Defendant Lahovksi denied the request and retaliated
against him for making the request by assigning him to perform illegal duties. (Compl. at 11
8). This statement produces a paradox: essentially, Plaintiff asserts that though the
"Suppression Order" applied to him as a police officer of the Borough of Forty Fort in the
course of his employment, Defendant Lahovski denied Plaintiffs written request to speak as
a citizen with the Mayor. This inconsistency in Plaintiffs pleadings may possibly be
resolved by an amendment to the Complaint, but at present, the Complaint cannot be said
to state the cause of action Plaintiff would like to assert.
Furthermore, the Complaint states that Plaintiff wished to speak to the Mayor
regarding the upcoming "Memorial Day Parade and centennial celebration," (CompI. at 11 9),
and not necessarily regarding any "misconduct" on the part of either defendant. Therefore,
Plaintiffs speech - his request to speak to the Mayor - was related to Plaintiffs duties as a
2 "[I]ntemal complaints about workplace management and matters that are articulated solely because of
their personal effect on the employee are not protected speech." Garcia v. Newtown Twp., No.1 1-3190,2012 WL
1854136, at *4 (3d eir. May 22, 2012) (citing to Garcetti and Foraker).

7

police officer and does not appear to be a matter of public concern. The same is true for

Plaintiffs cease-and-desist request to Defendants. See Garcetti, 547 U.S. at 421, 126 S.
Ct. 1951 ("The controlling factor in Ceballos' case is that his expressions were made
pursuant to his duties as acalendar deputy").
Rather, these instances of speech appear to be unprotected as a matter of law
because they were related to Plaintiffs workplace duties and were made "up the chain of
command." See, e.g., Foraker v. Chaffinch,501 F.3d 231,240 (3d Cir. 2007), abrogated on
other grounds by Borough of Duryea v. Guarnieri, -- U.S. --,131 S. Ct. 2488, 180 L. Ed. 2d
408 (2011) ("Price and Warren were acting within their job duties [as state troopers and
firearms instructors] when they expressed their concerns [about safety at the firing range]
up the chain of command...."); Hill v. Borough of Kutztown, 455 F.3d 225, 242 (3d Cir.
2006) (concluding that a borough manager's reports up the chain of command about the
mayor's alleged harassment of borough employees were not protected speech because he
made the reports, as he conceded in the complaint, "as part of his duties as Manager."). 3
The Complaint also is devoid of any allegation that Plaintiff attempted to make public
his objections to the "Suppression Order" or his reports of any alleged retaliation that
Defendants engaged in against him. See Gorum, 561 F.3d at 187 (affirming district court's

3 Citing to Foraker and Hill, the Third Circuit has said "[ w]e have consistently held that complaints up the
chain of command about issues related to an employee's workplace duties-for example, possible safety issues or
misconduct by other employees-are within an employee's official duties." Morris v. Philadelphia Hous. Aufh., No.
11-3334,2012 WL 2626991, at * 2 (3d Cir. July 6,2012). "Admittedly, ... there is a social good that comes from
internal reporting of misconduct up the chain of command. The Supreme Court has decided, however, that we
should not constitutionalize management disputes between the government and its employees." /d. at *3 (internal
citations and quotation marks omitted).

8

grant of summary judgment in favor of defendant and holding that a public employee's

internal complaint is not protected by the First Amendment because "[t]here is no evidence
in the record that [the employee] even made a public statement. There is no proof that he
thought any public policy issues were at stake.").4
Though it is unclear who the intended audience was when Plaintiff "spoke out"
against the Suppression Order,5 Plaintiff filed his written request with Defendant Lahovski,
reported Defendant Lahovski's alleged retaliation to an unnamed Borough Official,6 and
sent acease-and-desist request directly to Defendants. (Compl. at 1m 8-12). There is no
allegation that Plaintiff ever made his complaints public which indicates that he considered
the speech as a matter of purely private, not public, concern. Rather, as far as the Court
can glean from the Complaint, all of Plaintiffs speech activities remained internal when he
objected to the order and complained of retaliation.

Emigh v. Steffee, 442 F. App'x 660,665 (3d Cir. 2011) (citing Gorum and finding that the plaintiff­
employee "did not indicate that he wanted the public to learn of Fulmer's purported misconduct [because] [t]he BPR
complaint was filed internally with the PSP, and handled in accordance with the PSP's internal operating
procedures."); see also Knightv. Drye, 375 F. App'x 280 (3d Cir. 2010), cert. denied, 131 S. Ct. 463,178 L. Ed. 2d
288 (2010) (affirming district court's grant of summary judgment in favor of defendants).
4

Knight's complaint up the chain of command to Officer Milligan and Police Chief Campbell is not
speech protected by the First Amendment. ... Although Knight argues that his report should be
protected by the Third Circuit's recent pronouncement in Reilly v. City ofAtlantic City, 532 F.3d
216 (3d Cir. 2008), his reliance on that case is misplaced. In Reilly, we found that the truthful
testimony by a police officer in court constituted "citizen speech" and was therefore precluded
from the "official duties" doctrine set forth in Garcetti. Reilly, 532 F.3d at 231. However, Knight's
out-of-court statements to his superiors do not fall into this category.

Knight, 375 F. App'x at 282-83 (emphasis added).
5 Construing the factual allegations in the Complaint in the light most favorable to Plaintiff, the Court
assumes the general public was the intended audience. However, there is still no showing that Defendants were
aware of Plaintiff speaking out against the "Suppression Order."
6 Though there is no allegation that this Borough Official was within the "chain of command," Plaintiff
made the report within the Borough government, not publicly.

9

I
t

I

I
I

Thus, because Plaintiffs speech pertained to his workplace duties and because the

speech remained internal at all times, as a matter of law, Plaintiffs speech was not
protected. See Gorum, 561 F.3d at 184.
Defendant Borough Council President Chacke
Plaintiff next asserts that after he requested that Defendants cease and desist their
suppression of Plaintiffs free speech rights and retaliation against him, they "ordered an
'internal investigation' on Plaintiff." (Compl. at 1f 12). The Complaint also states that
"Defendants issued" the "Suppression Order" on March 4, 2012. (Id. at 1f 7). However, the
Complaint states that the Mayor runs the Police Department," whereas the "BoroUgh
li

Council Members ... run the town." (Id. at 1f 8). Therefore, the Complaint is internally
inconsistent. It does not appear that Defendant Chacke, the Borough Council President,
had any authority to issue either the "Suppression Order" or an "internal investigation"
because those acts would fall under either the Mayor's or Defendant Lahovski's purview.
Because it appears from the Complaint that Defendant Chacke could not have taken
any action against Plaintiff, he could not have been personally involved in any actions taken
against Plaintiff, and he is, therefore, not a proper defendant in the case. See Argueta v.
United States Immigration and Customs Enforcement, 643 F.3d 60,72 (3d Cir. 2011).
However, Plaintiff will have an opportunity to amend his Complaint to allege any actions that
Defendant Chacke did take against him, or to set forth any allegations of the authority of the

10

Borough Council President to order or to engage in the actions attributed to him in the
Complaint.

§ 1983 Conspiracy Claim
Finally, to the extent that Plaintiff is alleging aconspiracy claim against the
defendants, Plaintiff must allege aconspiracy claim as a count separate and distinct from
his First Amendment claim in Count I. "In order to prevail on a conspiracy claim under §
1983, a plaintiff must prove that persons acting under color of state law conspired to deprive
him of afederal protected right." Ridgewood Bd. of Educ. v. N.E ex rei. M.E, 172 F.3d
238,254 (3d Cir. 1999). "In addition, there must be evidence of actions taken in concert by
defendants with the specific intent to violate that right." Crist v. Phelps, 810 F. Supp. 2d
703,711 (D. Del. 2011). However,"a § 1983 conspiracy claim only arises when there has
been an actual deprivation of a right." Perano v. Twp. of Tilden, 423 F. App'x 234,239 (3d
Cir. 2011 ) (citing Andree v. Ashland Cnty., 818 F.2d 1306, 1311 (7th Cir. 1987)).
Therefore, if Plaintiff wishes to pursue aseparate conspiracy claim, he must show
that Defendants Lahovski and Chacke acted in concert with the specific intent to violate his
First Amendment rights by alleging facts to show the conspiracy, the concerted action in
furtherance of the conspiracy, and Defendants' specific intent to so act.
Leave to Amend
In the event that the Court finds the Complaint to be legally deficient, Plaintiff has
requested leave to amend. (Doc. 10, at 15). The Third Circuit has held that !lif acomplaint

11

is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment
unless such an amendment would be inequitable or futile. Great W. Mining &Mineral Co.
1I

v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010) cerl. denied, 131 S. Ct. 1798, 179

L. Ed. 2d 655 (2011) (internal citations and quotation marks omitted).
Though the Complaint currently fails to state a claim upon which relief may be
granted under Plaintiffs First Amendment retaliation claim, Plaintiff may be able to allege
sufficient facts to raise such a claim if he can show that he spoke as acitizen on a matter of
public concern and that Defendants retaliated against him for that speech.
Thus, consistent with the above Opinion, the Court directs Plaintiff to make the
following amendments to his Complaint: (1) allege facts sufficient for the Court to conclude
that Defendants were aware of the speech Plaintiff engaged in related to the "Suppression
ll

Order when Defendants retaliated against him, speci'fically including when he "spoke out"
against the order and when he "reported" Defendant Lahovski's retaliatory conduct to a
Borough Official; (2) allege facts showing that Plaintiffs speech was as acitizen and not as
an employee; 7 (3) allege facts showing how Defendant Chacke was personally involved in
any actions taken against Plaintiff, given his apparent lack of authority to do so based on the
current wording of the Complaint; and (4) in a count separate and distinct from Counts I and
II, allege facts supporting the existence of a conspiracy between Defendants Lahovski and
Chacke to deprive Plaintiff of his First Amendment right of free speech.

7

These amendments should include clarifying statements as to the scope of the "Suppression Order."
12

V. Conclusion
For the foregoing reasons, the Court will grant Defendants' motion to dismiss but
also will grant Plaintiff leave to file an Amended Complaint. A separate Order follows.

,
Robert . anam
United States District Judge

13