Aspinall v. Thomas et al
Filing
17
MEMORANDUM (Order to follow as separate docket entry) re 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by John Masco, Kevin M Bishop, Jason Thomas, Ronald Thomas.Signed by Honorable Malachy E Mannion on 1/12/16. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL E. ASPINALL,
:
Plaintiff,
:
v.
:
RONALD THOMAS, JASON
THOMAS, JOHN MASCO, and
KEVIN M. BISHOP,
Defendants
CIVIL ACTION NO. 3:15-699
:
(JUDGE MANNION)
:
:
MEMORANDUM
Pending before the court is a motion to dismiss the plaintiff’s Complaint,
(Doc. 1), filed on behalf of defendants Ronald Thomas, Jason Thomas, John
Masco, and Kevin M. Bishop, for failure to state a claim upon which relief may
be granted. (Doc. 10). For the reasons that follow, the motion to dismiss will
be DENIED.
I.
RELEVANT BACKGROUND
The plaintiff, Michael E. Aspinall, served as a correctional officer from
1997 to 2007 and then a sergeant until August 2013,1 for the Wayne County
Correctional Facility in Honesdale, Pennsylvania. (Doc. 1, ¶¶ 1, 9, 50). The
1
His service was continuous except for a period of time from April 2010
to October 2012. (Doc. 1, ¶¶ 14, 19). During this time he was suspended and
later terminated as a result of criminal charges brought against him for assault
of an inmate. Id. ¶ 15. After a jury trial, he was found non-guilty, and he was
subsequently reinstated as a sergeant at the Correctional Facility. Id. ¶¶ 1719.
1
current action concerns the alleged mistreatment and hostile work
environment the plaintiff suffered as a result of defendants Ronald Thomas
and Jason Thomas’ behavior. Both Ronald and Jason Thomas (the
“Thomases”) were officers at the Correctional Facility. Jason Thomas is the
son of Ronald Thomas. Id. ¶ 3. The Thomases allegedly always disliked and
harassed the plaintiff. However, after the plaintiff was reinstated in October
2012, the Thomases continued to dislike and harass the plaintiff, so much that
the plaintiff complained to defendant John Masco, the Deputy Warden of the
Correctional Facility. Id. ¶ 26. Though the plaintiff was then transferred to a
shift “separate and apart from either of the Thomases,” the Thomases
continued to have contact with and harass the plaintiff. Id. ¶¶ 29-30. The
harassment included “belittling Plaintiff in front of staff,” telling new officers
about the plaintiff’s past criminal trial, and shouting insults and threats at the
plaintiff. Id. ¶¶ 30-31.
The plaintiff again complained about the harassment, this time to both
defendant John Masco, the Deputy Warden, and defendant Kevin Bishop, the
Warden. (Doc. 1, ¶ 32). The Thomases then escalated their harassment
against the plaintiff. Id. ¶ 33. One specific incident of the escalated
harassment occurred when Ronald Thomas followed the plaintiff into his office
and then yelled threats at him. Ronald Thomas refused to leave the office,
and ultimately the plaintiff was forced to leave his own office. Id. ¶ 34. The
plaintiff then wrote “a memo detailing the incident to both Mr. Masco and Mr.
2
Bishop,” but “no action was taken.” Id. ¶ 35. Instead, Jason Thomas became
aware of the memo and entered the plaintiff’s office to verbally harass and
threaten him. Id. ¶ 36. Other incidents of harassment occurred, but the
plaintiff “continued to fight back, speak out and challenge the abuses . . . to
both Mr. Masco and Mr. Bishop.” Id. ¶ 38. During this time, the Thomases’ as
well as defendant Bishop’s conduct undermined the plaintiff’s authority,
decision-making, and experience as a correctional officer. (Doc. 1, ¶ 39).
Specifically, the Thomases told other correctional officers working during the
plaintiff’s shift to “ignore him and instead listen to them and do things their
way,” affecting the plaintiff’s ability to delegate tasks and exercise his
authority. Id. ¶¶ 40-41. The plaintiff submitted over a dozen verbal and written
complaints to defendants Masco and Bishop, and the two took no action in
response. Id. ¶¶ 46-47. Ultimately, the plaintiff was allegedly “forced to
involuntarily resign in or around August, 2013," as a result of the harassment
and hostile work environment. Id. ¶ 50.
The plaintiff filed a Complaint in this court on April 9, 2015 alleging a
violation of his First Amendment rights under 42 U.S.C. §1983 as a result of
the defendants’ retaliatory conduct. (Doc. 1). In Count I of the Complaint, the
plaintiff claims that the Thomases’ harassment constitutes retaliation in
violation of the plaintiff’s First Amendment right to free speech. Count II
includes allegations against defendants Masco and Bishop under a theory of
supervisory liability for their knowledge and acquiescence of the Thomases’
3
alleged First Amendment retaliation. On May 1, 2015, the defendants filed a
motion to dismiss for failure to state a claim upon which relief may be granted.
(Doc. 10). The plaintiff filed an opposition to the motion on May 28, 2015.
(Doc. 13). The motion is now ripe for the court’s review.
II.
STANDARD OF REVIEW
The defendants’ motion to dismiss is brought pursuant to the provisions
of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts” language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
be sufficient to “raise a right to relief above the speculative level.” Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of”
necessary elements of the plaintiff’s cause of action. Id. Furthermore, in order
to satisfy federal pleading requirements, the plaintiff must “provide the
grounds of his entitlement to relief,” which “requires more than labels and
4
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544,
127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).
Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is justified
5
only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004).
III.
DISCUSSION
The defendants move to dismiss the complaint for failure to state a
claim on several grounds. First, the defendants move to dismiss Count I of the
complaint stating that the plaintiff failed to allege facts to support all required
elements of a §1983 First Amendment retaliation claim. They next move to
dismiss Count II on the ground that the facts do not establish Defendants
Bishop and Masco’s involvement in the alleged constitutional violation. Finally,
the defendants move to dismiss the entire complaint because all defendants
are entitled to qualified immunity. (Doc. 12, p.13). Each ground will be
discussed in turn.
A.
Count I - First Amendment Retaliation Claim
The Supreme Court has long established that a citizen’s ability to
participate in free debate on matters of public importance is “the core value
of the Free Speech Clause of the First Amendment.” Pickering v. Bd. of
Educ., 391 U.S. 563, 573 (1968); see also Connick v. Myers, 461 U.S. 138,
145 (1983); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982).
While a citizen who enters government service must forfeit the scope of some
of his freedoms, he is “nonetheless a citizen” who deserves protection from
restriction of liberties he enjoys in his capacity as a private citizen. Garcetti v.
6
Ceballos, 547 U.S. 410, 419 (2006). “So long as employees are speaking as
citizens about matters of public concern, they must face only those speech
restrictions that are necessary for their employers to operate efficiently and
effectively.” Id. at 419. Therefore, “a public employee has a constitutional right
to speak on matters of public concern without fear of retaliation.” Baldassare
v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001) (citing Rankin v. McPherson,
483 U.S. 378, 383–84 (1987)).
In order to establish a First Amendment retaliation claim, the plaintiff
must first demonstrate that “the conduct which led to the alleged retaliation
was constitutionally protected.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001). The plaintiff must next demonstrate that he suffered an “adverse
action” by the government officials such that “a person of ordinary firmness”
would be deterred from exercising his rights. Id.; Lauren W. v. DeFlaminis,
480 F.3d 259, 267 (3d Cir. 2007). Finally, the plaintiff must prove a causal link
between the alleged retaliatory conduct and the protected activity. Rauser,
241 F.3d at 333; Lauren W., 480 F.3d at 267. Here, the defendant claims that
the plaintiff failed to state a First Amendment retaliation claim because the
speech at issue is not constitutionally protected, and also because the
plaintiff’s complaint fails to establish that this speech is related to the alleged
retaliatory conduct. (Doc. 12, p. 5-8).
1.
Protected Speech Requirement
The preliminary inquiry of whether the speech at issue constitutes
7
protected speech is a question of law, not fact. Miller v. Clinton Cty., 544 F.3d
542, 548 (3d Cir. 2008). Government employees enjoy the guarantee of free
speech so long as they speak as citizens, not employees, and the speech
implicates a matter of public concern. Connick v. Myers, 461 U.S. 138, 156
(1983) (quoting Pickering v. Bd. of Educ., 205, 391 U.S. 563, 568 (1968));
Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 465 (3d Cir. 2015); Miller,
544 F.3d at 548. “[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410,
421 (2006) (emphasis added). If, however, an employee is speaking as a
citizen, the Supreme Court has outlined when such speech is of public
concern for First Amendment purposes:
Speech deals with matters of public concern when it can be fairly
considered as relating to any matter of political, social, or other
concern to the community, or when it is a subject of legitimate
news interest; that is, a subject of general interest and of value
and concern to the public.
Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotations omitted).
When conducting this inquiry, the court must examine “the content, form, and
context of a given statement, as revealed by the whole record.” Connick v.
Myers, 461 U.S. 138, 147-48 (1983). No one factor is dispositive, and the
court must take care to “evaluate all the circumstances of the speech,
including what was said, where it was said, and how it was said.” Snyder, 562
8
U.S. at 454; Miller v. Clinton Cty., 544 F.3d 542, 550 (3d Cir. 2008) ( “We can
not ‘cherry pick’ something that may impact the public while ignoring the
manner and context in which that statement was made or that public concern
expressed.”). Furthermore, “speech that relates solely to mundane
employment grievances does not implicate a matter of public concern.”
Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 467 (3d Cir. 2015). Should
the court determine, pursuant to the foregoing law, that the speech is a matter
of public concern, the court must then “balance . . . the interests of the
[employee], as a citizen, in commenting upon matters of public concern and
the interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.” Pickering v. Bd. of Educ.,
391 U.S. 563, 568 (1968). Ultimately, in order for the employee to prevail, “the
government must lack an adequate justification for treating the employee
differently than the general public based on its needs as an employer under
the Pickering balancing test.” Dougherty v. Sch. Dist. of Philadelphia, 772
F.3d 979, 987 (3d Cir. 2014) (internal quotations omitted).
In the instant action, the plaintiff was a former correctional officer at the
Wayne County Correctional Facility, and therefore, a government employee.
(Doc. 1, ¶ 1). The plaintiff alleges that defendants Ronald and Jason Thomas,
also employees at the Wayne County Correctional Facility, repeatedly
harassed him at work, and when he complained to his supervisors,
defendants Masco and Bishop, the harassment subsequently continued and
9
escalated. (Doc. 1). He further alleges that the complaints to his supervisors
constitute protected speech, and that the Thomases’ harassment is
retaliation. The plaintiff’s complaints were oral and written complaints about
the Thomases’ harassment and misconduct. (Doc.1, ¶¶ 26, 32, 35, 38, 46, 47,
52). The defendants argue that the plaintiff’s speech is not constitutionally
protected, but rather is nothing more than a private employee grievance.
(Doc. 12, p. 7-8). The plaintiff, however, claims that the “complaints are not
merely private, work-related grievances, but do, in fact, involve matters of
public concern with regard to Plaintiff’s ability to supervise inmates at a public
correctional facility.” (Doc. 13, p. 5).
As stated previously, to determine whether the speech implicates a
matter of public concern, the court must look at the content, form, and context
of the complaints by looking at the entire record. The plaintiff’s complaints
were allegedly voiced in response to harassment by the Thomases in the
workplace. The Complaint, (Doc. 1), states that the plaintiff “complained to
both Mr. Masco and Mr. Bishop over a dozen times,” and that the verbal and
written complaints described the “discriminatory and hostile work environment
created by the Thomases through threats, harassment, bullying and
retaliation.” (Doc. 1, ¶¶ 46, 47). All the plaintiff’s complaints were made solely
to defendants Masco and Bishop in a private setting, but a private setting
does not automatically foreclose a finding that the speech was of public
concern, but it is considered as part of the court’s analysis. Garcetti v.
10
Ceballos, 547 U.S. 410, 427 (2006) (The Supreme Court “reject[s] ‘the
conclusion that a public employee forfeits his protection against governmental
abridgment of freedom of speech if he decides to express his views privately
rather than publicly.’” (quoting Givhan v. Western Line Consol. Sch. Dist., 439
U.S. 410, 414 (1979)); see also Rankin v. McPherson, 483 U.S. 378, 386,
n.11 (1987) (“The private nature of the statement does not . . . vitiate the
status of the statement as addressing a matter of public concern.”). In
addition, the defendants rightly point out that the crux of all the plaintiff’s
complaints is a personal complaint concerning the hostile work environment
created by the Thomases’ abuse. (Doc. 12, p. 7-8). However, when put in
context, the privately voiced complaints not only focus on the personal attacks
the plaintiff suffered, but also relate to the effect that the Thomases’
harassment had on the plaintiff’s ability to fulfill his duties as a sergeant and
maintain order during his shifts at the correctional facility. (Doc. 1, ¶¶ 39-41).
In this respect, the public undoubtedly has an interest in the complaints, as
their tax dollars fund the correctional institution, and its functioning is central
to the country’s criminal justice system. See Brennan v. Norton, 350 F.3d 399
(3d Cir. 2003) (“Residents of the Township clearly had an interest in knowing
that their tax dollars were being spent on an asbestos contaminated
firestation that endangered the health and lives of its firefighters. . . . Quite
simply, the statements regarding exposure of public employees to hazards
such as asbestos can be fairly considered as relating to [a] matter of . . .
11
concern to the community.” (internal quotations omitted)). Despite the private
and personal nature of the plaintiff’s employee complaints, the context and
content of the complaint clearly implicate issues of prison security and
maintenance that are of significance to the public.
Therefore, the court concludes that the plaintiff’s speech in this case
implicates a matter of public concern, namely the plaintiff’s diminished ability
to maintain order and security in the Wayne County Correctional Facility as
a result of the Thomases’ conduct towards the plaintiff.
Even if the plaintiff’s comments implicate a matter of public concern,
that does not yet mean that the speech is constitutionally protected speech.
The final step in determining whether the plaintiff’s complaints are protected
speech, requires application of the Pickering balancing test discussed above.
The plaintiff’s interest as a citizen as well as the public’s interest in the speech
must be balanced against the government’s interest “as an employer, ‘in
promoting workplace efficiency and avoiding workplace disruption.’”
Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 991 (3d Cir. 2014)
(quoting McGreevy v. Stroup, 413 F.3d 359, 364 (3d Cir. 2005)). First, the
plaintiff as well as the public have an interest in the speech at issue. The
plaintiff has a personal interest in eradicating the hostile work environment
created by the Thomases, and both he and the public have an interest in the
speech because his complaints shed light onto the productivity and safety of
the work environment for corrections officers and inmates at the Wayne
12
County Correctional Facility. However, as the Third Circuit stated in Munroe,
when the speech at issue is personal in nature, with only a “tangential
relationship between the issues of public concern and the [speech’s] overall
thrust,” these factors “so minimize[ ] any public concern in the subject of [the
employee’s] expression as to tip the First Amendment balance in favor of her
employer.” Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 468 (3d Cir.
2015) (internal quotations omitted). Thus, if the focus of the speech is
personal and private, even if it is related to issues of public concern, the
employee’s and public’s interest in the speech is minimized for the purposes
of Pickering balancing. The plaintiff in this case privately lodged personal
complaints about the Thomases’ verbal harassment, and though the
complaints implicated issues of public concern tangentially, the court will only
afford plaintiff’s and public’s interest in the speech minimal weight.
As for the employer’s interest, most case-law from the Third Circuit
regarding this part of the Pickering balancing analysis focuses upon whether
the speech at issue disrupts or interferes with the working relationship
between the employee and his co-workers, the harmony of the work place,
and whether the speech serves as an impediment on the performance of the
employee’s duties. See, e.g., Rankin v. McPherson, 483 U.S. 378, 388 (1987)
(“Interference with work, personnel relationships, or the speaker's job
performance can detract from the public employer's function; avoiding such
interference can be a strong state interest.”); Dougherty v. Sch. Dist. of
13
Philadelphia, 772 F.3d 979, 991 (3d Cir. 2014); Baldassare v. New Jersey,
250 F.3d 188, 198 (3d Cir. 2001). “[T]he state interest element of the test
focuses on the effective functioning of the public employer's enterprise.”
Rankin, 483 U.S. at 388. However, despite the focus on whether a disruption
has or will occur as a result of the speech, “[i]t is against [Third Circuit]
precedent to find against an employee where the disruption ‘was primarily the
result, not of the plaintiff's exercise of speech, but of . . . attempts to suppress
it.’” Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 992 (3d Cir. 2014)
(quoting Czurlanis v. Albanese, 721 F.2d 98, 107 (3d Cir.1983)). In this case,
the Thomases’ harassment occurred prior to the plaintiff’s speech, and the
facts in the Complaint demonstrate that the harassment escalated after the
complaints. (Doc. 1, ¶ 33). The escalated harassment is the alleged retaliatory
conduct. According to the Complaint, the only disruption of working
relationships or of workplace harmony is a result of the retaliatory conduct
itself, not the speech. Dougherty, 772 F.3d at 992. The functioning of the
correctional facility was affected primarily by the Thomases’ alleged retaliatory
actions that created a hostile work environment and disrupted the chain of
command amongst correctional officers at the prison. Therefore, the court
assigns no weight to the government’s interest in maintaining workplace
efficiency and avoiding disruption. The government’s interest weighed against
the employee and public’s interest, tips ever so slightly in favor of the plaintiff
at this stage of the litigation. Thus, the court concludes that the plaintiff’s
14
speech is constitutionally protected, and not, as the defendants claim, an
attempt to “constitutionalize an employee grievance.” (Doc. 12, p.8).
2.
Causal Link Between Retaliatory Conduct and Speech
Next, the defendants contend that the alleged retaliatory conduct by the
Thomases was not related to the plaintiff’s speech. (Doc. 12, p. 6). In defense
of this assertion, the defendants solely state the following:
Mr. Aspinall was harassed by the Thomases to the point that
this[sic] First Amendment Rights were violated because he
complained about being harassed by the Thomases. This
obviously makes no logical sense.
(Doc. 12, p. 7). The defendants appear to argue that the harassment, or
retaliatory conduct, began prior to the alleged protected speech, and therefore
did not occur as a result of the speech. That point may have been well taken
except that the defendants fail to note that the Complaint includes facts that
establish an escalation in harassment after the plaintiff lodged oral and written
complaints about the Thomases’ conduct. (Doc. 1, ¶¶ 32-34); (Doc. 13, p. 5).
The Complaint also includes a factual allegation that “Jason Thomas became
aware of the Plaintiff’s . . . memo, and, in response, stormed into the
sergeant’s office” and proceeded to subject the plaintiff to a barrage of insults
and offensive statements. (Doc. 1, ¶¶ 35-36). Thus, facts set forth in the
Complaint sufficiently establish a causal relationship between the plaintiff’s
protected speech and the subsequent harassment by the Thomases.
Because the Thomases subjected the plaintiff to similar harassment prior to
the speech, the court notes that only the harassment that occurred after the
15
plaintiff lodged complaints and only misconduct determined an escalation of
the previously described harassment has been considered at this stage of the
litigation for this First Amendment retaliation claim.
In conclusion, the court finds that the plaintiff’s Complaint includes
factual allegations sufficient to state a plausible claim for First Amendment
retaliation against the Thomases. The court will therefore deny the
defendants’ motion to dismiss for failure to establish a First Amendment
retaliation claim on the grounds that the speech at issue was not
constitutionally protected and that the speech was not related to the alleged
retaliatory conduct.
B.
SUPERVISORY CAPACITY OF DEFENDANTS MASCO AND BISHOP
The defendant further moves to dismiss the plaintiff’s claims against
Masco, Deputy Warden, and Bishop, Warden, on the ground that the
“Complaint fails to allege sufficient facts from which to infer that the the[sic]
Warden and Deputy Warden . . . were aware of, but indifferent to, the violation
of the Plaintiff’s First Amendment rights.” (Doc. 12, p. 9).2
Section 1983 of the United States Code provides a cause of action
when two elements are satisfied: (1) “the conduct complained of was
2
The defendants’ point heading in section 2 of the argument section of
the brief refers to claims and parties that are completely distinct from and not
present in this case. (Doc. 12, p. 8). Though the remainder of this section
contains the correct party names and claims, the court suggests more care
in the future as the error lended confusion to both the plaintiff and the court.
16
committed by a person acting under color of state law”; and (2) “this conduct
deprived a person of rights, privileges, or immunities secured by the
Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535
(1981). Furthermore, in a §1983 action, a government official may not be held
liable for the unconstitutional actions of their subordinates under a theory of
respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Bistrian v.
Levi, 696 F.3d 352 (3d Cir. 2012). Government officials are only liable for their
own unconstitutional conduct. Iqbal, 556 U.S. at 676.
The Third Circuit has identified two methods by which a government
official may be found liable under a theory of supervisory liability. First,
“liability may attach if [a supervisor], with deliberate indifference to the
consequences, established and maintained a policy, practice or custom which
directly caused the constitutional harm." Barkes v. First Corr. Med., Inc., 766
F.3d 307, 316 (3d Cir. 2014) (internal quotations omitted), rev’d on other
grounds sub nom. Taylor v. Barkes, 135 S. Ct. 2042 (2015). Second, a
supervisor will be held liable if “he or she participated in violating the plaintiff's
rights, directed others to violate them, or, as the person in charge, had
knowledge of and acquiesced in the subordinate's unconstitutional conduct.”
Id. (internal quotations omitted). The defendants’ interpretation of the
applicable law with regard to supervisory liability is only partially accurate and
is incomplete. The defendants assert that “supervisory liability under §1983
may be imposed where the supervisor was personally involved in the alleged
17
constitutional violation, or where the supervisor was deliberately indifferent to
the risk of a constitutional violation.” (Doc. 12, p. 10 (citing A.M. v. Luzerne
County Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). The case that
the defendants rely upon, A.M. v. Luzerne County Juvenile Detention Center,
does not at all state what the defendants contend, and, is consistent with the
two abovementioned methods set forth in Barkes. Therefore, the defendants’
argument that the plaintiff failed to allege that Mr. Masco and Mr. Bishop
“were personally involved in violating Aspinall’s First Amendment rights” is a
flawed and incomplete analysis of whether the two are liable under a theory
of supervisory liability.
The court will determine whether the plaintiff pled facts sufficient to
establish supervisory liability by applying the two methods outlined above
rather than the defendants’ interpretation of the law. First, to determine
whether the supervisor, “with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which directly caused
the constitutional harm,” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316
(3d Cir. 2014), the court must apply a four part test, as follows:
The plaintiff must identify a supervisory policy or practice that the
supervisor failed to employ, and then prove that: (1) the policy or
procedures in effect at the time of the alleged injury created an
unreasonable risk of a constitutional violation; (2) the
defendant-official was aware that the policy created an
unreasonable risk; (3) the defendant was indifferent to that risk;
and (4) the constitutional injury was caused by the failure to
implement the supervisory practice or procedure.
18
766 F.3d 307, 317 (3d Cir. 2014) (citing Sample v. Diecks, 885 F.2d 1099,
1118 (3d Cir. Pa. 1989); Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir.
2001)).3 The plaintiff has failed to allege any facts regarding a policy or
practice that defendants Masco and Bishop, as supervisors, have in place or
failed to employ. Therefore, the facts fail to establish supervisory liability
under the first method.
As stated previously, the second method provides that if a supervisor
“participated in violating the plaintiff's rights, directed others to violate them,
or, as the person in charge, had knowledge of and acquiesced in the
subordinate's unconstitutional conduct,” then he may be held liable. Barkes,
Inc., 766 F.3d at 316; see also Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988) (“A defendant in a civil rights action must have personal
3
Since the Supreme Court’s holding in Ashcroft v. Iqbal, 556 U.S. 662
(2009), the Circuit Courts have attempted to identify its effect on establishing
supervisory liability under the first method outlined above. The Third Circuit
has held that “under Iqbal, the level of intent necessary to establish
supervisory liability will vary with the underlying constitutional tort alleged.”
Barkes v. First. Corr. Med., Inc., 766 F.3d 307, 319 (3d Cir. 2014). The
Barkes court interpreted the intent necessary for supervisory liability in an
Eighth Amendment context, but explicitly declined to address “the question
whether and under what circumstances a claim for supervisory liability derived
from a violation of a different constitutional provision remains valid.” Id. at 320.
Because this case does not involve an Eighth Amendment claim and the Third
Circuit has yet to address what level of intent is necessary to establish
supervisory liability in a First Amendment retaliation action, this court will
continue to apply the abovementioned four-part test established in Sample
and adopted in Barkes to determine whether a policy or practice that caused
the constitutional violation subjects an official to supervisory liability.
19
involvement in the alleged wrongs . . . . Personal involvement can be shown
through allegations of personal direction or of actual knowledge and
acquiescence.”). In the defendants’ brief, they state that the “Complaint does
not allege that the Warden and Deputy Warden were personally involved,”
and therefore the two defendants cannot be liable under a theory of
supervisory authority. (Doc. 12, p. 10). The defendants, however, fail to
address all prongs of the second method of supervisory liability that establish
requisite “personal involvement.” Specifically, the defendants do not examine
whether the plaintiff sufficiently alleged facts establishing that defendants
Masco and Bishop had knowledge of and acquiesced to the Thomases’
unconstitutional conduct. The plaintiff alleges that both Masco and Bishop, as
Deputy Warden and Warden of the correctional facility, have supervisory
authority over and were in charge of the Thomases. (Doc. 1, ¶¶ 60-61). In
addition, the Complaint also includes numerous factual allegations
establishing that the plaintiff informed the two supervisors of the Thomases’
harassment and alleged retaliatory conduct. Id. ¶¶ 35, 46, 47, 65. Taken to
be true, these facts sufficiently demonstrate that Masco and Bishop had
knowledge of the Thomases’ retaliatory conduct. The plaintiff further alleges,
despite their knowledge of the harassment and hostile work environment
created by the Thomases, Masco and Bishop did not take any action. (Doc.
1, ¶¶ 35, 38, 47, 48, 68). This inaction coupled with Mr. Masco and Mr.
Bishop’s actual knowledge of the complaints sufficiently establishes
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knowledge and acquiescence, as required to satisfy the second method of
supervisory liability. A.M. v. Luzerne County Juvenile Det. Ctr., 372 F.3d 572,
586 (3d Cir. Pa. 2004) (“A.M.'s evidence that they took little or no action to
protect him is sufficient to present a genuine issue of material fact as to their
knowledge of and acquiescence in the conduct of the child-care workers.”).
Therefore, the plaintiff has alleged sufficient facts to support a claim against
defendants Masco and Bishop in their supervisory role, to withstand the
defendants’ motion to dismiss.
C.
QUALIFIED IMMUNITY FOR ALL DEFENDANTS
The defendants finally argue that all claims should be dismissed
because all defendants are entitled to qualified immunity. This argument rests
upon the defendants’ belief that the Thomases’ workplace harassment clearly
“did not impugn any constitutional right.” (Doc. 12, p. 14).
The common law privilege of qualified immunity protects public officials
who have undertaken discretionary acts from suit "to protect them ‘from
undue interference with their duties and from potentially disabling threats of
liability.'" Elder v. Holloway, 510 U.S. 510, 514 (1994) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 806 (1982)); Wright v. City of Philadelphia, 409 F.3d
595, 599 (3d Cir. 2005) (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)).
But the immunity may be overborne under a two-prong analysis. Pearson v.
Callahan, 555 U.S. 223, 232 (2009); Saucier v. Katz, 533 U.S. 194, 201–02,
abrogated in part by Pearson, 555 U.S. 223; Curley v. Klem, 499 F.3d 199,
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206 (3d Cir. 2007); Williams v. Bitner, 455 F.3d 186, 190 (3d Cir. 2006).
Courts must ask: (1) "Taken in the light most favorable to the party asserting
the injury, do the facts alleged show the officer's conduct violated a
constitutional right?" Saucier, 533 U.S. at 201; Pearson, 555 U.S. at 232;
Wright, 409 F.3d at 600; and (2): "whether the right was clearly established."
Saucier, 533 U.S. at 201; Pearson, 555 U.S. at 232; Wright, 409 F.3d at 600.
The "‘contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.'" Saucier, 533 U.S.
at 201 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). If there
was a violation of a constitutional right and the right was clearly established,
then qualified immunity does not apply. Courts "should be permitted to
exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the
circumstances of the particular case." Pearson, 555 U.S. at 236.
The defendants’ argument here focuses on the first prong of the inquiry:
whether their conduct violated a constitutional right. As the foregoing analysis
demonstrates, this court has already concluded that the plaintiff’s Complaint
includes sufficient factual allegations to establish a First Amendment violation.
Therefore, the Complaint satisfies the first prong of the qualified immunity
inquiry, and the court need not reiterate its previous findings.
As for the second prong–whether the right was clearly established–the
defendants simply state that “there is no conceivable way” the defendants
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could have known that the Thomases’ harassment as well as Masco’s and
Bishop’s inaction constituted a violation of the plaintiff’s First Amendment
rights. (Doc. 12, p. 14). Without providing any case-law or further support to
demonstrate whether the right was clearly established, the defendants urge
this court to conclude that the defendants deserve qualified immunity status.
The Supreme Court has established, and this Circuit has affirmed, the
principle that the defendant bears the burden of demonstrating qualified
immunity, as it is a defense. Crawford-El v. Britton, 523 U.S. 574, 595 (1998);
Thomas v. Independence Twp., 463 F.3d 285, 293 (3d Cir. 2006) (“[T]he
burden of pleading a qualified immunity defense rests with the defendant, not
the plaintiff.”). Since the defendants have not provided any support to prove
the second prong of the qualified immunity inquiry, the court concludes that
they are not entitled to qualified immunity at this stage in the litigation.
Because the facts alleged in the Complaint establish that the
defendants’ conduct violated the plaintiff’s First Amendment rights, fulfilling
the first prong of qualified immunity in favor of the plaintiff, and the defendants
have failed to demonstrate that the right was not clearly established, the court
cannot conclude that the defendants are entitled to qualified immunity.
IV.
CONCLUSION
For the foregoing reasons, the court concludes that the plaintiff’s
Complaint includes factual allegations sufficient to state a plausible First
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Amendment retaliation claim against both the Thomases and defendants
Masco and Bishop. Thus, the defendants’ motion to dismiss will be DENIED.
An appropriate order shall follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: January 12, 2015
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2015 MEMORANDA\15-0699-01.wpd
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