BEATTY v. OHIOVILLE BOROUGH et al

Filing 77

MEMORANDUM OPINION granting Defendants' Motion for Summary Judgment. Order to follow. Signed by Judge David S. Cercone on 3/18/16. (jmc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NEVIN S. BEATTY,

)
)
Plaintiff,
)
)
v.
)
)
OHIOVILLE BOROUGH, JOHN
)
SZATKIEWICZ, MARK SMILEK,
)
PAUL STEFF, KARL ANTHONY,
)
RICHARD DECKER, ROBERT WARD, )
DENISE COX, ROBERT OURS, and
)
KENNETH DOUGHTY,
)
)
Defendants.
)

2:14cv67
Electronic Filing

MEMORANDUM OPINION
March 18, 2016
I.

INTRODUCTION

Presently before the Court is the June 5, 2015 motion for summary judgment (ECF No.
58) and the August 14, 2015 motion for sanctions (ECF No. 70) filed, pursuant to Federal Rules
of Civil Procedure 56(a) and 37(b), respectively, by Ohioville Borough (“Borough”), John
Szatkiewicz (“Mayor Szatkiewicz”), Mark Smilek (“Chief Smilek”), Paul Steff (“Solicitor
Steff”), Karl Anthony (“Mayor Anthony”), Richard Decker (“Councilman Decker”), Robert
Ward (“Councilman Ward”), Denise Cox (“Councilwoman Cox”), Robert Ours (“Councilman
Ours”), and Kenneth Doughty (“Councilman Doughty”) (collectively, “Defendants”).
Defendants seek judgment as a matter of law with respect to all claims1 stated in the July 25,

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In his brief in opposition to Defendants’ motion for summary judgment (ECF No. 72), Plaintiff
abandons his Fourteenth Amendment claim at Count III of his second amended complaint (ECF

2014 second amended complaint (ECF No. 21) filed by Nevin S. Beatty (“Plaintiff). This Court
exercises subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question) and 1343
(civil rights). After careful consideration of the motions, the memoranda of the parties, and the
entire record, the Court will grant Defendants’ motion for summary judgment, and deny
Defendants’ motion for sanctions.

II.

PROCEDURAL AND FACTUAL BACKGROUND

On July 9, 2009, Plaintiff began his employment with the Borough as a probationary,
part-time police officer. (ECF Nos. 61 at ¶ 1; 73 at ¶ 1). Upon completion of his probationary
period, Plaintiff was elevated to the position of a regular, part-time police officer. (ECF Nos. 61
at ¶ 4; 73 at ¶ 4). While employed in this position, Plaintiff was approached by Borough
Secretary Maureen Hapach in July 2012. (ECF Nos. 61 at ¶ 7; 73 at ¶ 7). Ms. Hapach informed
Plaintiff that she had reason to believe that then-Police Chief Ronald Lutton had been submitting
falsified payroll records to the Borough. (ECF Nos. 61 at ¶ 6; 73 at ¶ 6). Plaintiff reviewed the
payroll records, and informed Ms. Hapach that he would contact the District Attorney of Beaver
County, Pennsylvania, as well as the Pennsylvania State Police, because he did not believe it
appropriate for him or the Borough police department to conduct a full investigation of the police
chief. (ECF Nos. 61 at ¶¶ 10, 13; 73 at ¶¶ 10, 13).
On August 21, 2012, Plaintiff contacted the District Attorney of Beaver County and
Pennsylvania State Police regarding the information provided to him by Ms. Hapach. (ECF Nos.
61 at ¶ 14; 73 at ¶¶ 14, 129; 76 at ¶ 129). Ms. Hapach was subsequently contacted by the
No. 21). See FACTUAL AND PROCEDURAL BACKGROUND, infra, at 6. In light of the
abandonment, the Court will dismiss that claim.
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Pennsylvania State Police, at which point she provided the payroll documents to Pennsylvania
State Trooper Joseph O’Layer. (ECF Nos. 61 at ¶¶ 19 – 20; 73 at ¶¶ 19 – 20, 132 – 33; 76 at ¶¶
132 – 33). The week following his contact with the Pennsylvania State Police, Plaintiff informed
Councilman Decker, Councilman Ward, Councilman Doughty, then-Assistant Police Chief
Smilek, and Solicitor Steff of his actions regarding the payroll records. (ECF Nos. 61 at ¶¶ 22 –
24; 73 at ¶¶ 22 – 24). Solicitor Steff did not agree with Plaintiff’s decision to refer the matter to
outside authorities. (ECF Nos. 16 at ¶ 24; 73 at ¶ 24). Nonetheless, Borough council suspended
Mr. Lutton, and promoted Smilek to acting chief of police. (ECF Nos. 61 at ¶ 25; 73 at ¶ 25).
Councilman Doughty expressed gratitude for Plaintiff’s initiation of an investigation into
the payroll records. (ECF Nos. 73 at ¶ 119; 76 at ¶ 119). Councilmen Doughty, Decker, and
Ward also requested that Plaintiff conduct his own, separate investigation of the payroll issue.
(ECF Nos. 73 at ¶¶ 135 – 37; 76 at ¶¶ 135 – 37). Plaintiff spent several weeks conducting his
investigation, and reviewed all documentary evidence available. (ECF Nos. 73 at ¶ 136; 76 at ¶
136). Plaintiff never produced a formal, written report of the results of his efforts. (Id.). He did,
however, relay his findings to Councilman Decker. (ECF No. 59-16 at 32).
On January 16, 2014, Plaintiff filed a complaint (ECF No. 1) in this Court, pursuant to 42
U.S.C. § 1983, against the Borough, Mayor Szatkiewicz, and Chief Smilek. Plaintiff claimed
that he had been denied adequate notice and an opportunity to be heard regarding various
suspensions from duty and other disciplinary actions taken against him since his report of Mr.
Lutton’s conduct, in violation of the Fourteenth Amendment. Plaintiff amended this complaint
on February 5, 2014 (ECF No. 5), in order to add a count against the Borough, Mayor
Szatkiewicz, and Chief Smilek for retaliation in violation of the First Amendment.

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Mayor Anthony replaced Mayor Szatkiewicz on January 1, 2014. (ECF Nos. 61 at ¶ 109;
73 at ¶ 109). In March 2014, Mayor Anthony recommended that Borough Council indefinitely
suspend Plaintiff based upon numerous alleged lapses in performance resulting in recent
suspensions from duty. (Id.). There was no evidence in Plaintiff’s personnel filed that indicated
Plaintiff had been reprimanded or disciplined prior to reporting Mr. Lutton. (ECF No. 73 at ¶
138). Nonetheless, Borough Council ultimately followed Mayor Anthony’s recommendation of
indefinite suspension. (ECF Nos. 61 at ¶ 109; 73 at ¶ 109). Ms. Hapach left her position with
the Borough as both Secretary and Treasurer on April 25, 2014. (ECF Nos. 61 at ¶ 72; 73 at ¶
72).
Plaintiff filed a second amended complaint (ECF No. 21) on July 25, 2014, adding
several parties as Defendants, and including another count for retaliation in violation of the First
Amendment as it related to his right to access the courts. Following a period of discovery,
Defendants filed the present motion for summary judgment (ECF No. 58) on June 5, 2015.
Defendants also filed a motion for sanctions (ECF No. 70) on August 14, 2015. In his opposition
to Defendants’ motion for summary judgment, Plaintiff abandoned his Fourteenth Amendment
claim at Count III of his second amended complaint. (ECF No. 72 at 16). The remaining issues
have been fully briefed (ECF Nos. 59 – 61, 71 – 72, 74 – 76), and are ripe for disposition.

III.

LEGAL STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted
if the “movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The moving party has the initial burden of proving to
the district court the absence of evidence supporting the non-moving party’s claims. Celotex
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Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates. 482 F.3d 641, 647 (3d Cir. 2007);
UPMC Health Sys. v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). The burden
then shifts to the non-movant to come forward with specific facts showing a genuine issue for
trial. Fed. R. Civ. P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d
Cir. 1989) (the non-movant must present affirmative evidence – more than a scintilla but less
than a preponderance – which supports each element of his claim to defeat a properly presented
motion for summary judgment).
The non-moving party must go beyond the pleadings and show specific facts by affidavit
or by information contained in the filed documents (i.e, depositions, answers to interrogatories,
and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S.
at 322. See also Saldana v. Kmart Corp., 260 F.2d 228, 232 (3d Cir. 2001). The non-moving
party “must present more than just bare assertions, conclusory allegations or suspicions to show
the existence of a genuine issue.” Garcia v. Kimmell, 381 F.App’x 211, 213 (3d Cir. 2010)
(quoting Podobnik v. United States Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)).
When considering a motion for summary judgment, the Court is not permitted to weigh
the evidence or to make credibility determinations, but is limited to deciding whether there are
any disputed issues and, if there are, whether they are both genuine and material. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must consider the evidence, and all
reasonable inferences which may be drawn from it, in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S 574, 587 (1986). See also El
v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).

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IV.

DISCUSSION

A. First Amendment Retaliation – Freedom of Speech
At Count I of Plaintiff’s second amended complaint, it is argued that Plaintiff was
subjected to several disciplinary actions – and ultimately termination – solely as a result of
reporting Mr. Lutton’s potential falsification of Borough payroll records to the District Attorney
of Beaver County and Pennsylvania State Police. (ECF No. 21 at 9 – 10). In their present
motion for summary judgment, Defendants counter by arguing that not only is there no evidence
to connect Plaintiff’s discipline and termination to his report of Mr. Lutton’s conduct, but that
even if there had been retaliation, Plaintiff’s conduct was not shielded by the First Amendment.
(ECF No. 59 at 8 – 13).
It is well-established that a government employer “may not discharge an employee on a
basis that infringes that employee’s constitutionally protected interest in freedom of speech.”
Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 465 (3d Cir. 2014) (quoting Rankin v.
McPherson, 483 U.S. 378, 383 (1987)). The unencumbered debate of issues of public
importance is a core value of First Amendment jurisprudence. Id. (citing Pickering v. Bd. of
Educ., 391 U.S. 563, 573 (1968)). Public employees do not completely surrender their First
Amendment rights as a function of government employment. Id. (citing Garcetti v. Ceballos,
547 U.S. 410, 417 (2006)). However, public employers are still employers, and the
government’s need to monitor and evaluate the efficiency and effectiveness of its employees – as
any other employer – necessitates certain limitations upon an employee’s freedom. Id. at 465 –
466 (citing Garcetti, 547 U.S. at 418; Miller v. Clinton Cnty., 544 F.3d 542, 547 (3d Cir. 2008)).
Thus, a First Amendment retaliation claim requires proof that: (1) an employee engaged
in speech protected by the First Amendment; and (2) the employee’s speech was a substantial or
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motivating factor in alleged retaliatory action. Munroe, 805 F.3d at 466 (3d Cir. 2014) (citing
Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 986 (3d Cir. 2014)). “The first factor is a
question of law; the second factor is a question of fact.” Gorum v. Sessoms, 561 F.3d 179, 184
(3d Cir. 2009) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006)). If these
factors are established, the burden shifts to the government employer to prove that the same
action would have been taken irrespective of the employee’s speech. Munroe, 805 F.3d at 466.
With respect to the first factor, an employee’s speech is protected by the First
Amendment if: (1) the employee spoke as a citizen, and not as an employee, (2) “the speech
involved a matter of public concern,” and (3) “the government lacked ‘adequate justification’ for
treating the employee differently than it would a member of the general public.” Munroe, 805
F.3d at 466 (quoting Dougherty, 772 F.3d at 987). These three inquiries are threshold
considerations. Fulmer v. Pa., 2011 WL 915846 at * 6 (W.D. Pa. Mar.16, 2011) (citing Hill, 455
F.3d at 241). The Court will first look to whether Plaintiff spoke as a citizen, as opposed to as an
employee. The parties’ central dispute, here, turns upon whether or not the act of reporting Mr.
Lutton’s conduct to the District Attorney of Beaver County and Pennsylvania State Police may
properly be considered one of Plaintiff’s duties as a Borough police officer.
The Supreme Court of the United States has held that public employees speaking
“pursuant to their official duties,” do not receive First Amendment protection. Dougherty, 772
F.3d at 987 (quoting Garcetti, 547 U.S. at 421). If a public employee’s conduct constitutes
nothing more than one of his or her “daily professional duties,” then it is distinguishable for First
Amendment purposes, because it is not “the kind of activity engaged in by citizens who do not
work for the government.” Id. at 988 (quoting Garcetti, 547 U.S. at 422). What may be
considered speech pursuant to official duty is a practical inquiry based upon the circumstances of
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one’s employment. Id. It is a mixed question of law and fact. Foraker v. Chaffinch, 501 F.3d
231, 240 (3d Cir. 2007) abrogated on other grounds by Borough of Duryea, Pa. et al. v.
Guarnieri, 564 U.S. 379, 131 S.Ct. 2488 (2011)). To this end, the Third Circuit Court of
Appeals frequently looks to whether a government employee was required to take their speech
up the chain of command, whether speech was related to special knowledge or experience gained
through routine or de facto job duties, whether the speech was within the employee’s designated
responsibilities, or whether the employee’s speech was made in furtherance of his or her
designated duties, even if the speech was not a part of said duties. Dougherty, 772 F.3d at 988;
Kimmet v. Corbett, 554 F.App’x 106, 111 (3d Cir. 2014).
Presently, the facts of record demonstrate that it was Ms. Hapach who discovered Mr.
Lutton’s payroll irregularities. (ECF No. 59-17 at 26 – 27). She had suspected for some time
that Mr. Lutton – the then-chief of police – was engaged in criminal activity. (ECF No. 59-17 at
27, 30, 34). Ms. Hapach knew Plaintiff as a police officer for the Borough, and her experience
working with him left the impression that he conducted himself in that role “by the book.” (Id.).
Consequently, Ms. Hapach reached out to Plaintiff during one of his work shifts. (Id.). Ms.
Hapach trusted Plaintiff to take charge of the matter in his professional capacity as a police
officer. (ECF No. 59-17 at 28, 30). Ms. Hapach did not report the information to any outside
parties, and believed that Plaintiff would take the issue up the chain of command to Borough
Council. (ECF No. 59-17 at 30 – 31).
However, Plaintiff did not immediately inform his superiors about Mr. Lutton. Plaintiff
reviewed the payroll documents with Ms. Hapach and determined – in his professional judgment
– that there was probable cause to charge Mr. Lutton with a crime. (ECF No. 59-16 at 24 – 27).
Yet, he did not believe that he could continue to investigate the matter personally due to a
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potential conflict of interest. (ECF No. 59-16 at 27). As such, he forwarded the matter onto
other local law enforcement agencies. (Id.). He then reported his actions to a few of his
superiors. Plaintiff did not contact any other parties, or the press.
Plaintiff argues that the above chain of events evidences that when reporting Mr. Lutton’s
potentially criminal behavior to the District Attorney of Beaver County and Pennsylvania State
Police, he was exercising his First Amendment right to speech as a citizen. In support, Plaintiff
notes that he did not at first report Ms. Hapach’s concerns up the chain of command, he did not
conduct an investigation due to a lack of express authority and a conflict of interest, and he
referred the matter to outside agencies with which the Borough police department had no
relevant history of cooperation. (ECF No. 72 at 3 – 11). As to Plaintiff’s first point, the
evidence clearly shows that Plaintiff did not initially report to his superiors before contacting the
District Attorney of Beaver County and Pennsylvania State Police. In light of the sensitive
nature of the issue, the Court can appreciate why Plaintiff did not go up the chain of command
before initiating the investigation. This is only one of several factors that the Court must
consider when determining whether Plaintiff acted as a citizen or as an employee. Kimmet, 554
F.App’x at 111. The most critical question for this Court is “‘whether the speech at issue is itself
ordinarily within the scope of an employee’s duties.’” Flora v. Cnty. of Luzerne, 776 F.3d 169,
178 (3d Cir. 2015) (quoting Lane v. Franks, 134 S.Ct. 2369, 2379 (2014)).
With respect to Plaintiff’s contention that no investigation occurred pursuant to
Plaintiff’s routine duties, the Court finds the evidence of record to dictate otherwise. As an
initial matter, the Borough’s Police Department Policy and Procedure Manual states that “[i]t
shall be the duty of every Police Officer to see to the enforcement of all criminal and traffic laws
of the Commonwealth of Pennsylvania, and all the Ordinances of the Borough of Ohioville, and
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to preserve order and prevent violations of the law, and to arrest violators thereof.” (ECF No.
74-14 at 3). Despite Plaintiff’s assertion to the contrary, there is no evidence of a requirement
that Plaintiff obtain permission from his superiors prior to investigating a direct report of
criminal activity. Even the section of the police manual regarding probationary police officers
makes no mention of such a requirement. (ECF No. 59-4 at 16).
Indeed, during deposition testimony, Plaintiff explained that when Solicitor Steff
questioned the propriety of Plaintiff’s decision to contact the District Attorney of Beaver County
and Pennsylvania State Police, Plaintiff’s response was that: “I said that it was my call. I told
him that it was my call because I’m the one with the ability to enforce the laws.” (ECF No. 5916 at 39). Further, when questioned about why Plaintiff had not reported to any Borough
officials – such as the mayor – prior to contacting outside agencies about Mr. Lutton’s conduct,
Plaintiff testified that he decided not to because “[i]t was an investigation that was being
initiated.” (ECF No. 59-16 at 26). “Normally we wouldn’t communicate with anyone, such as
the mayor, about an investigation.” (Id.).
This evidence – even when viewed in the light most favorable to Plaintiff – points to the
initiation of a criminal investigation pursuant to Plaintiff’s duties as a police officer. Even if
declining to go up the chain of command prior to initiating the investigation was not typical2 of

2

To the extent Plaintiff claims that there is no history of Borough police working with outside
agencies to investigate matters of corruption in local government, it strains credulity to believe
that Borough police do not work with the District Attorney of Beaver County or Pennsylvania
State Police as a function of their duties. The evidence of record shows that Plaintiff is aware of
at least one instance during his tenure in which the Borough police department was asked to
work with the District Attorney of Beaver County with respect to a criminal investigation. (ECF
Nos. 61 at ¶¶ 61 – 63; 73 at ¶¶ 61 – 63). Plaintiff’s assertion, here, is not sufficient to
demonstrate that by requesting the assistance of the District Attorney of Beaver County and
Pennsylvania State Police, Plaintiff was engaging in speech as a ‘citizen.’
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Plaintiff’s daily duties, the facts show that Plaintiff’s actions fell in line with his general
responsibilities as a Borough police officer – to enforce the laws and address crime. See Fulmer,
2011 WL 915846 at * 8 (More general responsibilities are not beyond the scope of official duties
for First Amendment purposes.). Moreover, the utilization of external assistance (i.e. the District
Attorney of Beaver County and Pennsylvania State Police), while perhaps beyond the
expectations of Plaintiff’s formal job description, does not place such action beyond the scope of
Plaintiff’s duties. Foraker, 501 F.3d at 242 (citing Garcetti, 547 U.S. at 424 – 25).
Inasmuch as Plaintiff cites a conflict of interest as a reason that an investigation did not –
and could not – occur, Plaintiff provides no explanation for the implication that a conflict of
interest assessment cannot be a part of the investigatory process or be conducted pursuant to a
law enforcement officer’s duties. Plaintiff’s own deposition testimony indicates that even the
Pennsylvania State Police reassigned the investigation of Mr. Lutton’s case to multiple officers
due to potential conflicts of interest. (ECF No. 59-16 at 30). A transfer of an investigation from
one law enforcement agency to another due to a conflict of interest does not convert the initial
investigation into speech by a citizen. Indeed, such action suggests that Plaintiff’s speech was
made in furtherance of his law enforcement duties, even if he believes such speech was not an
explicit aspect of his duties. Kimmet, 554 F.App’x at 111 (citing Foraker, 501 F.3d at 243).
What the evidence of record shows is that Ms. Hapach contacted Plaintiff in his
professional capacity as a police officer3 to report a possible ongoing crime. Plaintiff reviewed
the payroll documents presented to him, and his professional judgment and experience brought
him to the conclusion that probable cause existed to charge Mr. Lutton with a crime. Plaintiff
then determined that his investigation of a superior could present a conflict of interest and give
3

Plaintiff and Ms. Hapach were not friends at this point in time. (ECF No. 59-16 at 23).
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others the impression that the investigation was biased. Plaintiff, therefore, took the matter
directly to the District Attorney of Beaver County and Pennsylvania State Police in furtherance
of the investigation he initiated when he reviewed the payroll records with Ms. Hapach.
The above conduct clearly illustrates that Plaintiff relied on knowledge and experience
accumulated as a police officer and employee of the Borough to conclude that a crime had likely
been committed, that he could not continue to investigate it, and that in order for the criminal
investigation to continue, he would need to contact other law enforcement agencies. Viewed in
the light most favorable to Plaintiff, the evidence of record and deposition testimony demonstrate
that: (1) Plaintiff’s speech (i.e. reporting the crime to the District Attorney of Beaver County and
Pennsylvania State Police) related to his specialized knowledge and experience as a police
officer and Borough employee; (2) Plaintiff’s duties as a police officer included investigating all
criminal laws of the Commonwealth of Pennsylvania (i.e. Mr. Lutton’s conduct); and (3) that
due to the perceived conflict of interest, Plaintiff’s speech to the District Attorney of Beaver
County and Pennsylvania State Police was made in furtherance of his duty to address criminal
activity brought to his attention in his capacity as a police officer.
The Court, therefore, holds that Plaintiff’s speech was not made as a citizen, but pursuant
to, and in furtherance of, his duties as a police officer. There is no need to go through the
remaining factors for determining whether or not Plaintiff’s speech was protected by the First
Amendment. Foraker, 501 F.3d at 243. Incidentally, the Court is compelled to note that the
exposure of abusive or criminal activity by a government official, such as that committed by Mr.
Lutton, is of considerable significance; however, the Supreme Court has stated that there is not a
“constitutional cause of action behind every statement a public employee makes in the course of
doing his or her job.” Garcetti, 547 U.S. at 425 – 26. The Court must, therefore, grant summary
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judgment in favor of Defendants with respect to Count I of Plaintiff’s second amended
complaint.
B. First Amendment Retaliation – Right of Access to Courts
At Count II of Plaintiff’s second amended complaint, it is argued that Plaintiff suffered
retaliation in the way of adverse employment actions – and eventual termination – by Defendants
in response to his filing of his initial and first amended complaints. (ECF No. 21 at 10 – 11). In
their motion for summary judgment, Defendants reply by arguing that because Plaintiff was
speaking as a public employee, he was not entitled to First Amendment protection. (ECF No. 59
at 8 – 13).
The Supreme Court of the United States has found that “when a public employee sues a
government employer under the First Amendment’s Speech Clause, the employee must show
that he or she spoke as a citizen on a matter of public concern.” Guarnieri, 131 S.Ct. at 2493
(citing Connick v. Myers, 461 U.S. 138, 147 (1983)). As this Court has already determined that
Plaintiff did not speak as a citizen, but as a public employee pursuant to, and in furtherance of,
his duties as a police officer, summary judgment must be granted in favor of Defendants at
Count II of Plaintiff’s second amended complaint.
C. Motion for Sanctions
Defendants seek sanctions against Plaintiff due to the alleged violation of this Court’s
May 29, 2015 order (ECF No. 56) granting Defendants’ motion to compel supplemental
disclosures (ECF No. 51). The Court originally ordered that copies of all texts and emails
between Plaintiff and Ms. Hapach from January 1, 2012 through the date of the order be
provided to Defendants. The Court also ordered that Plaintiff’s phone and personal computer be
made available for forensic examination and review of all texts and emails between Plaintiff and
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Ms. Hapach from January 1, 2012 though the date of the order. Defendants claim that neither of
this Court’s directives was followed by Plaintiff. Defendants ask this court to compel Plaintiff to
comply with the May 29, 2015 order, and reimburse Defendants for any costs associated with
searching Plaintiff’s phone and personal computer. In light of the Court’s decision to grant
summary judgment in favor of Defendants as to all remaining claims at Counts I and II of
Plaintiff’s second amended complaint, Defendants’ motion for sanctions will be dismissed as
moot.
V.

CONCLUSION

Based upon the forgoing, and viewing all record evidence in the light most favorable to
Plaintiff, the Court finds that Plaintiff has not demonstrated that he was speaking as a citizen
when he initiated the investigation of criminal activity by his former police chief, Mr. Lutton,
with the District Attorney of Beaver County and Pennsylvania State Police. Accordingly,
Defendants’ motion for summary judgment will be GRANTED, and Defendants’ motion for
sanctions will be DENIED. An appropriate order will follow.

s/ David Stewart Cercone
David Stewart Cercone
United States District Judge
cc.

Jonathan M. Gesk
Joel S. Sansone
Bernard P. Matthews, Jr.
Erica L. Laughlin

(Via CM/ECF Electronic Mail)

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