Myers v. City of Wilkes-Barre

• Decision Date: 23 March 2020
• Docket Number: Civil No. 3:18-CV-00042
• Citation: 448 F.Supp.3d 400
• Parties: Phillip MYERS and Daniel Duffy, Plaintiffs, v. CITY OF WILKES-BARRE, PA, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

448 F.Supp.3d 400

Phillip MYERS and Daniel Duffy, Plaintiffs,

v.CITY OF WILKES-BARRE, PA, et al., Defendants.

Civil No. 3:18-CV-00042

United States District Court, M.D. Pennsylvania.

Signed March 23, 2020

Mark B. Frost, Ryan Lockman, Mark B. Frost & Associates, Philadelphia, PA, for Plaintiffs.

Drew P. McLaughlin, Mark W. Bufalino, Elliott Greenleaf & Dean, Wilkes-Barre, PA, John G. Dean, Matthew G. Boyd, Elliott Greenleaf & Dean, Scranton, PA, for Defendants.

MEMORANDUM

JENNIFER P. WILSON, United States District Court Judge

This is a First Amendment retaliation claim brought by two police officers with the Wilkes-Barre, Pennsylvania police department ("WBPD" or "the department"). Plaintiffs, Phillip Myers ("Myers") and Daniel Duffy ("Duffy"), allege that they were subjected to retaliation because of actions they took in their roles as president and vice president of the WBPD branch of the Police Benevolent Association ("the union")—the labor union that represents WBPD officers. The case is before the court on the Defendants’ motion for summary judgment. For the reasons that follow, the motion is granted in part and denied in part.

PROCEDURAL HISTORY

Plaintiffs initiated this case on January 5, 2018 by filing a complaint against the City of Wilkes-Barre ("the city") and individual Defendants Tony George ("George"), Marcella Lendacky ("Lendacky"), and Ronald Foy ("Foy"). (Doc. 1.) The complaint raises a claim for First Amendment retaliation against the individual defendants and a separate municipal liability claim for First Amendment retaliation against the city. (Id. ¶¶ 79–85.) The individual defendants are sued in both their individual and official capacities. (Id. at 1.)

Defendants filed a motion to dismiss the complaint on February 21, 2018. (Doc. 8.) United States District Judge Robert D. Mariani granted the motion in part on January 15, 2019. (Docs. 44–45, 47.) Judge Mariani dismissed the Plaintiffs’ punitive damages claim against the city and dismissed Plaintiffs’ official capacity claims against Defendants George and Lendacky, but denied the motion in all other respects. (Doc. 47.) Defendants then answered the complaint on February 4, 2019. (Doc. 49.)

Defendants filed the instant motion for summary judgment on August 26, 2019, along with a supporting brief and a statement of facts as required by Local Rule 56.1. (Docs. 70–72.) Plaintiffs filed a statement of facts and a brief in opposition on October 4, 2019, and Defendants filed a reply brief on October 28, 2019. (Docs. 78–79, 82.) The case was reassigned to the undersigned pursuant to a verbal order from Chief United States District Judge Christopher C. Conner on November 15, 2019.

Plaintiffs filed a sur reply to the motion for summary judgment on November 20, 2019, alerting the court to a newly issued precedential opinion from the Third Circuit that was potentially relevant to the issues raised in the Defendants’ motion, Javitz v. Cty. of Luzerne , 940 F.3d 858 (3d Cir. 2019). (Doc. 83.) The court issued an order on November 25, 2019, accepting the sur reply as properly filed and granting Defendants an opportunity to file an additional brief in response to the sur reply. (Doc. 84.) Defendants filed such a brief on December 4, 2019, making the motion for summary judgment ripe for disposition. (Doc. 85.)

THE PARTIES’ STATEMENTS OF MATERIAL FACTS AND THE COURT'S REVIEW

Under Local Rule 56.1, a party moving for summary judgment is required to submit "a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried." The party opposing summary judgment must then file "a separate, short and concise statement of the material facts, responding to the numbered paragraphs" in the movant's motion, "as to which it is contended that there exists a genuine issue to be tried." M.D. Pa. L.R. 56.1.

In this case, both parties have submitted statements of material facts as required by Local Rule 56.1, but, like two ships passing in the night, the statements exist alongside one another, but do not respond to each other in any meaningful sense. (See Docs. 72, 79.) Although Defendants point out the deficiencies in the Plaintiffs’ statement by requesting that it be stricken for not complying with Local Rule 56.1, see Doc. 82 at 2–7, they do not take the extra step of responding to the allegations of fact made in the Plaintiffs’ statement. The court is therefore left with two statements of material facts that do not advance the goals of Local Rule 56.1: to facilitate the court's understanding of the facts by indicating which facts are undisputed, and to provide specific evidence supporting each party's position as to the facts that remain in dispute. See, e.g. , Landmesser v. Hazleton Area Sch. Dist. , 982 F. Supp. 2d 408, 412 (M.D. Pa. 2013) (noting that the statements of material facts required by Local Rule 56.1 "are intended to alert the court to precisely what factual questions are in dispute and point the court to the specific evidence in the record that supports a party's position on each of these questions" (quoting Rocuba v. Mackrell , No. 3:10-CV-01465, 2011 WL 6782955, at *4 (M.D. Pa. Dec. 21, 2011) )).

Nevertheless, because the complaint and answer provide a sufficient basis for the court to understand the facts of the case, the court will deny the Defendants’ request to strike the Plaintiffs’ statement and proceed with its consideration of the motion, despite the parties’ deficient statements of material facts.

Where a fact is admitted by both sides either in the complaint, answer, or statements of material facts, the court will cite pleadings from both parties and treat the fact as undisputed. Conversely, where a fact is not admitted by both sides, the court will view the fact in the light most favorable to the Plaintiffs as the non-movants and draw all reasonable inferences in their favor. Jutrowski v. Twp. of Riverdale , 904 F.3d 280, 288 (3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ. , 470 F.3d 535, 538 (3d Cir. 2006) ). In such a situation, the court will generally cite only to the Plaintiffs’ pleading that sets forth the disputed fact. Using that methodology, the court will proceed to the facts of the case.

FACTUAL BACKGROUND

Plaintiff Myers began working as a police officer for the WBPD in 2002. (Doc. 1 ¶ 5.) Plaintiff Duffy joined the department in 2014. (Doc. 1 ¶ 6.) Myers has been the president of the union at all relevant times, while Duffy became vice president of the union in January 2017. (Doc. 1 ¶¶ 13–14; Doc. 49 ¶¶ 13–14.)

The facts that give rise to the Plaintiffs’ claims began in September or October of 2015, when Defendant George, the former police chief of the WBPD, was running to become mayor of Wilkes-Barre. (Doc. 1 ¶¶ 8, 20; Doc. 49 ¶¶ 8, 20.) As part of his campaign, George asked Plaintiff Myers if the union would endorse him. (Doc. 1 ¶ 20; Doc. 49 ¶ 20.) Myers declined, informing George that the union did not endorse political candidates. (Doc. 1 ¶ 21; Doc. 49 ¶ 21.) The union formally voted not to endorse George on October 9, 2015. (Doc. 1 ¶ 22.)

Defendant George was elected mayor in November 2015 and took office on January 4, 2016. (Doc. 1 ¶¶ 23, 25; Doc. 49 ¶¶ 23, 25.) Within days of George taking office, Plaintiff Myers was removed from his position as community policing sergeant at George's direction. (Doc. 1 ¶ 26; Doc. 49 ¶ 26; George Dep. at 98, Doc. 79-4 at 27.) Another high-ranking member of the union testified that the timing of the decision to remove Myers from the community policing sergeant role "seemed suspect." (Roberts Dep. at 67, Doc. 79-74 at 20.)

Later in January 2016, Robert Hughes, the then-chief of the WBPD, announced he was going on leave. (Doc. 1 ¶ 27; Doc. 49 ¶ 27.) Defendant George appointed Defendant Lendacky as interim chief in Hughes's place. (Id. )

Prior to Hughes announcing his intention to go on leave, Chris Roberts ("Roberts"), a lieutenant with the WBPD, had reported to Hughes that Defendant Lendacky—who was then serving as a lieutenant—had been altering police reports to reflect lesser crimes than the crimes that had actually been committed. (Doc. 1 ¶ 24; Doc. 49 ¶ 24.) Hughes indicated his intention to investigate the matter. (Id. ) After Hughes went on leave and Lendacky was appointed interim chief, however, no investigation of the matter was conducted. (Doc. 1 ¶ 28; Doc. 49 ¶ 28.)

In March 2016, Plaintiff Myers drafted a letter to Defendant George with the input of the union's board that sought to prevent Defendant Lendacky from being named chief on a permanent basis. (Doc. 1 ¶ 30.) Myers intended to have the members of the union vote on the letter prior to sending it. (Id. ) Before the union could vote on the letter, however, George appointed Lendacky chief. (Doc. 1 ¶ 31; Doc. 49 ¶ 31.) The union nonetheless voted to send the letter, and Myers subsequently sent the letter to George. (Doc. 1 ¶ 34.) George received the letter and discussed the concerns raised in the letter with members of the union several times. (George Dep. at 130, Doc. 79-4 at 35.)

In the same month, Plaintiffs Myers and Duffy questioned Defendant Lendacky's ability to lead the department in public statements to Wilkes-Barre City Council. (Lendacky Dep. at 66–67, Doc. 79-27 at 19.) The statements were made in Myers and Duffy's capacities as president and vice president of the union. (Doc. 72 ¶ 32; Doc. 78 ¶ 60.) Lendacky was aware of Myers and Duffy's statements. (Lendacky Dep. at 66–67, Doc. 79-27 at 19.) Christopher Benson—an officer in the WBPD who preceded Duffy as vice president of the union—testified that after receiving a copy of Myers's letter to George, Lendacky "declared war on the union." (Benson Dep. at 63, Doc. 79-47 at 64.)

In July 2016, Defendant Lendacky appointed Defendant Foy to serve as patrol commander in the WBPD. (Doc. 1 ¶ 36; Doc. 49 ¶ 36.) In September 2016, Plaintiff Myers and...