Vanderhoff v. City of Nanticoke, 3:18-CV-01071

CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
Writing for the CourtJUDGE CAPUTO
PartiesAMOS VANDERHOFF, Plaintiff, v. CITY OF NANTICOKE and POLICE CHIEF THOMAS WALL, in his Individual and Official capacity, Defendants.
Docket NumberNO. 3:18-CV-01071,3:18-CV-01071
Decision Date24 September 2018

in his Individual and Official capacity, Defendants.

NO. 3:18-CV-01071


September 24, 2018



Presently before me is the Motion to Dismiss (Doc. 14) filed by Defendants the City of Nanticoke (the "City") and Police Chief Thomas Wall ("Wall") (collectively, where appropriate, "Defendants"). Now operating under the Second Amended Complaint, Plaintiff Amos Vanderhoff ("Vanderhoff" or "Plaintiff"), a City police officer, alleges that Defendants violated his rights under the United States Constitution, the Fair Labor Standards Act, 29 U.S.C. § 209 et seq. ("FLSA"), and state law. Specifically, Vanderhoff contends that Defendants have placed an unlawful prior restraint on his speech, retaliated against him for filing this lawsuit, interfered with his right to intimately associate with family members, denied him overtime pay, and retaliated against him for seeking worker's compensation and heart and lung benefits. Defendants seek dismissal of all claims.

The motion to dismiss will be granted in part and denied in part. Because Plaintiff fails to state an intimate association claim and leave to amend would be futile, that claim will be dismissed with prejudice. But, because the other claims for relief in the Second Amended Complaint are plausible, the First Amendment prior restraint, FLSA, state law retaliation, and First Amendment retaliation claims will not be dismissed.

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I. Background

The facts as alleged in the Second Amended Complaint are as follows:

Vanderhoff is employed by the City as a police officer. (See Doc. 13, ¶ 1). Wall is the City's Police Chief. (See id. at ¶ 3).

On or about May 21, 2018, Vanderhoff was told by Wall "that he is not allowed to talk about Defendant Wall to the public and that his family has to do the same as well, including but not limited to his cousin, who owes [sic] a beauty shop in the City of Nanticoke." (Id. at ¶ 14). Vandheroff's family also includes his father and son who resides with him. (See id. at ¶ 15). Wall stated to Vandheroff at that time that he had "received information from citizens that you have made false or disparaging comments about this officer." (Id. at ¶ 16). Vanderhoff "has been issued a written warning and threatened with discipline if he and his family does [sic] not stop talking about Defendant Wall." (Id. at ¶ 27). Wall also "specifically made mention of Plaintiff's cousin, who owes [sic] a beauty shop and if she does not stop talking about Defendant Wall[,] Plaintiff will be disciplined further. Additionally, Defendant Wall included Plaintiff's family, which is his father and a son, who lives with him." (Id. at ¶ 31).

Vanderhoff received an order directing him to "cease and desist conduct which could reasonably be expected to destroy public respect for Nanticoke City Police Officers and/or confidence in the Department." (Id. at Ex. "A"). The cease and desist order also referenced the Nanticoke City Police Department Field Regulations, including § 1.04, which provides:

Loyalty to the Department

Members shall not publically criticize the Department, its policies or other members or employees by talking, writing, or expressing in any other manner, where such talking, writing or other expression is defamatory, obscene, or unlawful, or when the member knows that such criticism is false.

(Id. at Ex. "B", § 1.04).

Vanderhoff spoke about corruption in the police department, including Wall's

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illegal hiring, unethical conflicts of interest, and obstruction of justice by removing court issued subpoenas and court notices of appearance. (See id. at ¶¶ 20-21). Vanderhoff also discussed Wall's selective enforcement of parking tickets. (See id. at ¶ 21).

Further, Vanderhoff sustained work-related injuries to his wrists on June 8, 2016. (See id. at ¶ 40). He underwent surgery and required physical therapy. (See id. at ¶ 42). But, when Vanderhoff returned to work, the City refused to allow him to take time off during his shift to treat with a physical therapist and he was instead required to schedule his medical appointments for work-related injuries outside of his usual shift. (See id. at ¶¶ 43-44).

Since commencing this action, Vandheroff has received several write-ups, been accused of conduct unbecoming of an officer, and subject to investigations. (See id. at ¶ 57). Wall has also scrutinized Vanderhoff's incident reports while not reviewing those prepared by other officers, removed Vanderhoff from all court hearings for the month of August, and commented negatively about Vanderhoff's mental health. (See id. at ¶¶ 58-60).

Based on the foregoing, Vanderhoff commenced this action on May 22, 2018 against the City and Wall. (See Doc. 1, generally). Vanderhoff filed the Amended Complaint the next day. (See Doc. 3, generally). Therein, Vanderhoff asserted claims for "prior restraint of speech" and "retaliation for intimate association". (See id.). Defendants moved to dismiss the Amended Complaint. (See Doc. 5, generally). That motion was granted, but Vanderhoff was given leave to file a further amended complaint. (See Docs. 11-12, generally).

Vanderhoff timely filed his Second Amended Complaint on August 6, 2018. (See Doc. 13, generally). The Second Amended Complaint contains five (5) causes of action: (1) "prior restraint of speech and overbreath [sic]" (Count I); (2) "retaliation for intimate association" (Count II); (3) violation of the Fair Labor Standards Act (Count III); (4) retaliation for "filing Heart & Lung/Workmen Compensation benefits"

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(Count IV); and (5) "retaliation for filing this Complaint" (Count V). (Id.). On August 20, 2018, Defendants filed for dismissal of the Second Amendment Complaint in its entirety. (See Doc. 14, generally). That motion has now been fully briefed and is ripe for disposition.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). "Under the 'notice pleading' standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014) (quoting Fed. R. Civ. P. 8(a)(2)).

When resolving a Rule 12(b)(6) motion, "a court must consider no more than whether the complaint establishes 'enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements' of the cause of action." Trzaska v. L'Oreal USA, Inc., 865 F. 3d 155, 162 (3d Cir. 2017) (quoting Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016)). In reviewing the sufficiency of a complaint, a court must take three steps: (1) identify the elements of the claim; (2) identify conclusions that are not entitled to the assumption of truth; and (3) assume the veracity of the well-pleaded factual allegations and determine whether they plausibly give rise to an entitlement to relief. See Connelly, 809 F.3d at 787 (citations omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

III. Discussion

A. Prior Restraint.

The First Amendment to the United States Constitution provides in relevant part

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that "Congress shall make no law. . . abridging the freedom of speech." U.S. Const. amend. I. Vanderhoff, pursuant to 42 U.S.C. § 1983, contends that the cease and desist order and the City's Field Regulations are impermissible prior restraints on his speech in violation of the First Amendment. (See Doc. 13, ¶¶17-21; Doc. 18, 2-6).

"Whereas First Amendment retaliation punishes speech that has already occurred, prior restraint of speech seeks to prevent speech from being expressed to begin with." O'Donnell v. Knott, 283 F. Supp. 3d 286, 304 (E.D. Pa. 2017) (citing Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1209 (10th Cir. 2007) ("[U]nlike an adverse action taken in response to actual speech, [a prior restraint] chills potential speech before it happens.")). A public employee, is protected by the First Amendment only

(1) if he spoke "as a citizen (and not as an employee)," (2) if his speech involved "a matter of public concern," and (3) if his employer lacked an "adequate justification" for treating him differently from the general public, based on a balancing of his and his employer's interests under Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).

De Ritis v. McGarrigle, 861 F.3d 444, 452 (3d Cir. 2017) (citing Munroe v. Central Bucks Sch. Dist., 805 F.3d 454, 466 (3d Cir. 2015)). This is so even where a public employee plaintiff's claim, like that advanced here, is based on a prior restraint of speech. See, e.g., Moonin v. Tice, 868 F.3d 853, 861 (9th Cir. 2017) ("In assessing a prior restraint, we focus on the text of the policy to determine the extent to which it implicates public employees' speech as citizens speaking on matters of public concern."); Whitney v. City of Milan, 677 F.3d 292, 296 (6th Cir. 2012) (Where a public employee plaintiff "raise[s] a First Amendment prior-restraint claim, [the Court must] apply the two-part Pickering analysis to determine whether [the mayor's] order was an unconstitutional prior restraint of a public employee's speech." ); Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d 1046, 1051-52 (7th Cir. 2008); Farhat v. Jopke, 370 F.3d 580, 598 (6th Cir. 2004).

In support of his prior restraint claim, Plaintiff directs attention to the...

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