Willson v. Yerke

• Decision Date: 23 December 2013
• Docket Number: 3:10-CV-1376
• Parties: WILLIAM WILLSON Plaintiff v. THOMAS YERKE, et al., Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

WILLIAM WILLSON Plaintiff v. THOMAS YERKE, et al., Defendants

3:10-CV-1376

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Filed: December 23, 2013

(JUDGE MARIANI)

MEMORANDUM OPINION

I. Introduction and Jurisdiction

Following Judge Munley's Memorandum Opinion (Doc. 23) in which he dismissed several of Plaintiff's claims, the remaining causes of action are: (1) First Amendment Retaliation and (2) Substantive Due Process against all remaining Defendants in their individual capacities,¹ and (3) False Light - Invasion of Privacy against Defendant Yerke. The remaining defendants filed a Motion for Summary Judgment (Doc. 71) which was referred to Magistrate Judge Karoline Mehalchick for a Report & Recommendation ("R&R").

Before the Court is Judge Mehalchick's R&R (Doc. 87), in which she recommends (1) dismissing Plaintiff's False Light claim and all facts in support of Plaintiff's First Amendment Retaliation claim arising before July 2, 2008, and (2) denying Defendants' Motion for Summary Judgment (Doc. 87) and qualified immunity with respect to Plaintiff's First Amendment Retaliation and Substantive Due Process claims.

Only Defendants filed Objections to the R&R (Doc. 88), and the parties then briefed the issues raised in the Objections. (Doc. 92, Doc. 93, Doc. 95). For the reasons set forth below, the Court will adopt in part and reject in part the R&R.

II. Statement of Undisputed Facts

The facts of this case are largely undisputed, and the Court will adopt Judge Mehalchick's statement of the facts:

Plaintiff claims that he was subject to First Amendment retaliation based upon statements he made about Defendant Yerke. (Doc. 72). The basis of his claim and the alleged protected speech is: (1) letters to the Board of Supervisors sent by Plaintiff complaining of Defendant Yerke's actions; (2) Plaintiff's complaint to the Pennsylvania Department of Environmental Protection and to the Ethics Commission regarding Defendant Yerke; and (3) complaints filed by Plaintiff against Defendant Yerke with the Lackawanna County District Attorney's Office. (Doc. 72). The content of these complaints involve Plaintiff's concerns that Defendant Yerke was storing his personal vehicles in the Township garage, that Defendant Yerke was using Township equipment for his personal use without permission, and that Defendant Yerke used a Township funded cell phone for his personal business and his personal telephone calls. (Doc. 72).

Plaintiff claims that, in retaliation for the above statements, he was denied access to the Township solicitor, that the locks on a Township garage were changed, and that he was brought up on charges by a Township employee. (Doc. 72). Further, Plaintiff claims that he was subjected to personal harassment by Defendant Yerke as a result of his complaints.

The undisputed facts in the record are as follows:

Plaintiff William Willson was elected a member of the Covington Township Board of Supervisors in November 1997. (Doc. 72). Plaintiff served on the Board of Supervisors until December 31, 2009. (Doc. 72). Defendants Yerke, Beavers, Petrosky, and Lindner were all elected members of the Covington Township Board of Supervisors during the period of time relevant to this motion. (Doc. 72).

Between July 2007 and May 2009, Plaintiff wrote approximately 20 letters to the Board of Supervisors of Covington Township, the Township Solicitor Brain Yeager, the Pennsylvania State Ethics Commission, the Department of Environmental Protection, the Township Right-to-Know Officer, Mr. Petrosky, and Lackawanna County District Attorney Andrew Jarbola regarding complaints and concerns relating to Defendant Yerke and the Covington Township Board of Supervisors. (Doc. 72, pp. 4-9).

In 2007, Defendant Yerke placed a sign in the Township building stating, "Remember the stalker is watching you. Real men drive mini vans." (Doc. 72, p. 10). Sometime before April, 2009, Defendant Yerke posted another sign in the Township building stating: "Hey Asshole. If your [sic] gonna check time cards, put them back in the same slots. You are a coward! ! !" (Doc. 72, p. 10). Both signs were subsequently removed by Plaintiff. (Doc. 72, p. 10). In April, 2009, Plaintiff saw that someone had written on a piece of paper next to the time clock at the police station. (Doc. 72, p. 11). The note stated: "Willson is a homo and licks Van Fleet's ball bag." (Doc. 72, p. 11).

In February or March, 2009, Plaintiff and Defendant Yerke were involved in an incident following a Township Supervisors' meeting. (Doc. 72, p. 12). According to Plaintiff, Defendant Yerke told Plaintiff: "You're a no-good coward, and I ought to take you out in the parking lot and kick your ass." (Doc. 72, p. 12).

On March 19, 2009, a hearing was held before the Board of Supervisors regarding a grievance filed by a Township employee, Mr. Miaris, against Plaintiff. (Doc. 72, p. 15). Plaintiff believes that the grievance hearing was a result of Defendant Yerke conspiring with other members of the Board of Supervisors to "intimidate, humiliate, and damage" his reputation. (Doc. 78, p. 6). The grievance involved an employee complaint that Plaintiff had harassed the employee on the job. (Doc. 72, p. 15).

Lastly, Plaintiff claims that Defendant Yerke retaliated against him by making obscene gestures at him. (Doc. 72, p. 16). Specifically, Plaintiff alleges that Defendant Yerke "simulated that he was masturbating as the Plaintiff drove by him with a school bus with students on board, which was witnessed by a school bus driver for the North Pocono School District." (Doc. 72, p. 16; Doc. 1, ¶ 12).

Regarding Plaintiff's claims against Defendants Beavers, Petrosky, and Lindner, Plaintiff testified that these claims were based on their alleged inaction against Defendant Yerke's conduct toward Plaintiff, (Doc. 72, p. 9), based on "[t]heir activity of not doing anything, ignoring the letters, and the questions, the offers to show them evidence, that we needed to address this situation." (Doc. 72, p. 9).

It is disputed that the sign, posted in April 2009 that stated "Willson is a homo and licks Van Fleet's ball bag," (Doc. 72, p. 11), was written by Defendant Yerke. Additionally, it is disputed the extent to which anyone saw the sign. It is also disputed exactly when the locks to the Township garage were changed. Defendant Yerke testified that the locks on the Township garage were changed in July, 2007. (Doc. 72, p. 14). Plaintiff does not provide a specific date at which he believes the locks were changed. (Doc. 78, pp. 5-6). Plaintiff does, however, reference the changing of the locks in his January 13, 2008 letter to the Board of Supervisors. (Doc. 72, p. 14). Lastly, it is disputed the extent to which Plaintiff witnessed Defendant Yerke's obscene gesture as Plaintiff drove by him while operating a school bus. (Doc. 78, p. 7).

(R&R at 2-5).

III. Analysis

Standard on Reports & Recommendations

A district court may "designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition" of certain matters pending before the court. 28 U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge's Report & Recommendation, the District Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. at § 636(b)(1); see also Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011); Local Rule of the Middle District of Pennsylvania 72.3.

Standard for Summary Judgment

Through summary adjudication, the court may dispose of those claims that do not present a "genuine issue as to any material fact." FED. R. CIV. P. 56(a). Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.1990). "As to materiality, . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).

Statute of Limitations: False Light - Invasion of Privacy

In Pennsylvania, false light claims are governed by a one-year statute of limitations. 42 PA. CONS. STAT. § 5523(1).² Judge Mehalchick correctly determined the undisputed facts showed the last act allegedly committed by Defendant Yerke that cast Plaintiff in a false light occurred in April 2009, when Plaintiff saw that someone had written a note viewable to the public which stated, "Willson is a homo and licks Van Fleet's ball bag." Even assuming Defendant Yerke wrote the note, it was written more than a year before Plaintiff filed this lawsuit.

Given this one-year limitation, Plaintiff's false light claim is time-barred, and the Court will adopt this portion of the R&R. The Court notes that Plaintiff did not file...