Hall v. SEPTA, (3rd Cir. 2006)

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NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

No. 05-1364

EDWARD HALL,

Appellant

v. S E P T A ; RICHARD EVANS

APPEAL FROM THE UNITED STATES DISTRICT COURT

F O R THE EASTERN DISTRICT OF PENNSYLVANIA

D .C . Civil 04-cv-00892

District Judge: The Honorable Stewart Dalzell

Submitted Under Third Circuit LAR 34.1(a)

J a n u a ry 10, 2006

Before: BARRY and AMBRO, Circuit Judges, and DEBEVOISE,* District Judge

(Opinion Filed: February 1, 2006)

OPINION

B A R R Y , Circuit Judge A p p e llan t Edward Hall brought suit against appellees Southeastern Pennsylvania T ra n s p o rta tio n Authority ("SEPTA") and Richard J. Evans, the Chief of the SEPTA T ra n sit Police Department. The District Court granted summary judgment to appellees on o n e count of a three count complaint, and appellant appeals. We will affirm.

I.

A t approximately 10:30 P.M. on the evening of October 26, 2002, appellant, a s e rg e a n t in the SEPTA Transit Police Department,1 parked his personal vehicle outside h i s residence in Philadelphia, Pennsylvania. On the floor behind the driver's seat was a k n a p sa c k containing, among other personal items, the following SEPTA Police e q u ip m e n t: (1) radio with microphone; (2) winter hat with fronticepiece; (3) garrison belt w ith gun holster; (4) handcuff case with cuffs; (5) two winter shirts with SEPTA patch; (6 ) two winter pants; and (7) a black neck tie. The next morning, appellant discovered th a t his car had been broken into and the knapsack and its contents stolen. The item of p a rtic u la r concern in this case is the SEPTA radio, which was issued to appellant on June 1 2 , 2000. Upon issuance, appellant signed a receipt that indicated his understanding that h e is "financially responsible for the [radio] in the event it is lost, stolen or damaged due to my negligence. . . ." (A239.) O n October 28, 2002, appellant submitted a memorandum to Chief of SEPTA P o lic e Richard Evans notifying him of what had occurred. Appellant was advised the sa m e day that he would be required to take part in a pre-disciplinary interview with Lt.

C o a te s on October 31, 2002 "in reference to [his] failure to safeguard [his] police e q u ip m e n t." (A218.) Appellant then submitted a memorandum in which he stated his p o s itio n regarding any potential responsibility for the stolen equipment in hopes that the d is c ip lin a ry proceedings would be terminated. He concluded the memorandum by noting h is expectation that the interview would "exonerate [him] of any violation of police p o lic ie s" and his suspicion, in the event he was not exonerated, that "there's underlying m o tiv e s of corruption and abuse of office." (A220.)2 A t the hearing, appellant informed Lt. Coates of the circumstances surrounding the th e f t, and was ordered to repay SEPTA the value of the radio. Appellant contended, in a m e m o r a n d u m to the SEPTA police labor liaison, that the order was inappropriate in light o f his not having "been found guilty of any wrong doing." (A223.) Lt. Coates, however, re p o rte d in a memorandum to Chief Evans dated November 6, 2002 "that although Sgt.

H a ll was a victim of a crime, [] he was negligent by leaving his Septa police radio inside a k n a p sa c k in the rear of his vehicle." (A227.) He believed that appellant had violated A rticle II of the progressive disciplinary code, which provides that "[f]ailure to properly c a re for and maintain Septa equipment" constituted Neglect of Duty. (A228.) He n e v e rth e les s recommended only counseling and reinstruction in addition to re im b u rs e m e n t given that appellant lacked any prior disciplinary record. On November 6, a p p e llan t received a memorandum informing him that his "actions indicate negligence in a d e q u a te ly safeguarding Septa equipment." (A229.) P u rs u a n t to SEPTA disciplinary procedures, appellant appealed that finding. A h e a rin g was held by Captain Steven Harold in his office on November 14, 2002. Captain H a ro ld "concur[red] with the Lieutenant's decision." (A238) ("You failed to take a p p ro p ria te safe guard measures and used poor judgement by storing the radio in your v e h ic le ." ) Appellant appealed that decision and a hearing was held on December 12, 2 0 0 2 in the office of Deputy Chief David Scott. In advance of that hearing, appellant s u b m itte d a memorandum wherein, inter alia, he requested that he be exonerated "of n e g lig e n c e." (A242) ("The option of where I chose to store my radio that night may be c o n sid e re d `poor judgment' to some. However, I didn't neglect to lock all doors and c lo s e all windows.") Deputy Chief Scott upheld the prior decisions.

Appellant filed a final appeal which was heard by Chief Evans. Chief Evans found th a t [n]either Lieutenant Coates nor appeal hearing officers, Captain Steven H a ro ld nor Deputy Chief David Scott substituted their own opinions for p o lic y. Policy states that you are to properly care for and maintain SEPTA e q u ip m e n t. It was their review of the circumstances and exercise of good m a n a g em e n t judgement, which concluded that your vehicle is not su f f icie n tly secure to properly safeguard an expensive piece of equipment, a n d that you have a responsibility to reimburse the Authority for the stolen ra d io because you failed to adequately secure it.

(A 2 5 2 .)3 Appellant was thereafter required to reimburse SEPTA $50 per week until the $ 2 ,8 0 0 balance was paid.

H a v in g exhausted his internal remedies, appellant began making payments and, on M arc h 1, 2004, filed a complaint in the United States District Court for the Eastern D istric t of Pennsylvania against SEPTA and Chief Evans. He pressed three counts in his c o m p lain t: (1) race discrimination in violation of 42U.S.C. § 1981; (2) retaliation in v io la tio n of 42U.S.C. § 1981; and (3) a due process claim arising under 42U.S.C. § 1 9 8 3 . His race discrimination and retaliation claims survived appellees' motion for s u m m a ry judgment and were tried to a jury, which found against him. It is only the final c laim , that arising under § 1983, that is before us on appeal.

II.

W e have jurisdiction pursuant to 28U.S.C. § 1291. Our review of the grant of s u m m a ry judgment is plenary. See Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004); K n e ip p v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Summary judgment is appropriate " if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material fact and th a t the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

We "view the inferences to be drawn from the underlying facts in the light most f a v o ra b le " to the nonmoving party, here, appellant. Kopec, 361 F.3d at 775.

III.

S e c tio n 1983 provides: Every person who, under color of any statute, ordinance, regulation, c u sto m , or usage, of any State or Territory or the District of Columbia, s u b je c ts , or causes to be subjected, any citizen of the United States or other p e r s o n within the jurisdiction thereof to the deprivation of any rights, p riv ile g e s, or immunities secured by the Constitution and laws, shall be lia b le to the party injured in an action at law, suit in equity, or other proper p ro c e e d in g for redress . . . .

A lth o u g h its language is broad, "Section 1983 `is not itself a source of substantive rights,' b u t merely provides `a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (citation omitted). Therefore, we must first " d e te rm in e whether [appellant] has alleged the deprivation of an actual constitutional rig h t at all." Connecticut v. Gabbert, 526 U.S. 286, 290 (1999).

A p p e llan t alleged, in support of his § 1983 claim, that SEPTA failed "to properly tr a in , supervise, and control its officials and Chief of Police regarding the due process rig h ts of [appellant] and to be free from retaliatory actions [sic]," and that appellees v io late d his due process rights under the Fourteenth Amendment by unlawfully taking his p ro p e rty4 and "subjecting him to unlawful retaliatory actions." (A28.) The District C o u rt, in its order granting summary judgment, observed that the complaint "is no p a ra d ig m of clarity, and we are unable to divine from it the constitutional violation he a lle g e s ." (A11.) H is response to [appellees'] summary judgment motion as to count three [ th e § 1983 claim] is even murkier and sets forth little more than c o n c lu s io n s unsupported by record evidence[.] [ A p p e lla n t] never (1) separately identifies each constitutional right [ a p p elle e s] violated or entitlement they deprived him of; (2) cites legal a u th o rity holding that such a right or entitlement exists, or, if there is no s u c h authority, acknowledges the lack thereof and cites analogous cases s u g g e stin g that such a right or entitlement should exist; (3) supports each 4 Appellant also asserts a violation of the Fourth Amendment in pressing his due p ro c e ss claim. He has not suggested, nor do we see, how the Fourth Amendment is i m p l i c a te d . f a ctu a l assertion with citations to the record; and (4) responds to the a rg u m e n ts defendants raised in their brief[.] A t this late date, [appellant] must offer more than speculation about what, p re c ise ly, [he] is even claiming in this count that is not claimed in counts o n e and two, and thus we shall grant summary judgment as to count three[.] (A 1 1 -12 ) (emphasis in original and footnote omitted).

A lth o u g h the lack of clarity persists on appeal, two primary bases for appellant's § 1 9 8 3 claim can be gleaned. First, appellant contends that appellees violated his rights u n d e r the Fourteenth Amendment when they took his property without adequately f o llo w in g their own procedures. Second, he contends that he was retaliated against for e x e rc is in g his First Amendment right to voice his suspicions that abuse of office and c o rr u p tio n motivated the reimbursement order.

The Constitution protects against deprivations "of life, liberty, or property, without d u e process of law." U.S. Const. amend. XIV, § 1. There is no serious dispute in this c a s e that the reimbursement order represented a deprivation of appellant's property.

Appellant, however, challenges the procedural sufficiency of SEPTA's investigatory and a p p e a ls process leading to the order of reimbursement. "Due process requires that a d e p riv a tio n of a property interest `be preceded by notice and opportunity for hearing a p p ro p ria te to the nature of the case.'" Gikas v. Wash. Sch. Dist., 328 F.3d 731, 738 (3d C ir. 2003) (citations omitted). Appellant was provided with notice of the institution of an in v e stig a tio n and was offered numerous opportunities to make his case. He does not d isa g re e , arguing instead that all of that was "staged" and that there was a failure to a d e q u a tely investigate whether he was indeed negligent. There is utterly no evidence in th e record to support either argument, and his mere say-so does not make it so.

Appellant also appears to argue that he was not provided sufficient notice that le a v in g the radio in his car could constitute negligence. Again, we disagree. It was n e ith e r unforeseeable nor unfair that SEPTA would deem it negligent for one to leave a ra d io in his private vehicle and neglect of duty for one to fail to "properly care for . . .

S E P T A equipment." See generally San Filippo v. Bongiovanni, 961 F.2d 1125 (3d Cir. 1 9 9 2 ). Appellant was on fair notice that his conduct could, at a minimum, "put him at ris k " of a reimbursement order. Id. at 1137.

M o re o v e r, appellant cannot succeed by claiming that the reimbursement order c o n s titu te d a violation of substantive due process. Being required to reimburse SEPTA th e cost of the radio under the circumstances here is clearly not "conduct `that shocks the co n scien ce ' and violates the `decencies of civilized conduct.'" County of Sacramento v. L e w is, 523 U.S. 833, 846 (1998) (quoting Rochin v. California, 342 U.S. 165, 172-73 (1 9 5 2 ) (finding a substantive due process violation where a suspect's stomach was fo rcibly pumped)).

T u rn in g to his retaliation claim, we find that appellant's contention that the r e im b u r se m e n t order was in retaliation for exercising what he contends was his First A m e n d m e n t right to voice his suspicions regarding abuse of office and corruption is w ith o u t merit. We apply a three-step test in assessing this claim. See Hill v. City of S c ra n to n , 411 F.3d 118, 125 (3d Cir. 2005). Appellant must demonstrate "that the a c tiv ity is in fact protected," and "that the protected activity `was a substantial factor in th e alleged retaliatory action.'" Id. (citations omitted). If appellant is able to make such a s h o w in g , appellees could "defeat [appellant's] claim by demonstrating that the same a d v e rs e action would have taken place in the absence of the protected conduct." Id.

A p p e llan t's claim fails at the first step. "In order to find whether a public e m p lo ye e engaged in protected free speech activity, the court must first determine w h e th e r the speech can be fairly characterized as constituting speech on a matter of public c o n c ern ." Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir. 1993). Appellant's c o n te n tio n that officials at SEPTA conspired in their efforts to unfairly require him to pay f o r the stolen radio cannot be "fairly considered as relating to any matter of political, s o c ia l, or other concern to the community." Whether the speech can be fairly characterized as relating to any political, so c ial or other concern of the community is determined by its "content, f o rm , and context." The content of the speech may help to characterize it as re la tin g to a matter of social or political concern of the community if, for e x a m p le , the speaker seeks to "bring to light actual or potential wrongdoing o r breach of public trust" on the part of government officials. The form and c o n te x t of the speech may help to characterize it as relating to a matter of s o c ia l or political concern to the community if, for example, the forum w h e re the speech activity takes place is not confined merely to the public o f f ic e where the speaker is employed.

Id . (citations omitted). Appellant never pursued his suspicions, never made them public, an d cast the issue in terms of his individual situation until the instant appeal. Moreover, a lth o u g h appellant correctly notes that he need not prove that there was corruption, the m e r e allegation that it exists does not clothe him with the protection of the First A m e n d m e n t. Appellant's corruption argument, like his due process argument, distills to a c o n te n t io n that any negative decision by appellees must have been tainted by impropriety.

Connick v. Myers, 461 U.S. 138, 146 (1983). Summary judgment was properly granted.

IV .

F o r the foregoing reasons, we will affirm the judgment of the District Court.

* The Honorable Dickinson R. Debevoise, Senior District Judge, United States District C o u rt for the District of New Jersey, sitting by designation. 1 Appellant has been employed by the SEPTA Transit Police Department since 1983 a n d has been a sergeant since 1991. 2 In response to the October 28 memorandum, Chief Evans replied by memorandum d a te d November 1, 2002, which in full stated: I have received your memorandum dated October 28, 2002. The pre-disciplinary in v e stig a tio n is conducted to establish facts, which support or reject discipline. T h e points you make in your memorandum may be used by you to convince the investigator either that discipline is not warranted or that it should be mitigated. I am disturbed by your final paragraph contained in the memorandum. If you have e v id e n c e of corruption and/or abuse of office by members of this Department, you a s law enforcement official [sic] are obliged to present those facts. P le a se submit a memorandum to this office outlining those facts by November 12, 2 0 0 2 so that an investigation may be conducted. The memorandum may be s u b m itte d directly, outside of the chain of command. A p p e llan t submitted a memorandum dated November 18, 2002 which restated his s u s p ic io n s but offered no factual basis for his claims of abuse of office and corruption. 3 Reimbursement was ordered because of: (1) appellant's agreement upon receipt of th e radio; (2) an employee responsibility policy stating that "[w]hen it is determined that n e g lig e n c e was involved in the loss, theft, or damage of SEPTA property, the employee w ill be subject to disciplinary action . . . and/or be required to pay for the lost, stolen or d a m a g e d property," (A263); and (3) a disciplinary code provision providing that it is n e g le c t of duty for an officer to fail to "properly care for and maintain SEPTA eq u ipm en t." (A281).

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