                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-17-2008

Kline v. Valentic
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2579




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Recommended Citation
"Kline v. Valentic" (2008). 2008 Decisions. Paper 1010.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1010


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                                                                     NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                    Case No: 07-2579

                       CORPORAL DANIEL KLINE; LISA KLINE

                                             Appellants

                                             v.

                        ALAN VALENTIC; KARRY VALENTIC;
                        SGT. GARY SCHULER; SUSAN BELL;
                         LT. MCFADDEN; JOHN FERRARO;
                                THOMAS DUBOVI



                      On Appeal from the United States District Court
                          for the Western District of Pennsylvania
                               District Court No. 2:06-cv-00642
                      District Judge: The Honorable Joy Flowers Conti


                     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                      May 21, 2008

                     Before: SMITH and NYGAARD, Circuit Judges,
                             and STAFFORD, District Judge*

                                   (Filed: June 17, 2008)


                                        OPINION


STAFFORD, District Judge.

      Daniel Kline ("Kline") and Lisa Kline appeal from the District Court's dismissal of



      *
       The Honorable William H. Stafford, Jr., Senior United States District Judge for
the Northern District of Florida, sitting by designation.
their First Amendment retaliation, civil conspiracy, and reverse discrimination claims.1

We will affirm.

       At all times relevant to this action, Kline was a corporal employed by the

Pennsylvania State Police ("PSP"). On February 18, 2004, while driving his personal

vehicle with his two children as passengers, Kline was involved in a road rage incident

with Alan Valentic. The incident led Kline to file summary criminal charges of reckless

driving and disorderly conduct against Valentic. Valentic in turn filed a written

complaint against Kline with the PSP.

       The summary charges against Valentic proceeded to a hearing at which a district

justice found Valentic guilty of reckless driving and disorderly conduct. The complaint

against Kline led to a PSP investigation resulting in a report that Kline acted

inappropriately in connection with the Valentic incident. Kline challenged the report,

saying it contained false statements and material omissions leading to an unjustified

conclusion. Kline was ultimately advised that the complaint against him could not be

sustained.



       1
          We note that the District Court failed to enter a final judgment on a separate
document as required by Fed. R. Civ. P. 58. Nonetheless, because the District Court's
Memorandum Order docketed April 30, 2007, clearly indicated an intent to end the
litigation, and because the defendants have not objected to the appeal but rather have
treated the District Court's Memorandum Order as a final appealable order, we may
exercise jurisdiction over the appeal. See, e.g., De Jesus-Mangual v. Rodriguez, 383 F.3d
1, 5 (1st Cir. 2004) (noting that where the timeliness of an appeal is not in question, the
purposes of Rule 58 are not served by hinging appellate jurisdiction on the existence of a
separate judgment).
                                              2
       At or near the time the PSP was conducting its investigation into the Valentic

incident, Kline applied for a promotion. The promotion was later denied. Kline contends

that he was denied the promotion in retaliation for his having protested the "maliciously

skewered" investigation. Kline also contends that he was denied the opportunity to attend

specialized training for essentially the same retaliatory reasons.

       In an unrelated incident, Kline stopped an African-American male driving a rental

car from New York. The man, who admitted to smoking marijuana in the car, was

charged with driving with a suspended license. Kline was thereafter accused by another

police officer of racial profiling. The profiling accusation led to a lowering of Kline's

employee evaluation.

       Kline filed a multi-count complaint in federal court, including claims of First

Amendment retaliation, civil conspiracy, and reverse discrimination.2 The District Court

dismissed Kline's First Amendment retaliation and civil conspiracy claims but ordered

Kline to re-plead his reverse discrimination claim. When Kline declined to re-plead, his

reverse discrimination claim was dismissed because of "the difficulty in determining

whether any viable theory was set forth in that count." This appeal followed.3


       2
         Kline's wife, Lisa, was also named as a plaintiff in the case. The district court
dismissed Lisa's claims, finding that she had no standing to assert claims based on the
purported violations of her husband's civil rights. We likewise find that she has no
standing to pursue the claims raised in this case. We thus find her appeal to be without
merit.
       3
       The District Court exercised jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1343. Appellate jurisdiction exists under 28 U.S.C. § 1291.
                                              3
       This court's review of a district court's grant of a motion to dismiss is plenary.

Sands v. McCormick, 502 F.3d 263, 267 (3d Cir. 2007). We must accept as true all

allegations of the complaint and construe all reasonable inferences that can be drawn

therefrom in the light most favorable to the plaintiff. Phillips v. County of Allegheny, 515

F.3d 224, 233 (3d Cir. 2008). In Phillips, we summed up the pleading standard

articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955

(2007), as follows:

       [S]tating . . . a claim requires a complaint with enough factual matter (taken
       as true) to suggest the required element. This does not impose a probability
       requirement at the pleading stage, but instead simply calls for enough facts
       to raise a reasonable expectation that discovery will reveal evidence of the
       necessary element.

Phillips, 515 F.3d at 234 (internal quotation marks and citation omitted).

       In Count I of his complaint, Kline alleged that the defendants violated his First

Amendment rights by retaliating against him for bringing charges against Valentic and for

challenging the results of the PSP's internal investigation. Kline contends that the District

Court erred when it dismissed Count I for failure to state a claim. We find no error.

       A public employee's speech is protected under the First Amendment when (1) in

making it, the employee spoke as a citizen, (2) the statement involved a matter of public

concern, and (3) the government employer did not have "an adequate justification for

treating the employee differently from any other member of the general public" as a result

of the statement he made. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If an

employee does not speak as a citizen on a matter of public concern, the employee has no

                                              4
First Amendment cause of action based on his or her employer's reaction to the speech.

Public employees do not speak "as citizens" when they make statements "pursuant to their

official duties." Id. at 421. "An employee's speech addresses a matter of public concern

if it can be 'fairly considered as relating to any matter of political, social, or other concern

to the community.'" Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir. 1993)

(quoting Connick v. Myers, 461 U.S. 138, 146 (1983)).

       Kline contends that, to the extent he complained about the improper and dishonest

conduct of the officers who conducted the internal affairs investigation, he was speaking

about a matter of public concern and was not speaking within the scope of his official

duties.5 To be sure, as a general matter, police misconduct constitutes a matter of public

concern. See Vose v. Kliment, 506 F.3d 565, 569 (7th Cir. 2007) (accepting "that police

misconduct is a matter of public concern"); Markos v. City of Atlanta, Texas, 364 F.3d

567, 570 (5th Cir. 2004) (noting that "[t]his court has often stated that allegations of

police misconduct and corruption are important matters of public concern"). To be

protected under the First Amendment, however, an employee's speech about police

misconduct must be made "as a citizen." See Garcetti, 547 U.S. at 418 (explaining that

the "first [inquiry] requires determining whether the employee spoke as a citizen on a

matter of public concern") (emphasis added).


       5
          We find no error in the District Court's dismissal of Kline's claim that the
defendants violated his First Amendment rights by retaliating against him for filing
charges against Valentic. Kline clearly brought charges against Valentic pursuant to his
official duties, and those charges cannot support a First Amendment retaliation claim.
                                               5
       Here, the allegations reveal that Kline had a highly personal interest in the police

misconduct alleged in this case. He complained up the chain of command and not in any

public forum about allegedly false statements made during an investigation into his own

conduct as a police officer. It was his professional reputation that was at stake, and his

actions in no way indicated that he wanted the public to know that PSP officers

supposedly made false statements about him and his conduct during the course of an

internal investigation. Because the allegations indicate that Kline was speaking not "as a

citizen" but as a police officer whose own official conduct had been called into question,

we conclude that Kline's complaints did not constitute speech protected under the First

Amendment. The District Court did not err in dismissing Kline's First Amendment claim.

       In Count II of his complaint, Kline alleged that three of the defendants—all PSP

officers—participated in a civil conspiracy to deprive him of his rights to procedural due

process. In particular, he alleged that the three officers conspired "to deny [him] a fair

hearing by intentionally creating false evidence as part of a plan to injure [him]," the

conspiracy allegedly resulting in Kline's being denied a promotion and being refused the

opportunity to participate in specialized training. The District Court dismissed Count II

for failure to state a claim, finding that Kline had no protected liberty or property interest

in a promotion or training opportunity. Without a protected liberty or property interest,

Kline had no procedural due process right connected with the denial of a promotion or

training opportunity. Because a civil conspiracy requires a separate underlying tort as a

predicate for liability, and because Kline failed to state a claim for deprivation of his due

                                               6
process rights, the District Court found that Kline likewise failed to state a claim for civil

conspiracy. Kline contends that the District Court erred when it dismissed his civil

conspiracy claim.

       On appeal, Kline changes gears. While in his complaint he alleged that the civil

conspiracy claim was based on a deprivation of his procedural due process rights, he

argues on appeal that his civil conspiracy claim is based on "valid claims against the PSP

Defendants for violations of his First Amendment rights." The District Court addressed

Count II as it was alleged and argued, and Kline has presented nothing on appeal that

would cast doubt on the correctness of the District Court's decision. Even if Count II

could be construed to state a claim for civil conspiracy to deprive Kline of his First

Amendment rights, Count II would still be subject to dismissal for failure to state a claim

because Kline failed to state a claim for violation of his First Amendment rights.

       In Count IV of his complaint, Kline (a white man) alleged that, in violation of the

First, Thirteenth, and Fourteenth Amendments to the United States Constitution, Kline's

black supervisor accused Kline of racial profiling and instructed another officer to lower

Kline's employment evaluation as a result. The District Court dismissed Count IV with

leave to amend, noting that attempts to decipher Kline's claim "should be reserved for the

Plaintiff and his attorneys." Kline declined to amend his complaint; the officers renewed

their motion to dismiss; and the District Court again dismissed Count IV, finding the

"same difficulties to comprehend whether there is a viable legal theory implicated in

Count IV." Although Kline asserts on appeal that Count IV clearly sets forth a short and

                                               7
plain statement entitling him to relief, we are unpersuaded.

       Finding no error, we will affirm the District Court's order dismissing Kline's

claims.




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