                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 09-3251


                   STEVEN L. ROBERTS; SHANE DEARDORFF;
                   MATTHEW T. SHUEY; MICHAEL S. LYONS;
                    CLAIR MARTIN; TIMOTHY W. WHEALE;
                              GORDON J. BERLIN

                                            v.

                     JACK F. MENTZER; JOSEPH M. DITZLER;
                          ELIZABETHTOWN BOROUGH

                                                 Steven L. Roberts, Shane Deardorff,
                                                 Matthew T. Shuey, Michael S. Lyons,
                                                 Clair Martin and Timothy W. Wheale,
                                                                             Appellants


                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Civil Action No. 08-cv-4507)
                       District Judge: Honorable Juan R. Sanchez


                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 20, 2010

      Before: SCIRICA and AMBRO, Circuit Judges, and JONES,* District Judge

                              (Opinion filed: May 27, 2010)



      *
         The Honorable John E. Jones, III, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
                                          OPINION


JONES, District Judge

       Steven L. Roberts (“Roberts”), Shane Deardorff (“Deardorff”), Matthew T. Shuey

(“Shuey”), Michael S. Lyons (“Lyons”), Clair Martin (“Martin”), and Timonthy W.

Wheale (“Wheale”) appeal the District Court’s dismissal of their 42 U.S.C. § 1983

claims,1 which are based on alleged violations of the rights secured under the First,

Fourth, and Fourteenth Amendments of the federal Constitution and the related rights

protected under the Pennsylvania Constitution. We affirm.2

                                              I.

       In 2008, Michael Lyons (“Lyons”), a police officer with the Borough of

Elizabethtown (the “Borough”), sued the Borough, Police Chief Jack F. Mentzer (“Chief

Mentzer”), and Assistant Chief Joseph M. Ditzler (“Assistant Chief Ditzler”),

(collectively, “the Defendants” or “Appellants”), alleging that they retaliated against him




       1
         This provision states, in relevant part, “Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured . . .
.” 42 U.S.C. § 1983.
       2
       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3)-(4),
1367. We have jurisdiction under 28 U.S.C. § 1291.

                                               2
in violation of his First Amendment rights.3 While that case was ultimately resolved on

summary judgment,4 the facts undergirding the present case occurred during the Lyons I

discovery period. In his initial disclosures made pursuant to Federal Rule of Civil

Procedure 26(a),5 Lyons listed Roberts, Deardorff, Shuey, Martin, Wheale, and Gordon J.

Berlin (“Berlin”) 6 as individuals who might have information relevant to his First

Amendment claim. Consequently, the Defendants sought to depose these individuals.

Prior to the depositions, the Defendants allegedly provided their attorneys with the

personnel files of the Police Officers without the Police Officers’ consent. During their

respective depositions, the Police Officers were allegedly questioned about sensitive and

confidential information contained in their personnel files. The instant matter was

subsequently initiated by Lyons, Roberts, Deardorff, Shuey, Martin, and Wheale,



       3
           We shall refer to this initial suit as “Lyons I.”
       4
        District Judge Juan R. Sanchez granted summary judgment in favor of Chief
Mentzer, Assistant Chief Ditzler, and the Borough, reasoning that Lyons’ First
Amendment claim was barred because his speech occurred pursuant to his official duties
and was therefore not protected. See Lyons v. Mentzer, 2008 WL 4444272 *4 (E.D. Pa.
2008) (Lyons I) (citing Garcetti v. Ceballos, 547 U.S. 410, 410-11 (2006)).
       5
        Rule 26 requires a party to provide its opponent with, inter alia, “the name and,
if known, the address and telephone number of each individual likely to have
discoverable information--along with the subjects of that information--that the disclosing
party may use to support its claims or defenses, unless the use would be solely for
impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i).
       6
         These individuals were either current or former police officers of the
Elizabethtown Borough at the time Lyons joined the police force. We shall refer to them
collectively as “the Police Officers.”

                                                  3
(collectively, “Plaintiffs” or “Appellants”), who allege that Appellees violated their

federal and state constitutional rights by providing Appellees’ attorneys with the

information contained in their personnel files.7 The District Court ultimately dismissed

these claims, and the Appellants timely appealed.

                                                II.

       Our review of the District Court’s order granting Defendants’/Appellees’ Motion

to Dismiss the Amended Complaint is plenary. See AT&T v. JMT Telecom, LLC, 470,

F.3d 525, 530 (3d Cir. 2006). In conducting a plenary review of this case, we must accept

as true all of the allegations contained in the amended complaint and draw all inferences

from the allegations in the light most favorable to the Plaintiffs/Appellants. See Phillips v.

County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche

Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). A motion to dismiss should be

granted if the Plaintiffs are unable to plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atlantic Corp. V. Twombly, 550 U.S. 544, 570 (2007). The

plausibility standard requires “more than a sheer possibility that a defendant has acted

unlawfully.” Ashcroft v. Iqbal, - - U.S. - -, 129 S.Ct. 1937, 1949 (2009). Rather, the

“[f]actual allegations must be enough to raise a right to relief above the speculative level .

. . .” Twombly, 550 U.S. at 555.




       7
           We shall refer to this suit as “Lyons II.”

                                                 4
                                              III.

       Appellants argue that the District Court erred in granting summary judgment on

their federal and state constitutional claims.8 We address these claims seriatim.9

       A.     First Amendment Claims

       Appellants allege that their First Amendment rights to appear as witnesses, to

associate with persons of their choosing, to access the courts, to petition the courts for

redress, and to be free from retaliation were denied by Appellees’ actions in the

underlying litigation. We discuss these in turn.

       Appellants’ right to access claim appears to be predicated upon the assertion that

the use of their personnel files during the depositions conducted in Lyons I somehow

compromised the success of that suit. In order to maintain such a suit, Appellants

must “demonstrate that a defendant caused ‘actual injury’ . . . i.e., took or was

responsible for actions that ‘hindered [a plaintiff’s] efforts to pursue a legal claim.’”




       8
         The federal Constitution provides the minimum safeguards for individual liberty.
See Florida v. Powell, 130 S.Ct. 1195, 1203 (3d Cir. 2010) (“state courts are absolutely
free to interpret state constitutional provisions to accord greater protection to individual
rights than do similar provisions of the United States Constitution”). Therefore, conduct
that does not violate the federal Constitution cannot violate the Pennsylvania state
Constitution. As we explain below, we do not believe that the conduct of the Appellees
violated the federal Constitution, and so our analysis is confined to federal constitutional
principles.
       9
        In doing so, we take special care not to conflate the conduct of Appellees
(providing their attorneys with the personnel files) with the conduct of Appellees’
attorneys (using information in the files as the basis for allegedly improper questions).

                                               5
Beckerman v. Susquehanna Twp. Police & Admin., 254 Fed. Appx. 149, 153 (3d Cir.

2007) (citing

Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997) (citations omitted)). Since the

underlying litigation was instituted by Lyons alone, he is the only individual who could

possibly maintain a First Amendment right to access claim. However, his right to access

claim fails because the First Amendment claim he asserted in Lyons I was dismissed for

reasons unrelated to the testimony given by the Police Officers, meaning that the

Appellees’ conduct did not in fact cause him any harm.10 Accordingly, the District Court

appropriately dismissed the First Amendment right to access claims.

       In relation to the right to petition claims, we note again that Lyons is the only

individual who could possibly maintain such a claim since he is the only individual who

petitioned the government prior to this suit. However, his right to petition claim seems to

be based on the same premise as his right to access claim; to wit, that Appellees’ conduct

compromised the testimony he would have elicited from the Police Officers, thereby


       10
          Indeed, as noted, Lyons I was dismissed because Lyons could not establish that
his speech was uttered as a citizen, and not in his official capacity. See Lyons I at * 3
(Lyons’ speech included, inter alia, “his complaints to superiors, up the chain of
command, regarding fellow officers failing to follow up on criminal investigations,
unreasonably returning police reports for punctuation errors, interfering with Drug Task
Force investigations, improperly issuing violation notices for work properly performed,
unlawfully seizing drugs from other jurisdictions, and inappropriately discussing
confidential police information with civilians.”). Assuming, arguendo, that Appellees’
conduct did deprive Lyons of certain testimony, that testimony could not have possibly
altered the very nature of Lyons’ speech. Consequently, we do not believe that Appellees’
conduct caused Lyons actual injury.

                                              6
preventing him from maintaining his First Amendment retaliation claim in Lyons I. Since

we view these claims as indistinguishable, see Woodford v. Ngo, 548 U.S. 81, 122 (2006)

(“the right of access to the courts is an aspect of the First Amendment right to petition the

Government for redress of grievances”), we shall deny Lyons’ right to petition claim for

the reasons stated in our discussion of his right to access claim. Accordingly, the District

Court did not err in dismissing Appellants’ right to petition claims.

       With regard to Appellants’ right of association claim, we note that “the First

Amendment protects two types of association: expressive and intimate. Generally

speaking, expressive association protects the ability of individuals to gather in order to

pursue political, social, economic, educational, religious, and cultural ends . . . . Intimate

association protects the closest and most interdependent of human relationships against

state interference.” Schultz v. Wilson, 304 Fed. Appx. 116, 120 (3d Cir. 2008) (internal

quotations and citations omitted). Since Appellants allege that Appellees’ conduct

prevented them from freely associating with individuals of their choosing, we construe

their claims as being grounded in the theory of intimate association. Intimate associations

“by their nature involve deep attachments and commitments to the necessarily few other

individuals with whom one shares not only a special community of thoughts, experiences,

and beliefs but also distinctively personal aspects of one’s life.” Pi Lambda Phi

Fraternity, Inc. v. University of Pittsburgh, 229 F.3d 435, 442 (3d Cir. 2000) (quoting

Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984)). Appellants have not



                                               7
provided us with any authority, nor can we locate the same, indicating that any type of

employment, much less the public employment at issue in this case, automatically gives

rise to an “intimate association.” Further, Appellants have failed to lodge allegations

from which a reasonable person could infer that such an association developed amongst

them. Moreover, Appellants have failed to identify how Appellees’ disclosure of the

personnel files adversely affected their rights of association. Accordingly, the District

Court properly dismissed Appellants’ freedom of association claims for failure to state a

claim upon which relief may be granted.

       Appellants also argue that Appellees’ conduct infringed upon their First

Amendment rights to appear as witnesses. However, although the right to appear and

give true testimony as a witness in a legal proceeding is guaranteed by the free speech

clause of the First Amendment, see Melton v. Oklahoma City, 879 F.2d 706, 714 (10th

Cir. 1989), cert. denied, 502 U.S. 906 (1991), Appellants have not alleged that Appellees’

conduct caused them either to fail to appear as witnesses or to provide false testimony

when they did appear as witnesses. Indeed, as the District Court noted, Appellants do not

contest the fact that during the litigation of this case they did have an opportunity to

appear as witnesses and be deposed with their attorneys present. If the Appellants felt

that improprieties were committed in connection with their depositions they could have




                                              8
alerted the District Court to the same. See Fed. R. Civ. P. 30.11 However, they failed to do

so. Accordingly, the District Court properly dismissed Appellants’ First Amendment

claims to this extent.

       Finally, to the extent that Appellants have lodged First Amendment retaliation

claims against the Appellees, we take cognizance of the three-step burden-shifting

analysis utilized when analyzing claims of this nature by public employees. See Hill v.

City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). “First, the employee must show that

the activity is in fact protected. Second, the employee must show that the protected

activity ‘was a substantial factor in the alleged retaliatory action.’ Third, the employer

may defeat the employee’s claim by demonstrating that the same adverse action would

have taken place in the absence of the protected conduct.” Id. (citations omitted). In

determining whether an alleged act of retaliation can sufficiently support a First

Amendment retaliation claim, we look to whether the act would be “sufficient to deter a

person of ordinary firmness from exercising his First Amendment rights.” McKee v.

Hart, 436 F.3d 165, 170 (3d Cir. 2006) (internal quotation marks and citation omitted).

In the case at bar, as far as we can tell, the First Amendment retaliation claim asserted by

Lyons is premised upon his filing of Lyons I, and the retaliation claims asserted by the




       11
         When a deposition is “being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the deponent or party,” the deponent or
party may move the court to terminate or limit the scope of the deposition. See Fed. R.
Civ. P. 30(d)(3)(A).

                                              9
remaining Appellants are premised on their willingness to be deposed as Lyons’ witness

in Lyons I.

       As the District Court noted, “Depositions are adversarial in nature . . . .” Jiminez v.

All-American Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007) (citing Darnell v. Target

Stores, 16 F.3d 174, 176 (7th Cir. 1994)). Nothing in the amended complaint indicates

that Appellees’ disclosure of the personnel files was done for any purpose other than to

assist in their defense of Lyons’ allegations. Indeed, Appellants admit that the personnel

files were being used in order to identify bias and to otherwise impeach their credibility or

cast them in a negative light. See Amend. Compl.¶ 19. Certainly, such a use was

reasonable given the nature of the lawsuit in Lyons I, i.e. a First Amendment retaliation

suit. Consequently, we believe that the conduct about which Appellants complain is not

“sufficient to deter a person of ordinary firmness from exercising his First Amendment

rights.” 12 Accordingly, the District Court did not err in dismissing Appellants’ First

Amendment retaliation claims.

       B.     Fourth Amendment Claims

       The Fourth Amendment states, “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not



       12
          This conclusion is buttressed by the fact that although Appellants had the
opportunity to complain about the alleged improprieties associated with the depositions,
they failed to do so. Quite simply, we decline the invitation to classify zealous cross-
examination as retaliatory conduct.

                                             10
be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the persons or things

to be seized.” U.S. C ONST. amend IV. An individual’s Fourth Amendment rights are

implicated in situations where he or she has a reasonable expectation of privacy. See

O’Connor v. Ortega, 480 U.S. 709, 715 (1987). The amended complaint clearly avers

that the Appellees maintained and had access to the personnel files. See Amended Compl.

¶¶ 15, 16. Conversely, the amended complaint is completely bereft of any indication that

the personnel files belonged to Appellants. Nor have Appellants provided us with any

case law indicating that employees have a privacy interest in the personnel files

maintained by their employers. Indeed, we believe that reasonable employees would

assume that the personnel files maintained by their employer could be used in an

employment-discrimination lawsuit in which they testified. In such circumstances, we

believe that there is no reasonable expectation of privacy in said files.13 See Ortega, 480


       13
           Appellants argue that if we affirm the District Court’s determinations, we will
be implicitly sanctioning employers to manipulate the records of its employees as they see
fit, including, but not limited to, distributing and publishing information derived
therefrom. This argument misapprehends our holding, which is expressly limited to the
facts of this case. As stated, the matter at bar is based upon the First Amendment claims
asserted against Chief Mentzer, Assistant Chief Ditzler, and the Borough in Lyons I. In
that case, Lyons himself identified Roberts, Deardorff, Shuey, Martin, Wheale, and Berlin
as individuals who might have information relevant to his First Amendment retaliation
claim. These individuals were eventually subpoenaed for deposition. In that context, we
believe it was entirely reasonable for the Appellees to provide their attorneys with the
personnel files of those individuals, which Appellees created and maintained, so that any
potential biases could be identified during the depositions. Appellant’s slippery slope
argument is inapt for all of the foregoing reasons.

                                             11
U.S. at 717 (“The employee’s expectation of privacy must be assessed in the context of

the employment relation.”). Therefore, we find that the District Court did not err in

dismissing Appellants’ Fourth Amendment claims.14

       C.     Fourteenth Amendment Substantive Due Process Claims

       The due process clause of the Fourteenth Amendment states, in pertinent part, “No

State shall . . . deprive any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of the laws.” U.S.

C ONST. amend. XIV. The elements of a substantive due process claim are that: (i)

defendants acted under color of law; (ii) a protected property or liberty interest was at




       14
          To be sure, we can envision a circumstance where the revelation of information
contained in a personnel file might support a claim of retaliation; to wit, if sensitive
information that could not possibly be used to assess bias was gratuitously or recklessly
released. There is no indication that this occurred here. While Appellants baldly allege
that certain medical and confidential information was released to Appellees’ counsel in
advance of the depositions, there is no indication that any information utilized by
Appellees fell outside the realm of what could have been reasonably used to assess the
existence of bias. Moreover, Appellants fail to cite to any deposition testimony
demonstrating the inappropriate release of information from their files, nor have they
attached the depositions as exhibits to their complaint, which could have been
accomplished under seal to preserve confidentiality. In short, Appellants have provided
us with nothing more than blanket assertions that the disclosed information was
“confidential” and therefore that its release was unconstitutional. Such allegations are
insufficient to allow their claims to survive. See Ashcroft v. Iqbal, --- U.S. ---, ---, 129 S.
Ct. 1937, 1949 (2009) (While a complaint attacked by a Rule 12(b)(6) motion to dismiss
need not contain detailed factual allegations, it must contain “sufficient factual matter,
accepted as true, to state claim to relief that is plausible on its face.”); See Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (Bare allegations are “not entitled to the
assumption of truth” and must be disregarded for purposes of resolving a 12(b)(6) motion
to dismiss.).

                                               12
stake; (iii) the defendants had a duty of care toward the plaintiff; and (iv) a deprivation

within the meaning of the due process clause occurred. See Fagan v. City of Vineland, 22

F.3d 1296, 1310 (3d Cir. 1994). The amended complaint avers that Appellees, in their

official capacities, violated Appellants’ substantive due process rights by depriving them

of their protected property interests in their personnel and medical records and their

protected liberty interest in being “free of arbitrary and capricious government actions

devoid of any legitimate government purposes . . . .” Amend Compl. ¶¶ 8, 22.

       In order to support a substantive due process claim, the government conduct must

be “so egregious, so outrageous, that it may fairly be said to shock the contemporary

conscience.” Kaucher v. County of Bucks, 455 F.3d 418, 425 (3d Cir. 2006). The

determination of whether conduct “shocks the conscience” is dependent upon the facts of

each particular case. See id. at 425-26. As aforestated, we believe that, in the context of

Lyons I, it was entirely reasonable for Appellees to do provide their counsel with the

personnel files of those individuals who were specifically identified by Lyons in Rule

26(a) disclosures and who have been subpoenaed to testify, as doing so would assist their

counsel in determining whether Lyons’ allegations of unlawful retaliation were

meritorious. Accordingly, we do not believe that Appellees’ conduct “shocks the

conscience,” meaning that the District Court did not err in concluding that Appellants

failed to state a substantive due process claim upon which relief can be granted.




                                              13
       Based on the foregoing discussion, the District Court properly dismissed the

above-captioned action because Appellants failed to establish that their First, Fourth, or

Fourteenth Amendment rights had been violated. However, even if Appellants’ rights

had been violated, the doctrine of qualified immunity would insulate Mentzer and Ditzler

from liability. The doctrine of qualified immunity protects government officials

performing discretionary functions so long as their conduct does not violate established

constitutional rights of which a reasonable person would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Stated differently, in assessing whether Chief

Mentzer and Assistant Chief Ditzler should be vested with qualified immunity, we must

determine whether there was a constitutional violation and whether there was good reason

for them to know that their actions were unconstitutional. Wilkie v. Robbins, 551 U.S. 537

(2007) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)); see also Pearson v. Callahan, -

- U.S. - -, 129 S.Ct. 808 (2009) (modifying Saucier to the extent that courts need not

address one specific inquiry before the other). As stated above, given that Appellees’

conduct occurred in the context of a First Amendment retaliation lawsuit in which

Appellants were identified in Rule 26(a) disclosures and subpoenaed to testify, we do not

believe that a reasonable person could conclude that Appellees should have known that

their disclosure of Appellants’ personnel files violated either the First, Fourth, or




                                              14
Fourteenth Amendments of the federal Constitution.15 Consequently, Appellees would be

vested with qualified immunity in the instant lawsuit. See Groh v. Ramirez, 540 U.S. 551,

571 (2004) (for the proposition that qualified immunity provides ample protection to all

but the plainly incompetent or those who knowingly violate the law). Accordingly, the

District Court’s decision to dismiss the claims against them was proper in any event.

       Further, with regard to the allegations lodged against the Borough, we note that a

municipality is liable under § 1983 for constitutional violations “when the execution of a

government’s policy or custom, whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy, inflict the injury.” Monell v. Dep’t of

Soc. Serv., 436 U.S. 658, 694 (1978). A municipality is not liable under § 1983 unless the

policy or custom is the moving force behind the constitutional violation. City of Canton v.

Harris, 489 U.S. 378, 388 (1989). The amended complaint is completely bereft of any

allegations related to a policy or custom adopted by the Borough, much less a policy or

custom that directly resulted in the alleged deprivation of Appellants’ constitutional

rights. Accordingly, the District Court’s decision to dismiss the claims against it was

entirely appropriate.

                                      *   *    *    *   *




       15
          Again, this determination is premised on the fact that Appellants have failed to
identify any specific information contained in the personnel files and used during the
depositions that was not designed to identify bias.

                                              15
Based on the foregoing, we affirm the judgment of the District Court.




                                    16
