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


9-24-2008

Myers v. Somerset
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3014




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"Myers v. Somerset" (2008). 2008 Decisions. Paper 494.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 07-3014
.                                   ____________

                                RICHARD A. MYERS,
                                               Appellant
                                       vs.

             COUNTY OF SOMERSET; WAYNE J. FORREST;
      RONALD E. THORNBERG; NORMAN CULLEN; NICHOLAS MAGOS;
           ANDREW HISSIM; DANIEL LIVAK; STEPHEN BURKE
                           ____________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY
                           (D.C. Civ. No. 04-cv-06362)
                   District Judge: Honorable Mary L. Cooper
                                  ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 12, 2008
                 Before: McKEE, SMITH and WEIS, Circuit Judges.
                         Filed: September 24, 2008

                                    ____________

                                      OPINION


WEIS, Circuit Judge.

             Plaintiff Richard Myers appeals the District Court’s order granting

summary judgment on his 42 U.S.C. § 1983 claims in favor of defendants. The dispute



                                           1
arises from a series of events that ultimately resulted in Myers being terminated from his

position as detective sergeant with the Somerset County Prosecutor’s Office.1 We will

affirm.

              Myers filed a complaint in the District Court asserting four § 1983 claims,

as well as a statutory state-law count. The District Court found in favor of defendants in

the federal claims and dismissed the state-law count without prejudice. Myers contends

that the District Court erred in (I) failing to properly analyze his claims of retaliation for

engaging in speech protected by the First and Fourteenth Amendments, (ii) finding that he

was not unlawfully searched or seized in violation of the Fourth and Fourteenth

Amendments, and (iii) determining that he was not denied due process in contravention of

the Fourteenth Amendment.

                                               I.

              Myers’s first contention is that the District Court erred when it determined

that he did not suffer retaliation for engaging in constitutionally protected speech. A

valid retaliation claim requires a plaintiff to demonstrate “(1) that the activity in question

is protected by the First Amendment, and (2) that the protected activity was a substantial

factor in the alleged retaliatory action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241

(3d Cir. 2006).




              1
               Myers and each of the individual defendants are either current or former
employees of the Somerset County Prosecutor’s Office.

                                               2
              In his brief, Myers alleges that in two instances the speech that allegedly

caused him to suffer retaliation was constitutionally-protected. The first instance

occurred when Myers protested that a homicide suspect Myers was ordered to investigate

could not have committed the crime. The second event occurred when Myers told the

Somerset County prosecutor, defendant Wayne J. Forrest, and Green Brook Chief of

Police Martin Rasmussen that the chiefs of certain police departments within Somerset

County were “being hypocritical” for supporting Forrest in his search for renomination.

              A public employee’s speech is constitutionally-protected when (1) “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.” Id. at 241-42 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418

(2006)).

              Myers’s statements concerning the homicide investigation do not qualify as

protected because they occurred pursuant to his official duties. See id. at 242 (statements

made pursuant to a public employee’s official duties are not made “as a citizen”). The

Supreme Court has commented that the inquiry into whether a government employee’s

speech occurred pursuant to employment duties is “a practical one.” Garcetti, 547 U.S. at

424. Myers’s comments about the homicide investigation were made to Forrest, the

principal of the Prosecutor’s Office, Captain Racz, an employee of the Prosecutor’s



                                             3
Office who Myers described as “my captain,” (App. 1205), and Detective Hall, an

employee of the Bernards Township Police Department with whom Myers “took the lead”

in investigating the crime. (App. 1204). Viewing Myers’s comments practically we

conclude that, because each statement was made to either someone within the chain-of-

command or the co-lead investigator, Myers spoke pursuant to his employment duties.

Consequently, the comments are afforded no constitutional protection and cannot form

the basis of a valid retaliation claim.

               Myers’s assertions about the hypocrisy of the police chiefs for supporting

defendant Forrest also are not constitutionally-protected expressions. The statements fail

to meet the third requirement of the protected-speech standard.

               The District Court observed that Myers’s statements “undermine[d] the

authority of the Prosecutor and encourage[d] a breakdown of the working relationship

between the county chiefs and the . . . Prosecutor.” Myers v. County of Somerset, 515 F.

Supp. 2d 492, 503 (D.N.J. 2007). We agree. Myers’s statements, therefore, were not

constitutionally-protected speech as a matter of law. See Hill, 455 F.3d at 241 (the

inquiry into whether a government employee’s speech is a protected activity is a question

of law).

               Since we conclude Myers did not engage in constitutionally-protected

activity, his retaliation claim fails.




                                             4
                                              II.

              For a portion of the time that Myers was employed he was assigned to

cramped quarters. Myers contends that the assignment constituted an unconstitutional

seizure. Myers has not shown, however, that he was restrained in any manner.

Consequently, he has not demonstrated a constitutionally-impermissible seizure.

              Myers also argues that he was subjected to unlawful searches when

employees of the Prosecutor’s Office (I) looked through the back windows of the county-

owned vehicle he was provided in order to determine whether he was keeping children’s

car-seats in the vehicle while on-duty, (ii) searched his work files, and (iii) went to his

house and his neighbor’s house looking for him. The District Court determined that none

of these events were “searches” for Fourth Amendment purposes. Myers does not

provide us with any authority that calls the District Court’s conclusion into question. We

hold that defendants did not subject Myers to an unconstitutional search.

                                              III.

              Myers final allegation is that he was denied due process. He argues that he

has asserted a valid due process claim under several theories.

              First, Myers contends that he was subjected to arbitrary or irrational

government action when he was harassed for engaging in conduct protected by the First

Amendment. This allegation is merely a reiteration of Myers’s first claim. We reject it

because he did not engage in any protected speech.



                                               5
              Next, Myers argues that the circumstances of his termination give rise to a

due process claim for deprivation of a liberty interest he has in his reputation. This Court

recognizes due process claims for damage to a plaintiff’s reputation if the plaintiff can

show that a government employer “create[d] and disseminate[d] a false and defamatory

impression about the employee in connection with his termination.” Id. at 236 (quoting

Codd v. Velger, 429 U.S. 624, 628 (1977)). Myers alleges that he was defamed when

defendants publicly leveled false allegations of wrongdoing against him in the process of

his termination.

              The District Court analyzed Myers’s claim and concluded that he failed to

demonstrate that defendants publicly disseminated false or defamatory information. In

his brief, Myers attempts to refute the District Court’s conclusion by simply stating that

he has “asserted specific facts as to the damage to his reputation” in public without

identifying any evidence in the record that supports his allegation. Consequently, we

agree with the District Court that Myers has not set forth any evidence that supports his

claim that he was denied due process because of damage to his reputation accompanying

his termination from employment in the Prosecutor’s Office.

              Finally, Myers contends that defendants exhibited deliberate indifference to

his constitutional rights. Myers has not, however, adduced facts that could demonstrate

that defendants violated his constitutional rights. Without that showing, we cannot find




                                             6
deliberate indifference to Myers’s constitutional rights.2

                                             IV.

              In sum, we conclude that Myers has not adduced evidence that would

support a viable § 1983 claim. We will therefore affirm the order of the District Court

granting summary judgment to defendants on these claims and dismissing Myers’s state-

law claim without prejudice.




              2
                In a footnote in his brief, Myers asserts that he was deprived of other
property and liberty interests without due process. Specifically, he alleges that he
suffered deprivation of his pension, pay, and a job opportunity, as well as emotional
distress because of the actions of defendants. The District Court analyzed Myers’s claims
and determined that none of the alleged deprivations implicate a constitutionally-
protected property or liberty interest. We agree.
               Myers also asserts, without citing to authority, that the Fourteenth
Amendment protects him from being deprived of police powers without due process. We
find that any “police power” Myers was allegedly entitled to does not amount to a liberty
or property interest the Fourteenth Amendment protects.

                                              7
