                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-14-2005

Chernavsky v. Holmdel Twp Pol Dept
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3621




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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  No. 04-3621


                          DANIEL L. CHERNAVSKY,
                                            Appellant

                                        v.

          TOWNSHIP OF HOLMDEL POLICE DEPARTMENT;
      BRUCE PHILLIPS, in his official capacity and individual capacity,
                 Township of Holmdel, Chief of Police;
   RAYMOND WILSON, Captain, in his official and his individual capacity;
      JAMES SMYTHE, Corporal, in his official and individual capacity;
CAROL WILLIAMS, Township Administrator, in her official and individual capacity;
                    TOWNSHIP OF HOLMDEL


                 On Appeal from the United States District Court
                         for the District of New Jersey
                      D.C. Civil Action No. 01-cv-06207
                        (Honorable Stanley R. Chesler)


                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 May 24, 2005

      Before: SCIRICA, Chief Judge, ALITO and RENDELL, Circuit Judges

                              (Filed: June 14, 2005)


                          OPINION OF THE COURT
SCIRICA, Chief Judge.

       Daniel Chernavsky, a retired police officer, appeals the entry of summary

judgment against him in his suit alleging retaliation for protected speech. We will affirm.

                                      I. Background

       Chernavsky served as a police officer with the Township of Holmdel from 1992

until he suffered a heart attack in early 2001. The claims here stem from a report

Chernavsky filed, alleging that fellow officer and Defendant James Smythe assaulted

Kevin Martin, a suspect in custody.1 Chernavsky contends that after he reported the

incident to his superiors, he was repeatedly harassed by his fellow officers. Alleged

incidents of harassment include being ostracized in the department, having his mailbox

and time cards stolen and vandalized, being assigned to patrol a less desirable area of

town, being singled out for disciplinary action,2 being suspended from the Police

Benevolent Association, and having his health benefits terminated in the years following

his heart attack.3 Chernavsky contends this retaliation and the failure of Township and


   1
    Smythe was cleared of any wrongdoing, and as noted below, Chernavsky was later
suspended from the Police Benevolent Association for allegedly filing a false report in the
matter.
   2
    Chernavsky was investigated by the Monmouth County Prosecutor’s Office for
mishandling a domestic violence complaint. Although that office declined to press
criminal charges, Chernavsky was later found guilty of administrative violations and was
suspended for 15 days without pay.
   3
    The District Court’s opinion detailed Chernavsky’s specific allegations, along with
the time line of events. As we write only for the parties, it is unnecessary to recount all
the details here.

                                              2
police officials to address these incidents violated 42 U.S.C. § 1983, the First

Amendment, and the New Jersey Conscientious Employment Protection Act, N.J. Stat.

Ann. § 34:19-1 et seq., and constituted intentional infliction of emotional distress. He

brought charges against Chief of Police Bruce Phillips, Captain Raymond Wilson,

Township Administrator Carol Williams, Smythe, the Township, and the Police

Department.

       The District Court granted summary judgment to all Defendants, dismissing with

prejudice Chernavsky’s § 1983 claims, and dismissing without prejudice the remaining

state law claims. The court held there was no Township policy or custom of retaliating

against officers who exercised their First Amendment rights and that the individual

supervisory Defendants did not acquiesce in any unconstitutional actions. In addition, the

court held that even if the alleged harassment occurred, Smythe was not acting under the

color of law. On appeal, Chernavsky disputes each of these conclusions.

                                        II. Analysis

A. Jurisdiction and Standard of Review

       The District Court had jurisdiction over Chernavsky’s federal claims under 28

U.S.C. § 1331 and exercised supplemental jurisdiction under 28 U.S.C. § 1367 over his

related state claims. We have jurisdiction under 28 U.S.C. § 1291.

       “We exercise plenary review over the District Court’s decision to grant summary

judgment.” Martorana v. Bd. of Trs. of Steamfitters Local Union 420 Health, Welfare, &



                                              3
Pension Fund, 404 F.3d 797, 801 (3d Cir. 2005). Summary judgment is appropriate

where there is no genuine issue as to any material fact and the moving party is entitled to

a judgment as a matter of law. Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir.

2002). The burden is on the non-moving party to demonstrate that there is sufficient

evidence for a reasonable jury to find in its favor and that there is a dispute over facts that

might affect the outcome of the suit. Groman v. Township of Manalapan, 47 F.3d 628,

633 (3d Cir. 1995). Once the moving party has presented evidence showing that there is

no genuine issue of material fact, “ its opponent must do more than simply show that there

is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986).

B. Evidence of a Township Policy or Custom of Retaliation

       “[A] local government may not be sued under § 1983 for an injury inflicted solely

by its employees or agents. Instead, it is when execution of a government’s policy or

custom . . . inflicts the injury that the government as an entity is responsible under §

1983.” Monell v. N.Y. Dep’t of Social Servs., 436 U.S. 658, 694 (1978); see also Doby v.

DeCrescenzo, 171 F.3d 858, 867 (3d Cir. 1999). We have held that policy is made by an

official statement of a “decisionmaker possessing final authority to establish municipal

policy,” and custom can be shown by the presence of a course of conduct that “is so well-

settled and permanent as virtually to constitute law.” Bielevicz v. Dubinon, 915 F.2d 845,

850 (3d Cir. 1990) (internal quotations omitted). In addition, there must be a direct causal



                                               4
link between a municipal policy or custom and the alleged constitutional violation. See,

e.g., Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004); Brown v.

Muhlenberg Township, 269 F.3d 205, 214 (3d Cir. 2001).

       Here, there is no evidence of any policy or custom of retaliation against officers

who, like Chernavsky, exercise their First Amendment rights. Chernavsky argues that the

department should have more closely monitored Smythe’s actions given the history of

assault and misconduct allegations against him. Yet Smythe has never been found guilty

of any of these charges. Furthermore, such allegations are irrelevant – Chernavsky’s

complaint here is not that he was assaulted by Smythe, but that he was retaliated against

for reporting Smythe’s alleged assault of Martin. Even if there were a custom of

overlooking abuse allegations, this does not constitute a custom of retaliation. As such,

there is not the causal link required for retaliation under § 1983. Carswell, 381 F.3d at

244 (3d Cir. 2004).

C. Claims Against Supervisory Defendants Phillips, Wilson, and Williams

       To establish liability, “[t]he necessary involvement can be shown in two ways,

either ‘through allegations of personal direction or of actual knowledge and

acquiescence,’” or through proof of direct violation by a supervisor. Andrews v. City of

Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (quoting Rode v. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1988); see also Robinson v. City of Pittsburgh, 120 F.3d 1286,

1294 (3d Cir. 1997). In addition, a plaintiff must show that “an official who has the



                                             5
power to make policy is responsible for either the affirmative proclamation of a policy or

acquiescence in a well-settled custom.” Bielevicz, 915 F.2d at 850 (3d Cir. 1990).

       Chernavsky has failed to establish that Phillips, Wilson, or Williams were involved

or acquiesced in any unlawful conduct. Phillips testified he met with Smythe after the

only time Chernavsky directly complained to Phillips. When Phillips was later contacted

in writing by Chernavsky’s attorney, Phillips requested more information about the

allegations, a request with which neither Chernavsky nor his attorney complied.4

Similarly, Wilson took sufficient action to address the little information he had regarding

any confrontation between the officers. And Chernavsky produced no evidence to show

that Williams was even aware of Chernavsky’s report against Smythe, let alone of any

specific allegations of harassment.5 Even if these Defendants declined to launch a full

investigation, this does not rise to the level of acquiescence in unconstitutional conduct,

given the dearth of information provided to them by Chernavsky. The mere awareness

that Smythe and Chernavsky did not get along does not amount to deliberate action or

knowledge of retaliation sufficient to constitute acquiescence. See, e.g., Pembaur v. City



   4
    Although Smythe does not remember a meeting taking place, the paper trail of the
communication between Phillips and Chernavsky’s attorney provides support in the
record for Phillips’ attempt to look into the allegations.
   5
    Chernavsky argued that Williams’ refusal to reinstate his health benefits constituted
retaliation. However, not only was Williams acting in her role as an adjudicator for such
disputes, but her decision was based on a well-founded belief that Chernavsky was not
entitled to continue to receive these benefits while on unpaid leave and after he had filed
for a disability retirement pension.

                                              6
of Cincinnati, 475 U.S. 469, 481-83 (1986) (holding that a plaintiff in a § 1983 action

must show a deliberate choice to follow an unconstitutional course of action); Ambrose v.

Township of Robinson, 303 F.3d 488, 493 (3d Cir. 2002).

D. Claims Against Defendant Smythe

       In order to succeed on a § 1983 claim against a non-supervisory employee, a

plaintiff must show that the alleged offender acted under the color of law. “[T]he essence

of section 1983’s color of law requirement is that the alleged offender, in committing the

act complained of, abused a power or position granted by the state.” Bonenberger v.

Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997); see also Mark v. Borough of Hatboro, 51

F.3d 1137, 1150 (3d Cir. 1995) (“[A]n otherwise private tort is not committed under color

of law simply because the tortfeasor is an employee of the state.”). During the time of the

alleged harassment, Smythe did not have supervisory authority over Chernavsky.

Although Smythe possessed the title of Corporal, it is undisputed that this is a title of

seniority, not of supervisory rank. While this seniority allowed Smythe to assign

Chernavsky to a particular patrol area on at least one occasion, Chernavsky himself had

performed this assignment duty when he was the senior officer on a shift. In addition,

Smythe testified he did not even learn of Chernavsky’s report against him until after he

had left the Patrol Division. Chernavsky admitted he had no firsthand knowledge that

Smythe knew of the report when he assigned Chernavsky to patrol the “less desirable”

southern area of town. But even if we assume that Chernavsky can show Smythe was



                                              7
aware of the report, such limited action is hardly “sufficient to deter a reasonable person

of ordinary firmness from exercising his First Amendment rights.” Allah v. Seiverling,

229 F.3d 220, 225 (3d Cir. 2000) (citations omitted). The relatively benign nature of this

action becomes even more apparent upon Chernavsky’s own testimony that officers were

regularly assigned to patrol the southern sector alone, and that the only reason he

considered it less desirable is because it is more rural and therefore less busy.

       Even if we assume Smythe participated in the other retaliation alleged by

Chernavsky, such actions do not constitute an abuse of power granted by the state. This

includes Smythe’s bringing charges against Chernavsky with the Police Benevolent

Association, which subsequently suspended Chernavsky for 15 months for filing a false

report in the Martin incident. Although it was Smythe’s position as a police officer that

earned him membership in the PBA, this hardly means his actions as a member of this

union were in his official capacity as a police officer. We agree with the District Court

that Chernavsky has not shown that Smythe abused the power of his office.

E. Plaintiff’s State Law Claims

       It is well established that in an action with both federal and state claims, “if the

federal claims are dismissed before trial, even though not insubstantial in a jurisdictional

sense, the state claims should be dismissed as well.” United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 726 (1966) (codified by 28 U.S.C. § 1367(c)(3) (2004)). Having




                                              8
properly dismissed Chernavsky’s § 1983 claim with prejudice, the District Court was

correct to dismiss without prejudice the remaining state law claims.

                                     III. Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            9
