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


10-13-2005

Joseph v. Alghny Airport Auth
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2229




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                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    NO. 05-2229
                                 ________________

                             HERBERT L. JOSEPH, II,

                                          Appellant

                                          v.

   ALLEGHENY COUNTY AIRPORT AUTHORITY; ALLEGHENY COUNTY
 AIRPORT POLICE; PENNSYLVANIA PUBLIC UTILITY COMMISSION; DAWN
   ROMITZ, in her official capacity as Contract Administrator and as an individual;
 OFFICER MAYER; OFFICER DAWKIN; OFFICER MCCONNELL, in their official
capacity as police officers and as individuals; DENISE COHEN, in her official capacity
          as manager of the Pittsburgh Office, PA PUC, and as an individual
                      ____________________________________

                  On Appeal From the United States District Court
                     For the Western District of Pennsylvania
                         (W.D. Pa.. Civ. No. 03-cv-01892)
                  District Judge: Honorable Donetta W. Ambrose
                  _______________________________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 October 11, 2005

   Before:   VAN ANTWERPEN, GREENBERG and NYGAARD, Circuit Judges

                              (Filed October 13, 2005)

                            _______________________

                                   OPINION
                            _______________________

PER CURIAM.
       In this civil rights action, Appellant, Herbert L. Joseph, II, appeals pro se from the

District Court’s order granting summary judgment in favor of Appellees. For the reasons

that follow, we will affirm.

       The parties are familiar with the facts, so we will only briefly revisit them here.

Joseph operates a limousine service that picks up and drops off passengers at the

Pittsburgh International Airport (“the Airport”). On September 11, 2003, Denise Cohen,

the Pittsburgh regional manager for the Pennsylvania Public Utility Commission

(“PUC”), informed Dawn Romitz, the Allegheny County Airport Authority (“ACAA”)

official responsible for ensuring that all “for hire” transportation services at the Airport

are properly certified by the PUC, that Joseph’s operating rights had been suspended

because the PUC had not received proof of insurance. Romitz immediately forwarded

this information to the police, who stopped Joseph’s limousine at the departures curb on

September 26, 2003. Although Joseph was apparently able to provide the police with

evidence that his insurance had been restored, he became belligerent, shouted a racial

slur, and was cited for disorderly conduct. Later, Joseph engaged in what he describes as

a telephone “shouting match” with ACAA employees who were attempting to obtain

Joseph’s assurance that he would not repeat the type of behavior that led to his disorderly

conduct citation. Based on Joseph’s inability to control his temper, his use of

inappropriate language during the phone conversation and investigatory stop, and his

failure to assure that such behavior would not continue, the ACAA issued a trespass



                                              2
warning barring Joseph from conducting business at the Airport for 30 days. Separately,

on November 4, 2003, Joseph filed an application to protest at the Airport. Although the

application was initially denied on November 25, 2003, Joseph amended it, and it was

approved on December 2, 2003.

       Joseph filed a complaint, which he later amended, alleging violations of his First

and Fourth Amendment rights under 42 U.S.C. § 1983, and conspiracy to violate his civil

rights under 42 U.S.C. § 1985. The complaint sought monetary damages. Joseph named

as defendants the ACAA, Romitz, and Cohen.1 The District Court granted the

defendants’ motions for summary judgment, finding no evidence 1) that the police were

agents of the defendants, 2) that Joseph’s exercise of his First Amendment rights resulted

in his banishment from the Airport for 30 days or caused a delay in the consideration of

his protest application, or 3) that the defendants conspired to deprive Joseph of his

constitutional rights. This appeal followed.

       The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1331,

and this Court has appellate jurisdiction by virtue of 28 U.S.C. § 1291. We exercise

   1
     Joseph also named as defendants the PUC, the Allegheny County Airport Police, and
three police officers. The District Court granted the PUC’s motion to dismiss on the basis
that it is not a “person” for § 1983 purposes. See Will v. Michigan Dep’t of State Police,
491 U.S. 58 (1989). In this connection, the District Court dismissed the claims brought
against Cohen in her official capacity; the claims for damages against Romitz in her
official capacity are also barred. Id. In addition, the District Court granted Joseph’s
motion to voluntarily dismiss the claims against the Airport Police and the officers.
These rulings are not challenged by Joseph in this appeal. See Kost v. Kozakiewicz, 1
F.3d 176, 182 (3d Cir. 1993) (noting that issues not raised and argued on appeal are
deemed abandoned and waived).

                                               3
plenary review over the District Court’s grant of summary judgment. See Brooks v.

Kyler, 204 F.3d 102, 105 n.5 (3d Cir. 2000). Summary judgment is proper if there is no

genuine issue of material fact and if, viewing the facts in the light most favorable to the

non-moving party, the moving party is entitled to judgment as a matter of law. See Fed.

R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). We may affirm the

District Court’s grant of summary judgment on any basis supported by the record. See

Fairview Township v. EPA, 773 F.2d 517, 525 n.15 (3d Cir. 1985).

       Joseph contends that the ACAA, Romitz, and Cohen violated his Fourth

Amendment rights by causing the police to stop him and ask for his insurance

information. Assuming arugendo that these defendants exercise authority over the police,

liability under § 1983 may not based on the doctrine of respondeat superior. See Durmer

v. O’Carroll, 991 F.2d 64, 69 n.14 (3d Cir. 1993). Thus, in order for the ACAA to be

liable, Joseph would have to show that it had an established policy or custom that resulted

in the alleged constitutional violation at issue. See Monell v. Dept. of Social Services,

436 U.S. 658, 691 (1978). Joseph’s complaint failed to identify an organizational policy

or custom of the ACAA, the implementation of which resulted in a violation of his

constitutional rights.

       Moreover, even assuming that Romitz’s and Cohen’s roles in notifying the police

that Joseph’s operating rights had been suspended made them personally involved in the

alleged constitutional violation, see Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.



                                              4
1988), they are entitled to qualified immunity. A government officer defendant sued for a

constitutional violation is entitled to qualified immunity if a reasonable officer could have

believed that the challenged conduct was lawful under the circumstances. See Anderson

v. Creighton, 483 U.S. 635, 641 (1987). Qualified immunity “provides ample protection

to all but the plainly incompetent or those who knowingly violate the law.” Malley v.

Briggs, 475 U.S. 335, 341 (1986). Here, a private citizen informed Cohen that Joseph

was operating his limousine service at the Airport with a suspended PUC certificate.

After verifying this information with the PUC’s Bureau of Transportation and Safety,

Cohen informed Romitz that Joseph had no insurance on file with the PUC. Under these

circumstances, we conclude that it was objectively reasonable for Romitz and Cohen to

believe that Joseph’s operating privileges had been suspended, and for Romitz to forward

that information to the police.2

       Joseph also claimed that the issuance of the trespass warning and the alleged delay

in considering his protest application were in retaliation for his behavior during the

investigatory stop. He states that this activity is protected by the First Amendment. We

agree with the District Court’s conclusion that Joseph has not established that the

   2
     Joseph emphasizes that his insurance coverage was restored, and that the suspension
was lifted, before he was stopped by the police. See Informal Brief, 6-7, 9-10.
Importantly, however, on September 11, 2003, the date of the correspondence between
Cohen, Romitz, and the police, Joseph’s operating privileges were indeed suspended. In
this connection, we note that Joseph attempted to raise a “false detention” claim on the
ground that the defendants provided the police with erroneous information. Assuming
that such a claim is even cognizable, see District Court Opinion, 8 & n.2, it is without
merit because the defendants accurately reported Joseph’s suspension to the police.

                                              5
defendants’ actions were retaliatory in nature. There is no evidence that an intent to

retaliate against Joseph caused or contributed to the trespass warning or to any delay in

processing his protest application. The trespass warning, which barred Joseph from

conducting business at the Airport for 30 days, was issued because of Joseph’s offensive

behavior and his refusal to refrain from such behavior in the future. The defendants acted

within their authority to issue the trespass warning for the violations of the ACAA’s

regulations. Furthermore, Joseph’s November 4, 2003, protest application was forwarded

six days later to ACAA’s attorney, who discussed defects in the application with Joseph

on November 25, 2003. The record is devoid of any evidence of improper motive. See

Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (stating that claims for

retaliation require proof that, inter alia, an activity protected by the First Amendment was

the cause of the retaliation).

       Finally, after careful review of the record and consideration of the arguments on

appeal, we conclude that the District Court properly granted summary judgment with

regard to Joseph’s conspiracy claim under 42 U.S.C. § 1985. Indeed, Joseph failed to

allege or submit any evidence of a conspiracy or race-based animus. See Lake v. Arnold,

112 F.3d 682, 685 (3d Cir. 1987) (citing Griffin v. Breckenridge, 403 U.S. 88 (1971) and

United Brotherhood of Carpenters and Joiners of America, Local 610 v. Scott, 463 U.S.

825 (1983)).

       Accordingly, we will affirm the judgment of the District Court.



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