                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-6-2007

Livingston v. McKees Rocks
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4287




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http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1528


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                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 05-4287


   BRANDON LIVINGSTON, a minor by his parents and guardians,
 Mark Livingston & Lorraine Livingston; KAZMARAE LIVINGSTON,
           a minor, by and through her parents and guardians,
   Mark Livingston and Lorraine Livingston; MARK LIVINGSTON,
       an individual; LORRAINE LIVINGSTON, an individual;
RENE SURGEST, an individual; WANDA JONES-DIXON, an individual;
  ANGELA KIRKLAND, a minor by her parents and natural guardians
                Sally Kirkland and Bobby Kirkland, Sr.

                                    v.

  *BOROUGH OF MCKEES ROCKS; OFFICER SHAWN BARGER;
  MCKEES ROCKS POLICE DEPARTMENT; OFFICER DOLPHO;
     BOROUGH OF MCKEES ROCKS SCHOOL DISTRICT;


          Brandon Livingston, a minor by his parents and guardians,
             Mark Livingston and Lorraine Livingston; Kazmarae
         Livingston, a minor by and through her parents and guardians,
          Mark Livingston and Lorraine Livingston; Mark Livingston;
              Lorraine Livingston; Rene Surgest; Wanda Dixon,

                                         Appellants

          *(Amended pursuant to the Court's Order dated 04/11/06)


           On Appeal from the United States District Court
              for the Western District of Pennsylvania
                    (D.C. Civil No. 04-cv-00840)
               District Judge: Hon. Arthur J. Schwab
                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 25, 2006

                BEFORE: SMITH, FISHER and COWEN, Circuit Judges

                                  (Filed: March 6, 2007)


                                        OPINION


COWEN, Circuit Judge.

       Appellants Brandon Livingston, Mark Livingston, Lorraine Livingston, Kazmarae

Livingston (the “Livingstons”), Wanda Jones-Dixon, and Rene Surgest brought this

action against appellees the Borough of McKees Rocks (the “Borough”), Officer Shawn

Barger, the McKees Rocks Police Department, and K-9 Officer Dolpho, presenting a

variety of civil rights claims. On August 17, 2005, the District Court granted appellees’

motions for summary judgment as to all federal claims and claims arising under the

Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat. §§ 1421-1428, while dismissing

appellants’ other state claims without prejudice. Appellants now challenge that order.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1



  1
    We review a district court's order granting a motion for summary judgment under a
plenary standard, applying the same test employed by the District Court under Federal
Rule of Civil Procedure 56(c). Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669,
679 (3d Cir. 2003). Summary judgment is appropriate if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is

                                             2
                                               I.

         The Livingstons’ claims concern an unfortunate June 7, 2000 incident in which

Brandon Livingston was attacked by a McKees Rocks K-9 police dog (Dolpho) while the

K-9 was ostensibly under the control of Officer Barger. After the episode, Lorraine

Livingston, Brandon’s mother, made comments on various media outlets criticizing the

McKees Rocks police department for allowing the attack to occur. Thereafter, according

to the Livingstons, the police began targeting them; more specifically: (1) the Livingstons

received a notice warning them to cut their grass, even though their neighbors, whose

grass was higher, did not; (2) the police department stopped their son, Chai, for running a

stop sign and called him “boy”; and (3) the police generally harassed the family by

driving through their neighborhood and watching them. Ultimately, the Livingstons

brought state-law claims regarding Brandon’s injuries and 42 U.S.C. § 1983 claims

alleging First Amendment retaliation, racial profiling, and failure to train.

         Initially, we agree with the District Court that Dolpho, as a dog, and the police

department, as an inseparable component of the Borough, see Rhodes v. McDannel, 945

F.2d 117, 120 (6th Cir. 1991); Pahle v. Colebrookdale Twp., 227 F. Supp. 2d 361, 367

(E.D. Pa. 2002), are improper parties to this lawsuit.2 We also conclude that the District


entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In making this
determination, we view the facts in the light most favorable to the non-moving party.
Further, we may affirm for any reason supported by the record. Nicini v. Morra, 212 F.3d
798, 805 (3d Cir. 2000).
  2
      This also applies to claims brought by appellants Jones-Dixon and Surgest.

                                               3
Court did not abuse its discretion by dismissing Kazmarae Livingston’s claims for failure

to prosecute. Given that Kazmarae has not shown up for depositions, has failed to

cooperate with discovery, has been unavailable for medical evaluations, and that her

whereabouts are currently unknown, we are convinced that the District Court’s decision is

in accordance with Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.

1984).

         The Livingstons’ constitutional claims fare no better. To establish a First

Amendment retaliation claim, the Livingstons must show: “(1) that [they] engaged in

protected activity; (2) that the government responded with retaliation; and (3) that the

protected activity was the cause of the retaliation.” Estate of Smith v. Marasco, 318 F.3d

497, 512 (3d Cir. 2003). Even assuming the first two prongs are met, this claim cannot

succeed because the Livingstons have failed to present any evidence showing that their

protected speech (critical statements made to the media) was the cause of the police

officers’ conduct. The only evidence supporting causation is the fact that the adverse

actions followed the speech; however, the temporal proximity between the two must be

“unusually suggestive” before we will infer a causal link. Id. Here, the Livingstons have

failed to provide a precise chronology of events; no reasonable jury could infer causation

based solely on such a vague temporal connection.

         The Livingstons next challenge the District Court’s grant of summary judgment as

to their racial profiling claim. In order to make out a profiling claim, the Livingstons


                                               4
must establish that the actions of the officers “(1) had a discriminatory effect and (2) were

motivated by a discriminatory purpose.” Bradley v. United States, 299 F.3d 197, 205 (3d

Cir. 2002). This claim suffers from two fatal shortcomings. First, the Livingstons lack

standing to bring claims resting on the legal rights of third parties, see Powers v. Ohio,

499 U.S. 400, 410 (1991), and the bulk of their racial profiling allegations concern third-

party injuries. Second, to prove discriminatory effect, the Livingstons were required to

present evidence that similarly situated members of an unprotected class were not

subjected to the same adverse treatment, Bradley, 299 F.3d at 206, which they have not

even attempted to do. Thus, we affirm the District Court’s order granting summary

judgment to appellees on this claim.

       Finally, the Livingstons challenge the judgment on their failure-to-train claim

concerning Dolpho and Officer Barger. “A plaintiff pressing a § 1983 claim must

identify a failure to provide specific training that has a causal nexus with their injuries

and must demonstrate that the absence of that specific training can reasonably be said to

reflect a deliberate indifference to whether the alleged constitutional deprivations

occurred.” Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997). The Livingstons

have failed to identify the specific training that they believe should have been offered;

indeed, the only evidence in the record is that Barger and Dolpho were extensively trained

and that Dolpho passed certification tests each year. The fact that Dolpho attacked

Brandon does not lead ineluctably to the conclusion that Barger and Dolpho were


                                               5
inadequately trained. See City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989)

(“[A]dequately trained officers occasionally make mistakes; the fact that they do says

little about the training program or the legal basis for holding the city liable.”). Thus, we

agree with the District Court that the Livingstons failed to present evidence that would

allow a reasonable jury to conclude that the injuries to Brandon were caused by the

Borough’s failure to provide adequate training.

       Given that we conclude that the District Court correctly granted summary

judgment to appellees on all of the Livingstons’ federal claims, we also rule that it was

appropriate for the Court to decline to exercise supplemental jurisdiction over the

Livingstons’ state claims.

                                              II.

       Wanda Jones-Dixon, an African-American woman who during the time relevant to

this lawsuit was a Borough councilwoman, appeals the District Court’s decision to grant

summary judgment to appellee Borough on her 42 U.S.C. § 1983 claims alleging racial

harassment and First Amendment retaliation and her claim under the Pennsylvania

Whistleblower Law. Jones-Dixon’s claims are based on a variety of mistreatment she

claims to have suffered at the hands of Borough employees, including her: receiving

death threats as a result of her complaints about illegal Borough dumping procedures in

1996; being called racial epithets because she attempted to commission a study of racial

profiling in 2000; being threatened for attempting to challenge the conduct of a police


                                              6
officer in 1994; and receiving threatening and hang-up phone calls and being warned to

shut up by Borough Police Officer Conners in 2002 immediately after blasting the

Borough for allowing Dolpho to attack Brandon Livingston.

       The District Court was correct to conclude that the majority of Jones-Dixon’s

claims are time-barred under both § 1983 and the Pennsylvania Whistleblower Law. In

Pennsylvania, § 1983 actions are subject to a two-year statute of limitations, Sameric

Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3rd Cir. 1998); the

Whistleblower Law has a statute of limitations of 180 days, 43 Pa. Cons. Stat. § 1424(a).

Jones-Dixon filed this lawsuit on June 7, 2004, and accordingly, § 1983's statute of

limitations bars any claims that accrued before June 7, 2002, and the Whistleblower

Law’s statute of limitations bars any claims that accrued before December 10, 2003.

Almost all of the alleged retaliatory conduct occurred before June 7, 2002, let alone

December 10, 2003. Thus, all of Jones-Dixon’s Whistleblower Law claims are time-

barred, and all of her § 1983 claims are time-barred except those alleging retaliation for

her outspoken criticism of the Borough concerning the Dolpho affair.3

       Even Jones-Dixon’s timely retaliation claim cannot provide her with relief. She

has sued only the Borough, and when a suit is based on § 1983, a municipality cannot be



  3
    Jones-Dixon argues that none of these claims should be time-barred because they
represent a continuing violation. However, we have explained that “causes of action that
can be brought individually expire with the applicable limitations period,” O'Connor v.
City of Newark, 440 F.3d 125, 128 (3d Cir. 2006), and each of the challenged incidents
was individually actionable as a First Amendment retaliation claim when it occurred.

                                             7
liable under a theory of respondeat superior; rather, “the municipality can only be liable

when the alleged constitutional transgression implements or executes a policy, regulation

or decision officially adopted by the governing body or informally adopted by custom.”

Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Here, Jones-Dixon stated

that she did not know who was making the threatening phone calls, and presented no

evidence that Officer Conners’ belligerent conduct was part of the Borough’s operating

procedure or ordered by a Borough decisionmaker. Thus, no reasonable juror could

conclude that the mistreatment Jones-Dixon suffered was the result of a Borough policy,

and we affirm the District Court’s judgment against Jones-Dixon.

                                             III.

       Rene Surgest, an African-American woman who was a dispatcher at the Borough’s

police department, also appeals the District Court’s disposition of her claims. She

brought claims against the Borough under the Pennsylvania Whistleblower Law and 42

U.S.C. § 1983, alleging that she was racially harassed at work and that she was

discharged from her position in retaliation for reporting unlawful activities of the

Borough.

       As noted above, § 1983 claims have a two-year limitations period and

Whistleblower Law claims have a 180-day limitations period. Because Surgest filed her

complaint on June 7, 2004, any § 1983 claims that accrued before June 7, 2002 and any

Whistleblower Law claims that accrued before December 10, 2003 are time-barred. This


                                              8
includes Surgest’s retaliation claim concerning the workers’ television being confiscated,

which occurred sometime before 2000, and her retaliation claim concerning a dispute

about her sick leave, which occurred in 2001.

       Surgest’s other retaliation claim alleges that she was discharged from her job

because she complained to the FBI about the police force’s racial profiling, committing

civil rights abuses, and maintaining a hostile work environment. The analysis under §

1983 and the Whistleblower Law is similar. A public employee's claim of First

Amendment retaliation is subject to a three-step test: (1) “the employee must show that

the activity is in fact protected”; (2) “the employee must show that the protected activity

was a substantial factor in the alleged retaliatory action”; and (3) ”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.” Hill v. City of Scranton, 411 F.3d

118, 125 (3d Cir. 2005) (internal quotation marks, citations omitted). As relevant to this

case, the Whistleblower Law provides that “It shall be a defense to an action under this

section if the defendant proves by a preponderance of the evidence that the action by the

employer occurred for separate and legitimate reasons, which are not merely pretextual.”

43 Pa. Cons. Stat. § 1424(c). Here, the District Court correctly concluded that Surgest

has failed to present sufficient evidence for a reasonable juror to find in her favor under

either statute. The Borough has presented evidence that it discharged not only Surgest,

but all of its dispatchers because it joined the county-wide 911 emergency-response


                                              9
system. Surgest has failed to proffer any evidence challenging that explanation; indeed,

she stated that the Borough was “well within [its] rights to eliminate that job.” Thus, we

affirm the District Court’s grant of summary judgment against Surgest’s only non-time-

barred retaliation claim.4

                                            IV.

       For the foregoing reasons, the judgment of the District Court entered on August

17, 2005, will be affirmed




  4
    The filings are unclear as to whether Surgest, by claiming that the Borough has shown
a pattern and practice of racial harassment, aimed to present a hostile-work-environment
claim, or whether, consistent with all appellants’ propensities, she was complaining about
injuries to third parties that she has no standing to challenge. Regardless, the ambiguity is
of no moment, because no reasonable jury could conclude that Surgest was subjected to a
hostile work environment because of her race. In order to prove the existence of a hostile
work environment, Surgest must show that she suffered “severe or pervasive”
discrimination because of her race. Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006).
The only evidence of racial animus Surgest presented is that officers directed racial
epithets to prisoners (not to Surgest or other employees), and that she once stumbled upon
a sound clip in an officer’s computer from the movie Blazing Saddles that contained an
epithet. These allegations are wholly insufficient to demonstrate a hostile work
environment. See Caver v. City of Trenton, 420 F.3d 243, 263 (3d Cir. 2005). Even
accepting that each incident of (non-time-barred) facially neutral mistreatment that
Surgest complained of was also racially motivated, a reasonable jury could not have
found those isolated incidents of harassment were severe or pervasive. Cf. Cardenas v.
Massey, 269 F.3d 251, 262 (3d Cir. 2001).

                                             10
