                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 12-3229
                                    ____________

          MELVIN S. LOCKETT; JANIS NIEMIEC; MARTIN A. KOVACS,

                                      Appellants

                                          v.

              PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
              JOHN WETZEL; RANDY BRITTON; MARDI VINCENT
                             ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. No. 2-11-cv-01314)
                     District Judge: Honorable Joy Flowers Conti
                                    ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 15, 2013

             Before: SMITH, FISHER and CHAGARES, Circuit Judges.

                                 (Filed: July 2, 2013)
                                    ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      Plaintiffs Melvin Lockett, Janis Niemiec, and Martin Kovacs, former employees

of the Pennsylvania Department of Corrections (the “DOC”), brought suit against
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Defendants John Wetzel, Randy Britton, Mardi Vincent, and the DOC, asserting a claim

under the Due Process Clause of the Fourteenth Amendment. The District Court granted

Defendants‟ motion to dismiss for failure to state a claim. For the reasons stated below,

we will affirm.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of the case. Therefore, we will set forth only those facts necessary to our

analysis.

       As recently as 2011, Lockett was the superintendent of SCI-Pittsburgh, while

Niemiec and Kovacs were both deputy superintendents. Plaintiffs worked for the DOC,

whose management included Secretary of Corrections Wetzel, Deputy Secretary of

Corrections Britton, and Deputy Secretary of Corrections Vincent. On May 2, 2011,

Plaintiffs‟ employment was terminated amidst media scrutiny of alleged sexual abuse at

the prison. That same day, Wetzel publicly announced that SCI-Pittsburgh would be

moving in a “new direction.” Am. Comp. ¶ 49.

       On October 14, 2011, Plaintiffs brought suit in the U.S. District Court for the

Western District of Pennsylvania under 42 U.S.C. § 1983, alleging that Defendants

violated Plaintiffs‟ First Amendment right to freedom of association, along with the

Pennsylvania Whistleblower Law, 43 P.S. § 1421 et seq. Plaintiffs‟ amended complaint

of March 9, 2012, replaced the First Amendment claim with a Fourteenth Amendment


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claim, which alleged that Wetzel‟s statement created a defamatory impression in the

public that Plaintiffs had permitted sexual abuse of inmates or had refused to stop such

abuse, which deprived Plaintiffs of a liberty interest in their reputations without due

process.

       On July 13, 2012, the District Court granted Defendants‟ motion to dismiss. The

District Court specifically held that Plaintiffs‟ Fourteenth Amendment claim failed to

include “factual allegations sufficient for the court to infer plausibly that Plaintiffs can

meet the first requirement of the „stigma-plus‟ test” set out in Hill v. Borough of

Kutztown, 455 F.3d 225 (3d Cir. 2006). The District Court then dismissed the state-law

claim without prejudice. On August 8, 2012, Plaintiffs filed a timely notice of appeal.

                                              II.

       The District Court exercised jurisdiction under 28 U.S.C. § 1331. We have

appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district

court‟s order granting a motion to dismiss for failure to state a claim. Grier v. Klem, 591

F.3d 672, 676 (3d Cir. 2010).

       “To survive a motion to dismiss, the factual allegations of a complaint must be

enough to raise a right to relief above the speculative level and the complaining party

must offer more than labels and conclusions or a formulaic recitation of the elements of a

cause of action.” W. Run Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712 F.3d

165, 169 (3d Cir. 2013) (internal quotations and citations omitted).


                                               3
                                             III.

       Plaintiffs raise one relevant issue on appeal: whether the District Court erred

when it dismissed Plaintiffs‟ Fourteenth Amendment due process claim.1 Plaintiffs assert

that Defendants, with respect to Wetzel‟s “new direction” statement, deprived them of a

liberty interest in their reputations without due process. The District Court, however,

correctly dismissed Plaintiffs‟ due process claim because Plaintiffs failed to allege facts

sufficient for the court to plausibly infer that they could meet the requirements of Hill‟s

“stigma-plus” test. Specifically, Plaintiffs failed to allege facts that would support a

finding that Wetzel‟s public remarks were substantially and materially false.

       In order to make out a due process claim for deprivation of a liberty interest in

one‟s reputation, a plaintiff must show a stigma to his or her reputation plus some

concomitant deprivation of an additional right or interest. Hill, 455 F.3d at 236. This is

known as the “stigma-plus” test. Id. A defamatory statement by a government employer,

combined with a termination, satisfies the “stigma-plus” test: the defamatory statement

constitutes the stigma, and the termination constitutes the plus. Id. at 236, 238. In order

to satisfy the stigma prong of the “stigma-plus” test, a plaintiff must show that (1) the

alleged stigmatizing statement was made publicly; (2) the statement was substantially and


       1
         Although Plaintiffs have spilled a significant amount of ink arguing that
Defendants violated their First Amendment rights, Plaintiffs did not allege a First
Amendment violation in their amended complaint, and the District Court (correctly) did
not address Plaintiffs‟ First Amendment claim. Therefore, Plaintiffs‟ First Amendment
claim is not properly before this Court.

                                              4
materially false; and (3) the reputational harm was caused by the falsity of the statement.

See id. at 236; Ersek v. Twp. of Springfield, 102 F.3d 79, 83-84 (3d Cir. 1996).

       Plaintiffs have not alleged facts sufficient to satisfy the falsity aspect of the stigma

prong. The alleged facts do not support a finding that Wetzel‟s statement – that the

prison was moving in a “new direction” – was substantially and materially false. Given

its vague nature, Wetzel‟s statement cannot easily be proven false. Plaintiffs argue that

because some policies and procedures remained unchanged at SCI-Pittsburgh, and

because the new superintendent made statements praising the “professionalism and

teamwork evident in the facility” shortly after Plaintiffs‟ departure, see Am. Comp. ¶ 59,

Wetzel‟s statement is demonstrably false in a substantial and material way. However,

even if we were to ignore the new supervisor‟s additional statement that “[s]ome areas

were tweaked or modified for better operating efficiency or for the enforcement of

security practices,” id., these alleged facts at most support a plausible inference that the

replacements did not conduct a complete overhaul of the prison and that the replacements

were pleasantly surprised with the caliber of the staff; they do not support a plausible

inference that Wetzel‟s “new direction” statement was substantially and materially false.

Therefore, Plaintiffs cannot satisfy the stigma-plus test.

                                             IV.

       For the foregoing reasons, we will affirm the District Court‟s order granting

Defendants‟ motion to dismiss.


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