                                                 NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                   ______________

                         No. 16-3072
                       ______________

           ROBERT G. OTTO; MICHAEL SPICER;
            BRIAN REYNOLDS; PERRY BETTS;
         JOHN SPEISER; THOMAS LICIARDELLO;
                  LINWOOD NORMAN

                               v.

                 R. SETH WILLIAMS;
               CITY OF PHILADELPHIA;
OFFICE OF DISTRICT ATTORNEY PHILADELPHIA COUNTY;
                MICHAEL A. NUTTER;
      POLICE COMMISSIONER CHARLES RAMSEY

     Michael Spicer, Brian Reynolds, Perry Betts, John Speiser,
            Thomas Liciardello and Linwood Norman,

                                    Appellants
                       ______________

        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                (D.C. Civ. No. 2-15-cv-03217)
          Honorable Paul S. Diamond, District Judge
                      ______________

         Submitted under Third Circuit L.A.R. 34.1(a)
                       June 16, 2017

BEFORE: JORDAN, KRAUSE, and GREENBERG, Circuit Judges

                     (Filed: July 27, 2017)
                                       ______________

                                         OPINION*
                                       ______________

GREENBERG, Circuit Judge.

                                  I.      INTRODUCTION

          This appeal presents a central question: whether damages are available for stigma

in a 42 U.S.C. § 1983 “stigma plus interest” claim when the plaintiffs, police officers

with the Philadelphia Police Department, were acquitted of corruption charges at a

criminal trial and successfully sought reinstatement to their positions with back pay.

Because the officers’ criminal trial was a sufficient name-clearing hearing that provided

them with a complete remedy for their reputational harm, we will affirm the District

Court’s dismissal of those claims by an order dated June 6, 2016.



    II.         STATEMENT OF JURISDICTION AND STANDARD OF REVIEW

          The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

appellate jurisdiction based on 28 U.S.C. § 1291.

          We exercise plenary review of a district court’s grant of a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). “To decide a motion to

dismiss, courts generally consider only the allegations contained in the complaint,

exhibits attached to the complaint and matters of public record.” Pension Ben. Guar.

____________________

*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                                2
Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). We must accept

all well-pleaded facts as true and disregard legal conclusions in determining whether the

plaintiff has a plausible claim for relief. Fowler, 578 F.3d at 210-11.



                                III.      BACKGROUND

         We recite the facts as alleged in the Second Amended Complaint, the operative

complaint, that are relevant to this appeal. This case arises out of certain police officers’

terminations following their indictment by a federal grand jury on corruption charges on

which they were subsequently acquitted at a jury trial. Appellants’ br. at 4. At this stage

in the proceedings, the defendants left in this case are the City of Philadelphia, former

City of Philadelphia Mayor Michael Nutter, and former City of Philadelphia Police

Commissioner Charles Ramsey (the “city defendants”).1 The six current plaintiffs, all

Philadelphia police officers formerly in the Philadelphia Police Department’s Narcotics

Field Unit, appeal the dismissal of their lone remaining stigma-plus claim.2 Id.

         A federal grand jury on July 29, 2014 indicted the plaintiffs on corruption

charges.3 App’x at 93. The Philadelphia Police Department consequently terminated


1
    Otto and Williams—original parties named in the caption—are no longer parties.
2
 They are Michael Spicer, Brian Reynolds, Perry Betts, John Speiser, Thomas
Liciardello, and Linwood Norman. Appellants’ br. at 3.
3
 Although it is only tangentially related to the appeal, the Philadelphia District Attorney
sent a letter to Police Commissioner Ramsey on December 3, 2012, stating that the
District Attorney’s Office would no longer use any of those officers but one—Norman,
                                               3
their employment. Id. On July 31, 2014, while the Police Department underwent that

termination process, Mayor Nutter and Commissioner Ramsey held a joint, televised

press conference in which Mayor Nutter called the officers “sick scumbags.” Id. at 94.

In that same conference, Commissioner Ramsey stated that “this is one of the worst

corruption cases that [he had] ever heard,” and claimed that the officers’ police badges

would be destroyed. Id. Those statements made at the press conference are the only ones

on which the officers base their lone remaining stigma-plus claim. Appellants’ br. at 14.

       The officers were acquitted of all 47 charges on May 14, 2015. App’x at 97. The

officers consequently filed individual grievances pursuant to the City of Philadelphia’s

collective bargaining agreement with the City challenging their terminations. Id. at 108.

The arbitration hearing for those grievances led to an order on July 10, 2015, that the

officers be reinstated and provided back pay. Id. at 95, 97, 108. Their personnel records

were also expunged of all references to the discharges, and the City was prohibited from

relying on or referencing the discharges for any employment-related purpose. Id. at 108.

After the acquittals and the arbitration, on July 27, 2015, the Philadelphia Daily News

published an article about the acquittals, quoting Commissioner Ramsey’s earlier, pre-




who nonetheless was indicted later—as witnesses in narcotics cases, would refuse to
bring charges in cases in which one of the officers would be a necessary witness, and no
longer would approve any warrants in narcotics cases when one of the officers was the
affiant in the affidavit on the basis of which warrants were being sought, or the probable
cause portion of the warrant included any averments from him. App’x at 83. All of those
officers were removed from the Narcotics Field Unit, and the District Attorney’s Office
withdrew and dismissed hundreds of drug cases that involved those officers. Id.at 91-92.
                                             4
acquittal statements that the case was one of the worst cases of corruption he had seen

and that the officer’s badges would be melted.4 Id. at 97-98.

       The officers filed their initial suits in state court in June 2015, but they

subsequently were removed to federal court and consolidated into the present case. Id. at

45. In response to the suits, the Philadelphia Inquirer ran an editorial entitled “Laws

Apply to the Police Too” seemingly objecting to the current suit and recounting that

“witnesses accused the officers of acting like street thugs, roughing up suspects, ignoring

due process, planting evidence, pocketing seized money, and lying in police reports. The

squad’s superiors allegedly asked few questions because the unit was so productive.” Id.

at 100-01. It repeated both the comments by Mayor Nutter that the officers were “sick

scumbags” and those by Commissioner Ramsey that it was one of the worst cases of

corruption he had heard. Id. at 101.

       The only claim left on appeal is a stigma-plus due process claim under the

Fourteenth Amendment pursuant to 42 U.S.C. § 1983. Appellants’ br. at 13. The District

Court dismissed that claim because it held that the officers received due process in what

amounted to name-clearing hearings at both the criminal trial and the arbitration. App’x

at 15-16. The officers appealed.




4
  We do not detail the other statements against the officers made by third parties, such as
the Philadelphia Inquirer, or any of the city defendants’ statements that the officers do not
challenge.
                                               5
                            IV.           DISCUSSION

       “[T]o make out a due process claim for deprivation of a liberty interest in

reputation, a plaintiff must show a stigma to his reputation plus deprivation of some

additional right or interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.

2006) (citing Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1161 (1976)).

“[R]eputation alone is not an interest protected by the Due Process Clause.” Versarge v.

Twp. of Clinton, N.J., 984 F.2d 1359, 1371 (3d Cir. 1993) (emphasis added). This type

of claim is commonly referred to as a “stigma-plus” claim. See, e.g., Hill, 455 F.3d at

236.

       We have recognized that a public employee establishes a valid “stigma-plus”

claim when a public employer “creates and disseminates a false and defamatory

impression about the employee in connection with his termination.” Id. (quoting Codd v.

Velger, 429 U.S. 624, 628 (1977)). The “stigma” is the “defamatory impression” and the

“plus” is the loss of the protected property interest of the employment. Id. The

“principal relief” for the “stigma” is a name-clearing hearing. Ersek v. Twp. of

Springfield, 102 F.3d 79, 84 (3d Cir. 1996).

       The officers’ appeal centers on a claim for that relief: they (1) contend that the

criminal trial and arbitration were insufficient name-clearing hearings, appellants’ br. at

25-26, 37, and (2) argue that these hearings are the principal but not sole relief available

to them, id. at 16. We now turn to each of these contentions.




                                               6
       1. The Sufficiency of the Name-Clearing Hearings

       The officers maintain that the two name-clearing hearings—the criminal trial and

arbitration—were insufficient to guarantee that they received due process. With respect

to the criminal trial, they make both substantive and temporal arguments about its

inadequacy: substantively, the criminal trial itself was an incomplete remedy because the

public understands that a “not guilty” verdict does not necessarily mean that the court

found that the defendant in the criminal action was actually innocent, appellants’ br. at

31, and temporally, the trial itself could not have cleared all the stigma because the

stigmatizing press conference statements were republished after the trial. Id. at 37. The

city defendants respond that the officers cannot base a continuing stigma claim on

statements that were not contemporaneous with the deprivation of the property interest.

Appellees’ br. at 13. In addressing the arbitration, the officers contend that it was

designed to protect property rather than reputational interests and exclusively involved

stipulations, therefore it was not an adequate name-clearing hearing. Appellants’ br. at

25-26, 40. The city defendants reply that, inasmuch as the officers chose to pursue

arbitration rather than a public hearing option, they cannot claim that process was

insufficient. Appellees’ br. at 14-15.

       Inasmuch as the officers contend that a criminal trial does not “per se” suffice as a

name-clearing hearing, appellants’ br. at 32, we address the question of whether a

criminal trial is a constitutionally adequate name-clearing hearing for “reputational




                                              7
injury” from alleged criminal conduct.5 See Graham v. City of Philadelphia, 402 F.3d

139, 147 (3d Cir. 2005). The criminal trial “with its stringent procedural safeguards and


5
  We have indicated that the criminal trial needs to have satisfied due process
requirements, Graham, 402 F.3d at 146; in this case, however, the officers fail to allege
any well-pleaded facts that the trial was constitutionally deficient in securing due process.
To argue otherwise, they direct the Court to statements in the complaint that “[t]he case
presented to the jury by the prosecutors against [them] was literally laughable, and,
disgraceful,” app’x at 78, and that there was a “shocking and complete lack of credible
evidence, and shoddy and reprehensible work by prosecutors and investigators,” id. at 61.
The complaint states that “[t]he literally laughable case put on by the United States
Attorney . . . is highly relevant to the instant matter, but obviously the nature of its
astonishing shortcomings cannot be fully or concisely explicated in this Complaint” and
provides no factual allegations of that alleged incompetence. Id. at 102. The complaint
directs the Court to an affidavit about the “thread of inaccuracy, incompetence and bias
weaved throughout the investigation” and “the Government’s laughable while horrifying
incompetencies [sic].” Id. at 103. Nothing in that affidavit properly alleges trial-related
activity that if true violates the officers’ due process rights. See id. at 121-28.

        The officers claim that they could amend their complaint to provide more factual
details of any improprieties in the trial. Appellants’ br. at 34. “Our precedent supports
the notion that in civil rights cases district courts must offer amendment—irrespective of
whether it is requested—when dismissing a case for failure to state a claim unless doing
so would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors,
Inc., 482 F.3d 247, 251 (3d Cir. 2007). The District Court dismissed the case with
prejudice, noting that “[t]his is not a close case. All [of the officers’] claims are either
implausible, non-cognizable, or both.” App’x at 35. We interpret that statement as
meaning that amendment would be futile. See In re Burlington Coat Factory Securities
Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (reading the futility determination into a denial
of a motion for leave to amend when no reason was given). We review this
determination for abuse of discretion. Id. The District Court did not abuse its discretion
in dismissing this case with prejudice when none of the highlighted allegations rise to a
due process violation, as an amendment fleshing out the details of those allegations—in a
third amended complaint—would still fail to state a claim upon which relief could be
granted. See id.

       There is also no merit to the officers’ claim that the name-clearing hearing was
somehow insufficient to remedy the city defendants’ alleged due process violations
because it was brought in federal court rather than in state court. As we held in Graham,
the criminal trial “obviat[es]” the need for a name-clearing hearing. 402 F.3d at 145,
147.
                                             8
difficult burden of proof afford[s] plaintiff[s] more process” than that which is

constitutionally required to clear one’s name.6 Id. at 146 (internal quotation marks

omitted). That trial cleared the officers of the only stigma that they allege—the stigma of

the statements made at the press conference regarding their termination. That those

statements were republished by a third party is irrelevant: they were made before the trial,

and thus the stigma from them was cleared by it.

       As we hold that the criminal trial was a constitutionally sufficient name-clearing

hearing, we decline to consider whether the arbitration was also sufficient as we have no

need to do so. The officers received their due process in restoring their reputations.

       2. Whether Plaintiffs Are Entitled to an Additional Remedy

       We never have held that damages are available as a remedy for the harm to the

reputational interest in a stigma-plus claim. The city defendants contend that a name-

clearing hearing is the sole remedy available. Appellees’ br. at 13. The officers in their

complaint allege damages for “reputations for which they are entitled to have a name[-

]clearing hearing; loss of employment prospects; and, emotional distress.” App’x at 112.

The officers cite dicta contained in a series of footnotes in otherwise-inapposite cases

stating that there may be a situation in which a name-clearing hearing may be insufficient

to remedy the wrong of a damaged reputation, although none of those cases provide an

example of when that would be the case. See Hill, 455 F.3d at 236 n.15 (“We have not in

the past decided—and do not have occasion to decide here—whether a plaintiff who


6
  It thus per se more than satisfies the three-prong balancing test that the officers cite
from Graham. Graham, 402 F.3d at 145-46.
                                               9
prevails on a ‘stigma-plus’ claim may be entitled to remedies other than a name-clearing

hearing.”); Graham, 402 F.3d at 143 n.3 (quoting Ersek, 102 F.3d at 84 n.6) (“We noted

in Ersek that it ‘is unclear whether a plaintiff would be entitled to damages in addition to

or in lieu of a hearing[,]’ but implied that damages might be available because a name-

clearing hearing might not always ‘cure all the harm caused by stigmatizing government

comments.’”).

       We are mindful that we must not “equate a state defamation claim” with a stigma-

plus claim. Kelly v. Borough of Sayreville, N.J., 107 F.3d 1073, 1078 (3d Cir. 1997). As

we hold above, the officers’ criminal trial afforded them the due process remedy for the

harm to their reputation and restored the harm by the “stigma.” The arbitration provided

the officers with full reinstatement and back pay; their employment records were

expunged of any reference to the alleged defamatory statements, and no employment

decision could be based on the conduct for which the officers were acquitted, thus the

arbitration fully remedied the interest in the “plus” part of the claim. While we still

recognize the theoretical possibility that harm to someone’s reputation would not be

recompensed fully by a name-clearing hearing, that is not the situation here. We decline

to determine whether any other damages are available in a stigma-plus claim; suffice it to

say that in this case the outcome of the criminal trial provided the officers with an

adequate remedy to any reputational harm.




                                             10
                              V.       CONCLUSION

      For the foregoing reasons, we will affirm the District Court’s June 6, 2016 order

dismissing with prejudice the officers’ stigma-plus due process claims under 42 U.S.C.

§ 1983.




                                           11
