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


8-29-2005

Bradshaw v. Middletown
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2933




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Recommended Citation
"Bradshaw v. Middletown" (2005). 2005 Decisions. Paper 646.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/646


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                                                    NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                          No. 04-2933


                WAYNE BRADSHAW, ET AL.

                Michael Rubino, Gerald Weimer,
                Nina Rubino, Christine Weimer,

                           Appellants

                               v.

            TOWNSHIP OF MIDDLETON, ET AL.




         On Appeal from the United States District Court
                   for the District of New Jersey
                      (D.C. No. 02-cv-05225)
        District Judge: Honorable Hon. Mary Little Cooper




                    Submitted June 6, 2005
Before: FUENTES, VAN ANTWERPEN, and BECKER, Circuit Judges.

                     (Filed August 29, 2005)

                     OPINION OF THE COURT
FUENTES, Circuit Judge.

       Plaintiffs Michael Rubino and Gerald Weimer (“the officers”) appeal from an

order of the District Court granting the defendants’ motion to dismiss made pursuant to

Fed. R. Civ. Pro. 12(b)(6). The case before us is the remnants of a confusing complaint

filed by six plaintiffs– four officers plus the wives of Weimer and Rubino– asserting

various causes of action against Defendants Township of Middletown (“Township”),

Township of Middletown Police Department (“Police Department”), Public Safety

Director Robert Czech (“Czech”), Police Chief John Pollinger (“Pollinger”), Police

Lieutenant Robert Morrell (“Morrell”), and others. Only the claims of Rubino and

Weimer are at issue before us. Rubino and Weimer contend that the District Court erred

in dismissing their allegations under 42 U.S.C. § 1983 that the defendants violated the

officer’s First Amendment rights and failed to train its employees.

       We affirm substantially for the reasons expressed in the thorough and persuasive

opinion of the District Court. We add the following to underscore our own agreement

with that decision.

                            I. Facts and Procedural History

       The facts and procedural history are complicated and adequately set forth in the

District Court opinion. Because we write only for the parties, we only recount the most

necessary of facts. The facts forming the basis of the appeal are related to two discrete

and disconnected events which the officers suggest are somehow linked.
       The first incident, concerns primarily Rubino, and involves the officers’ activities

around September 11, 2001. On September 11, Rubino and other officers were directed

by Chief Pollinger to go to New York City on to assist with the rescue efforts. On

September 12, however, Pollinger declined to authorize Middletown police officers to

assist in New York City because he believed no assistance was needed from the

Middletown police. On September 13, Rubino informed Pollinger that assistance was

needed in New York City and that he wanted to go to New York to help. Pollinger

instructed Rubino that Middletown police officers were not to go to New York City, to

which Rubino replied that he would take a personal day off from work in order to go

assist. Pollinger initially said that he would not allow Rubino to use his personal day for

that purpose, but eventually relented when he realized Rubino was intent on going and

allowed a small group of officers, including Rubino and Weimer to go to New York City.

On September 13 , a police sergeant called Rubino at Ground Zero to inform him that

Pollinger was ordering all Middletown officers to return. Rubino protested to the

sergeant that all the officers were being utilized, and the sergeant passed along the

information to Pollinger. Pollinger did not change his mind and insisted that all the

Middletown officers leave. Rubino worked at Ground Zero until 4 AM on September

14.1 On September 14 th , Rubino was summoned to Pollinger’s office upon reporting to


       1
        Because the record does not indicate when the sergeant spoke to Rubino, we are
unable to determine whether Rubino disobeyed Pollinger’s order to return to Middletown
by staying at Ground Zero until 4 AM.
work. At that time, Pollinger stated no officers could assist even during their off-duty

time. Pollinger further ordered that no officer should wear a badge or any other item

identifying him as a Middletown police officer. At some point during this conversation,

Rubino commented that Morrell misrepresented the Middletown Police Department’s role

in the rescue efforts of September 11 and Pollinger became agitated.

       Rubino alleges that he was retaliated in the following ways for his actions related

to September 11:

        Effective September 28, 2001, with three days notice, Rubino was relieved
       of his command and transferred to the Patrol Division as a shift
       commander. Pollinger would not discuss the transfer with Rubino nor with
       Rubino’s superior officer. Czech was quoted in a newspaper as stating that
       Rubino had been reassigned because he had not complied with the
       directives of a supervisor. As a result of this transfer, Rubino had to
       purchase a car because he was no longer entitled to one from the Police
       Department as was the case when he was a Detective Lieutenant.

       In January 2002, a computer Rubino had ordered was missing and nearly
       $800 was taken out of Rubino’s pay without notice or a hearing. Rubino
       was charged with neglect of duty, but these charges were dismissed in
       arbitration.

       In Spring of 2002, Pollinger added an addendum to Rubino’s review
       claiming that he was unprofessional and insubordinate without notifying
       Rubino or his supervisor contrary to the rules.

       At some unspecified date, Rubino requested to attend some training classes
       and his requests were denied. He specifically noted that his request to
       attend the Narcotics Officer Convention, which he attended every year since
       1984, was denied.

       The Police Department did not pay his dues for the National Narcotics
       Association, in contravention of a fifteen year practice doing so.
Appellant Br. at 15-17.

       The second incident, concerns primarily Weimer, and involves inappropriate

conduct on the part of Morrell. On or about April 20, 2002, Morrell sent a package

containing horse manure and a threatening note to the homes of Weimer and Rubino and

two other officers. Weimer went to Morrell’s residence to return the box and to

complain, but Morrell did not answer the door. It appears that Weimer left the box at

Morrell’s residence. Morrell contacted the police and accused Weimer of criminal

mischief while omitting that he himself had originally sent the package. For a time

period, Weimer was the subject of an Internal Affairs Investigation until Morrell admitted

to originally sending the package. Almost a month later, in May 2002, Morrell, in his

pick-up truck, followed Weimer through various Township streets for no apparent reason.

Weimer documented and reported this incident in a memo to Detective Lieutenant

Michael Cerame. Weimer and the other recipients eventually made a formal request for

an Internal Affairs Investigation. Shortly thereafter, Pollinger suggested that the Officers

seek counseling.

                          II. Jurisdiction and Standard of Review

       We have jurisdiction pursuant to 28 U.S.C. § 1291 to hear this appeal. This Court

exercises plenary review over a District Court’s grant of a motion to dismiss pursuant to

Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Nami v. Fauver, 82 F.3d 63, 65. We

take all factual allegations and reasonable inferences as true and views them in the light
most favorable to the Plaintiff. Morse v. Lower Merion School District, 132 F.3d 902,

906 (3d Cir. 1997). Any questions of law presented by this appeal are reviewed de novo.

United States v. Hendricks, 395 F.3d 173, 176 (3d Cir. 2005).

                                      III. Discussion

       The officers allege violations of 42 U.S.C. § 1983 which provides a cause of

action against a person who, acting under color of state law, deprives another of a

constitutional or federal right. Gibson v. Superintendent of N.J. Dep’t of Law & Pub.

Safety-Division, 411 F.3d 427, 433 (3d. Cir. 2005) Thus, to state a claim under § 1983,

the officers must demonstrate “(1) of what constitutional or federal right [they were]

deprived, and (2) how [they were] deprived of that right under color of state law. Id.2

                                   A. First Amendment

       We first address the officers’ claim that their First Amendment rights were

violated because they experienced retaliation for engaging in protected speech. Rubino

claims he experienced retaliation for expressing concern over the Police Department’s

response to the attacks of September 11, 2001. Weimer claims he experienced retaliation

for expressing his concern over Morrell’s behavior. A public employee’s retaliation




       2
        At the outset, the District Court dismissed Morrell as a defendant because while
there were ample allegations of his misfeasance, the Amended Complaint does not allege
that Morrell retaliated against the plaintiffs for exercise of protected speech. The Officers
challenge this ruling in their reply brief, but we find that the District Court correctly
concluded that the Amended Complaint did not sufficiently alleged a § 1983 claim
against Morrell for First Amendment violations.
claim for engaging in protected First Amendment activity is evaluated under a three-step

process: (1) first, the plaintiff must establish the speech in question was protected in that

it involved a matter of public concern, and the public interest favoring the expression of

that speech must outweigh any injury the speech could cause to the “interest of the State,

as an employer, in promoting the efficiency of the public services it performs through its

employees,” (2) second, the plaintiff must show that protected activity was a substantial

or motivating factor in the alleged retaliatory action, (3) finally, the public employer can

rebut the claim by demonstrating that the same decision would have been reached even in

the absence of the protected conduct. Baldassare v. New Jersey, 250 F.3d 188, 194-95

(3d Cir. 2001) (citing Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will

County, 391 U.S. 563, 568 (1968)). Both of the officers’ First Amendment claims fail to

satisfy the first step.

1. Rubino

       We take no issue with Rubino’s contention, and the District Court’s conclusion,

that Rubino’s conversation with Pollinger expressing concern over the Police

Department’s response to September 11 was a matter of public concern. Rubino’s

concern, however, took the form of challenging Pollinger’s orders– persistently,

flagrantly, and in front of others. We agree with the District Court that Rubino’s

expression of his concern was outweighed by the public interest in maintaining

obedience, order, and discipline in the police department, especially in the time of crisis
that was the time period immediately following the attacks of September 11.

Accordingly, we discern no error with the District Court’s dismissal of Rubino’s First

Amendment claim.3

2. Weimer

       Weimer’s argument that his First Amendment rights were violated is similarly

unpersuasive. Weimer fails to show how his memo to Cerame, set out in the facts,

regarding Morrell’s behavior constitutes speech that is a “matter of public concern” as

opposed to speech asserting Weimer’s own interests and issues. Moreover, the only act

committed by Pollinger or any others in the police department directed towards Weimer

was the suggestion that Weimer, and the other officers, seek counseling. Morrell cannot

credibly construe Pollinger’s suggestion to seek counseling as retaliation when the

officers claim they were traumatized by Morrell’s actions. We therefore affirm the

District Court’s order with respect to the dismissal of Weimer’s First Amendment claim.

                                    B. Failure to Train

       Finally, the officers argue that the Township is liable under § 1983 for failing to

train, supervise, and monitor its employees. The District Court correctly noted that a


       3
        The officers’ brief hints that Rubino also has a first amendment retaliation claim
arising out of the incident with Morrell. This is wholly unpersuasive. While the
Amended Complaint maintains that Rubino joined the other officers in requesting an
internal affairs investigation of the incident with Morrell, the complaint does not identify
speech specifically made by Rubino with respect to this request, nor is there any link
made between the alleged retaliatory acts Rubino suffered and any speech he engaged in
with respect to Morrell’s activities.
municipality can be held liable for failing to train its employees when the municipality’s

failure shows “a deliberate indifference to the rights of its inhabitants,” Canton v. Harris

489 U.S. 378, 389 (1989) (internal quotation marks omitted), and that no such deliberate

indifference on the part of the municipality was alleged.

       The entirety of the Officers’ allegations with regard to this claim is as follows:

               Defendant/Municipality. . . failed to properly train and supervise its
       employees and agents and, as such, the violations that resulted, along with
       failure to train, violate 42 U.S.C. § 1983. Defendant/Municipality failed to
       train its agents to take proper investigatory and remedial action relating to
       the officers’ fear for their safety in their workplace as detailed [in previous
       paragraphs in the Amended Complaint].
               This action violates 42 U.S.C. § 1983 because their actions violate
       the Constitution of the United States, denying Plaintiff of life, liberty and
       property and the pursuit of happiness, and hence, 42 U.S.C. 1983.

Appellant App. Vol II. at 107(a).

       In the Amended Complaint, the Officers did not identify any examples of specific

training that the Township failed to provide.4 If the Officers were unable to provide

specific examples of training needed, it cannot be said that the need for more or

additional training is so obvious as to constitute deliberate indifference on the part of the




       4
        In the briefs submitted to this Court, the Officers note that no Defendants
attempted to ascertain Morrell’s psychiatric stability, nor did the Township institute
policies or training relating to the identification and control of police officers who may
commit such conduct. The District Court did not have the opportunity to rule upon
whether the failure to provide such training would constitute deliberate indifference, but
nevertheless, we do not find it unreasonable that the Township did not mandate training
related to police officers who harass other police officers by sending horse manure
through the mail.
Township. Therefore, we find no error in the District Court’s order dismissing the

officers’ failure to train claim.

                                     IV. Conclusion

       We have considered all of the arguments advanced by the parties and conclude that

no further discussion is necessary. Accordingly, the judgment of the District Court will be

affirmed.
