                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-14-2004

Ober v. Brown
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3754




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 03-3754


                                 DARRELL G. OBER,

                                                      Appellant

                                           v.

                    CAPTAIN RICK BROWN; SYNDI GUIDO;
                   BARBARA CHRISTIE; JOANNA REYNOLDS




                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          D.C. Civil Action No. 02-cv-02186
                   District Judge: Honorable Christopher C. Conner


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 29, 2004

            Before: AMBRO, BECKER and GREENBERG, Circuit Judges

                             (Opinion filed: July 14, 2004)




                                      OPINION


AM BRO, Circuit Judge

      Darrell G. Ober appeals the District Court’s order dismissing his action against
counsel (and their investigator) who defended their clients against Ober in a prior

lawsuit. Ober alleges that defendants’ actions during that litigation were taken in

retaliation against him for exercising his First Amendment right of free speech. Because

we conclude that Ober’s complaint failed to state a viable First Amendment retaliation

claim, we affirm.

                                            I.

       In 1998, Ober, a police officer with the Pennsylvania State Police (“PSP”),

learned that an FBI agent was investigating the allegation that one of the PSP troopers

was taking bribes. Ober did not report this information to his direct superiors, even

though an established PSP regulation required him to do so. Instead, he discussed the

matter with a Deputy Commissioner of Staff, who was outside the chain of command.

       Believing that certain officials of the PSP took various adverse employment

actions against him in retaliation for exercising his First Amendment right to bypass the

chain of command when discussing matters of public concern, in January 2001 Ober

brought an action against them in the United States District Court for the Middle District

of Pennsylvania. He later added a claim for abuse of legal process, alleging that Syndi

Guido and Joanna Reynolds, counsel for defendants, misled the Court. The District

Court dismissed Ober’s claim against Guido and Reynolds, explaining that filing a

motion to dismiss in defense of the lawsuit was not an abuse of legal process.

       With respect to Ober’s underlying First Amendment retaliation claim, the District


                                             2
Court denied defendants’ summary judgment motion.1 We reversed, holding that

defendants were entitled to summary judgment because Ober did not engage in any

constitutionally protected speech. Ober v. Evanko, No. 02-3725, 2003 WL 22596339, at

*5 (3d Cir. Oct. 21, 2003) (“Ober was required by regulation to report his conversation to

his supervisor; his decision to go outside of the appropriate hierarchy is not a

constitutionally protected free speech right . . . .”).2 We also noted that “none of [the

alleged adverse employment] actions [against Ober] affected Ober’s rank, pay, benefits

or status.” Id. at *2.

         In November 2002, while the appeal of Ober I was pending, Ober brought the

current action in the United States District Court for the Middle District of Pennsylvania

against Guido, Reynolds, and Barbara Christie (all of whom were counsel for the Ober I

defendants), and Rick Brown, an investigator for defendants’ counsel in Ober I. Ober

alleged that during the course of the Ober I litigation defendants committed numerous

acts of misconduct, including presenting false testimony, unlawfully acquiring irrelevant

personal information to intimidate him, attacking his key witness and manipulating the

witness’ responses intentionally to discredit him, creating a legally irrelevant false fact

scenario, and failing to disclose the names of their witnesses. Ober asserted that these

actions were taken to retaliate against him for exercising his First Amendment right to

  1
      That motion was based on qualified immunity grounds.
  2
    Thus we did not need to decide, and did not decide, whether defendants were entitled
to qualified immunity.

                                              3
file Ober I. Defendants moved for judgment on the pleadings under Federal Rule of

Civil Procedure 12(c). The District Court granted the motion, concluding that Ober

failed to state a cause of action for the First Amendment retaliation claim. He appeals.3

                                             II.

         When a Rule 12(c) motion alleges plaintiff’s failure to state a claim upon which

relief can be granted as here, we analyze the motion under the same standard as a Rule

12(b)(6) motion to dismiss. Turbe v. Government of Virgin Islands, 938 F.2d 427, 428

(3d Cir. 1991). Therefore, our review of the District Court’s order to dismiss is plenary

and we affirm only if no relief could be granted after accepting all factual allegations in

the complaint as true and drawing all reasonable inferences in favor of the plaintiff. Id.

                                             III.

         To prevail on his First Amendment retaliation claim, Ober must establish that: (a)

he engaged in activity protected by the First Amendment; (b) defendants retaliated in

response; and (c) defendants could not rebut the claim by demonstrating that they would

have taken the same action even in the absence of the protected speech. Baldassare v.

State of New Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001). Although Ober’s filing of a

suit is protected under the First Amendment, Anderson v. Davila, 125 F.3d 148, 161 (3d

Cir. 1997), he obviously fails to satisfy the second prong; he does not provide us with

any factual or legal support for his contention that the alleged actions the attorneys and


  3
      We have jurisdiction under 28 U.S.C. § 1291.

                                              4
their investigator took were retaliation against him for his filing a lawsuit, as opposed to

the actions merely taken for the purpose of defending a lawsuit. All he asserts is how

inappropriate, distasteful, or unlawful defendants’ conduct was during the litigation.

Thus we agree with the District Court that what Ober is essentially alleging is nothing

more than defendants’ misconduct in the course of representing their clients, which, if

true, should have resulted in sanctions assessed by the Ober I Court. See Heffernan v.

Hunter, 189 F.3d 405, 413 (3d Cir. 1999).

       Ober also contends that defendants acted beyond the scope of their representation

when they committed the alleged misconduct. As whether defendants acted within the

scope of their representation has no bearing on the question of whether their conduct was

retaliatory, we do not address this issue.

                                       * * * * *

       Accordingly, we affirm the District Court’s order dismissing Ober’s complaint.




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