                                                                NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                             ___________

                                     No. 11-2694
                                     ___________


                               WILLIAM SLAVOSKI,
                                           Appellant

                                           v.

                    FRANK PAWLOWSKI; HUASCAR RIVERA;
                       JOHN RICE; MERVIN RODRIGUEZ;
                     FRANCIS J. HACKEN; BRYON DEVLIN;
                      WILLARD OLIPHANT; PEDRO RIVERA

                                     ___________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 3-10-cv-02139)
                     District Judge: Honorable A. Richard Caputo
                                      ___________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 6, 2012

                  Before: SLOVITER, GARTH, Circuit Judges, and
                          PADOVA, ∗ Senior District Judge

                               (Filed: February 7, 2012 )

                                      _________

                                      OPINION
                                      _________

∗
 The Honorable John R. Padova, Senior Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
SLOVITER, Circuit Judge.

       United States Secret Service Agent William Slavoski filed a civil rights complaint

(pursuant to 42 U.S.C. § 1983) against employees of the Pennsylvania State Police

(“PSP”), including Commissioner Frank Pawlowski, Mervin Rodriguez, John Rice,

Francis Hacken, Bryon Devlin, Willard Oliphant, Huascar Rivera, and Pedro Rivera

(collectively “Defendants”). Slavoski alleged that Defendants violated his constitutional

rights by accusing him of using a law enforcement computer database for unauthorized

reasons, unlawfully targeting him, and retaliating against him when he filed formal

complaints against them. The District Court granted Defendants’ motion to dismiss the

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim, and denied Slavoski’s motion for reconsideration of that decision. Slavoski

appealed. We will affirm.

                                             I.

                                       Background

       Because we write primarily for the parties, we will recount only the facts that are

essential to our decision. Slavoski accessed a criminal information databank on behalf of

a member of the Kingston Police Department, Detective David Griffin. Griffin had asked

Slavoski to obtain information about a vehicle because Griffin believed that he was being

stalked. The databank showed that the vehicle was registered to defendant Willard

Oliphant and his son Will. At the time, Oliphant was employed by the Pennsylvania

State Police as a captain.



                                             2
       Apparently motivated by Slavoski’s inquiry on behalf of Griffin, defendant Bryan

Devlin conducted an audit of the databank’s terminal less than two months later. About a

year later, defendant Mervin Rodriguez accused Slavoski of misusing the Commonwealth

Law Enforcement Assistance Network (“CLEAN”) and improperly disseminating

information from it to Griffin. Rodriguez told Slavoski that he would be on probation for

a year. 1 Devlin, Rodriguez, Rivera, and Hacken also acquired Slavoski’s personal

address by auditing the databank. The Defendants continued to investigate Slavoski, and

he remained on probation.

       Slavoski argues that Defendants acted in retaliation for his “innocent and lawful

use” of the databank because it “exposed the Oliphant’s [sic] personally,” in violation of

Slavoski’s First Amendment rights. App. at 25. He also argues that the audit was an

unlawful search in violation of his Fourth Amendment rights, and that his Equal

Protection rights under the Fourteenth Amendment were violated.

                                            II.

                                         Analysis

       The District Court had subject matter jurisdiction over this § 1983 civil rights

action pursuant to 28 U.S.C. §§ 1331 and 1343, and this court has jurisdiction over this

appeal of a final order pursuant to 28 U.S.C. § 1291. We exercise plenary review over a

District Court’s decision to grant a motion to dismiss a complaint pursuant to Rule

12(b)(6). See Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). “To

       1
         The probation that Mr. Rodriguez administered was a probation involving the
use of the “CLEAN” network.

                                             3
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

       We agree with the District Court’s conclusion that Slavoski failed to state a claim

of retaliation in violation of the First Amendment because he was put on probation for his

alleged unauthorized use of the database before he made any complaints against the

Pennsylvania State Police. Therefore, even if we accept that filing those complaints was

protected First Amendment activity, Slavoski failed to allege any facts demonstrating

retaliatory action that occurred in response to that activity. Moreover, actions taken by

Defendants after Slavoski filed his complaints do not qualify as retaliatory actions. See

Eichenlaub v. Township of Indiana, 385 F.3d 274, 282 (3d Cir. 2004) (“In general,

constitutional retaliation claims are analyzed under a three-part test. Plaintiff must prove

(1) that he engaged in constitutionally-protected activity; (2) that the government

responded with retaliation; and (3) that the protected activity caused the retaliation.”).

       We also agree with the District Court’s reasoning as to why Slavoski has failed to

state a claim under the Fourth Amendment: even assuming that Slavoski had a subjective

expectation of privacy as to the information he searched on the database at the computer

terminal at his work, that expectation was objectively unreasonable. See Minnesota v.

Olson, 495 U.S. 91, 95 (1990) (“[C]apacity to claim the protection of the Fourth

Amendment depends . . . upon whether the person who claims the protection of the

Amendment has a legitimate expectation of privacy in the invaded place.”) (internal

quotation marks and citations omitted); see also Rakas v. Illinois, 439 U.S. 128, 143 n.12

                                                4
(1978) (“Obviously, however, a ‘legitimate’ expectation of privacy by definition means

more than a subjective expectation of not being discovered.”).

       The District Court’s reasoning as to why Slavoski failed to state a claim that

Defendants violated his Equal Protection rights is also sound. Slavoski did not allege any

facts showing that he was treated differently than any similarly situated individuals, and

even if he had, the decision as to how to deal with misuse of the databases was solely

within the discretion of the Pennsylvania State Police. See Engquist v. Oregon Dep’t of

Agric., 553 U.S. 591, 603 (2008) (“[T]reating like individuals differently is an accepted

consequence of the discretion granted” when state action involves “discretionary

decisionmaking based on a vast array of subjective, individualized assessments.”).

                                            III.

                                       Conclusion

       For the foregoing reasons, we affirm the District Court’s decision.




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