                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-3-2009

LaPosta v. Roseland
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4333




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Recommended Citation
"LaPosta v. Roseland" (2009). 2009 Decisions. Paper 1939.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1939


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-4333


                                  POLICE OFFICER
                                JOSEPH M. LAPOSTA,
                                                 Appellant

                                            v.

                             BOROUGH OF ROSELAND;
                              RICHARD MCDONOUGH,
                            in his professional and personal
                              capacity, jointly and severally




                    On Appeal from the United States District Court
                              for the District of New Jersey
                                  (Case No. 06-cv-5827)
                  District Judge: The Honorable Dennis M. Cavanaugh
                                      ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     January 6, 2009

            Before: FUENTES and FISHER, Circuit Judges, and PADOVA,
                              Senior District Judge *

                                (Filed: February 3, 2009)
                                      ___________



   *
      Hon. John R. Padova, Senior District Judge for the Eastern District of Pennsylvania,
sitting by designation.
                                OPINION OF THE COURT
                                     ___________

PADOVA, Senior District Judge:

       Appellant Police Officer Joseph LaPosta brought this action against Appellees

Borough of Roseland and Police Chief Richard McDonough, alleging that Appellees

retaliated against him after he attempted to join a police organization of which

McDonough did not approve. The claims at issue are brought pursuant to 42 U.S.C. §

1983 and state tort law. LaPosta now appeals a District Court order granting Appellees’

motions to dismiss. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the

following reasons, we affirm in part, reverse in part, and remand for the District Court’s

consideration of LaPosta’s § 1983 retaliation claim as a claim of retaliation based on

freedom of association.

                                              I.

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

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

analysis. The allegations in the Complaint, which was filed on December 5, 2006, are as

follows. LaPosta was employed as a police officer with the Borough beginning on

December 4, 2001. JA-1, ¶ 1. Prior to that, beginning in the year 2000, he was a civilian

police dispatcher. Id. Defendant McDonough was at all relevant times the Chief of

Police in the Borough. JA-2, ¶ 3. After LaPosta completed his police academy training,

McDonough and other officers under McDonough’s direction forced LaPosta to join the

                                              2
Fraternal Order of Police Union (the “FOP”). JA-2 to JA-3, ¶ 6. When LaPosta

expressed interest in joining an alternative union, i.e., the Policeman’s Benevolent

Association (the “PBA”), McDonough advised LaPosta that neither he nor any other

officers were to have any influence from the PBA. JA-3, ¶ 6. Nevertheless, on or about

April 4, 2004, LaPosta joined the PBA. Id. ¶ 7. According to the Complaint,

McDonough thereafter retaliated against LaPosta, causing “loss of monetary

compensation, loss of promotion potentials, lack of due process and limited associations

both inside and outside of the Police Department.” Id. The Complaint specifically

alleges that, as retaliation, McDonough subjected LaPosta to smoke from cigarettes,

cigars, and scented candles, charged him with insubordination, denied him an earned

stipend, belittled him in front of other officers, filed frivolous I.A.D. claims against him,

and denied him the opportunity to attend career-advancing classes and seminars. See JA-

3 to JA-5, ¶¶ 8-17.

       The Complaint asserts six claims: (1) violation of 42 U.S.C. § 1983, (2) intentional

infliction of emotional distress against only McDonough, (3) hostile work environment,

(4) negligence, (5) intentional interference with prospective economic advantage against

McDonough alone, and (6) conspiracy. JA-6 to JA-12, ¶¶ 18-39. Both the Borough and

McDonough filed motions to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6).

The District Court entered an opinion and order granting the motions.

       In its opinion, the District Court first addressed LaPosta’s § 1983 retaliation claim,



                                              3
concluding that, insofar as that claim was grounded in conduct that pre-dated December

6, 2004, it was barred by New Jersey’s two-year statute of limitations for personal injury

claims. In all other respects, the District Court found the § 1983 claim in the Complaint

to fail to state a claim upon which relief may be granted because LaPosta (1) had failed to

plead that he had exhausted the grievance procedures in the applicable labor contract, and

(2) had failed to plead any underlying violation of the First Amendment right to free

speech, because he had failed to plead that he had spoken on a matter of public concern.

The Court also dismissed LaPosta’s state law tort claims, explaining that (1) LaPosta had

failed to plead that he had served Appellees with notice of his tort claims as required by

the New Jersey Tort Claims Act, (2) the negligence claim was barred by the Workers’

Compensation Act, and (3) LaPosta had failed to allege in his conspiracy claim that

Appellees had been acting outside the scope of their employment when conspiring.

                                             II.

       LaPosta asks us to find that the District Court erred in dismissing the Complaint.

This Court's standard of review of a district court’s decision granting a motion to dismiss

is plenary. See Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). In determining

whether a district court properly dismissed a complaint under Rule 12(b)(6), we are

required to “‘accept all factual allegations as true, construe the complaint in the light most

favorable to the plaintiff, and determine whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief.’” Phillips v. County of Allegheny, 515



                                              4
F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374

n.7 (3d Cir. 2002)). This standard requires that a plaintiff allege in his complaint

“‘enough facts to raise a reasonable expectation that discovery will reveal evidence of’

the necessary element[s]” of a cause of action. Id. at 234 (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007)).

                                             III.

       Appellant first argues that the District Court erred in dismissing his § 1983

retaliation claim because (1) the claim is predicated on retaliation for his exercise of his

freedom of association, not for his exercise of his freedom of speech, and (2) the two year

statute of limitations does not bar any portion of the claim.1 Although LaPosta’s statute

of limitations argument is meritless, we find that the District Court erred in failing to

analyze LaPosta’s retaliation claim as one based on his exercise of his freedom of

association.

                                             A.



   1
    LaPosta also argues that the District Court erred in justifying dismissal of his § 1983
claim based on his failure to exhaust administrative remedies. Exhaustion is not a
prerequisite to the assertion of a § 1983 retaliation claim, and Appellees do not argue
otherwise. See Patsy v. Bd. of Regents of Florida, 457 U.S. 496, 516 (1982) (“[W]e
conclude that exhaustion of state administrative remedies should not be required as a
prerequisite to bringing an action pursuant to § 1983.”); Felder v. Casey, 487 U.S. 131, 148
(1988) (stating that civil rights actions “‘are judicially enforceable in the first instance’”
(quoting Burnett v. Grattan, 468 U.S. 42, 50 (1984))); Hohe v. Casey, 956 F.2d 399, 408-09
(3d Cir. 1992) (stating that state statute may not require individuals to exhaust nonjudicial
remedies before bringing § 1983 action). Accordingly, we cannot affirm the dismissal of
LaPosta’s retaliation claim on the basis of a failure to exhaust.

                                              5
       In dismissing portions of LaPosta’s § 1983 claim on statute of limitations grounds,

the District Court explained that the New Jersey statute of limitations for personal injury

claims provides for a two-year statute of limitations. See Cito v. Bridgewater Twp. Police

Dep’t, 892 F.2d 23, 25 (3d Cir. 1989); N.J.S.A. 2A:14-2. As several of the allegedly

retaliatory actions occurred more than two years before LaPosta filed his December 5,

2006 Complaint, the District Court concluded that they could not give rise to a cognizable

§ 1983 retaliation claim.

       In his appeal, LaPosta does not take issue with the existence of the two-year statute

of limitations or, apparently, with the conclusion that retaliatory actions that occurred

more than two years before the filing of this action are not actionable. He nevertheless

argues that the District Court erred in dismissing his claims based on pre-December 6,

2004 conduct, because evidence of such conduct could be “considered to ‘more

intelligently evaluate the evidence that does create liability.’” Appellant’s Br. at 13

(quoting Toscano v. Borough of Lavallette, Civ. A. No. 04-4412, 2006 WL 1867197, at

*4 (D.N.J. June 30, 2006) (quoting Hurley v. Atl. City Police Dep’t, 174 F.3d 95, 109 (3d

Cir. 1999))).

       However, the District Court did not hold that evidence regarding any pre-

December 6, 2004 retaliation would be inadmissible if an otherwise timely § 1983 claim

were permitted to proceed. Rather, it merely held, consistent with the authority on which

LaPosta relies, that pre-December 6, 2004 retaliation was not actionable in its own right



                                              6
because it was barred by the statute of limitations. Accordingly, we affirm the District

Court’s order insofar as it dismissed LaPosta’s § 1983 claim with regard to pre-December

6, 2004 retaliation.

                                             B.

        The District Court dismissed the § 1983 claim insofar as it was grounded on post-

December 6, 2004 retaliation based on its conclusion that LaPosta had failed to allege an

underlying violation of his First Amendment right to free speech. As the District Court

explained, in order to state a claim for a violation of the First Amendment right to free

speech, a plaintiff must allege that he spoke on a matter of public concern, that is, that he

spoke on a “‘matter of political, social, or other concern to the community.’” JA-30

(quoting Nittoli v. Morris County Bd. of Chosen Freeholders, Civ. A. No. 05-4007, 2007

WL 1521490, at *4 (D.N.J. May 22, 2007)). Reviewing the allegations in the Complaint,

the District Court concluded that LaPosta had identified no speech regarding a matter of

public concern but, rather, only alleged speech aimed at advancing a personal interest.

Specifically, it noted that the only speech identified in the Complaint was LaPosta’s

expression of interest in joining the PBA, and his request that McDonough discontinue

the use of scented candles, neither of which involved claims of systemic problems within

the Police Department but, rather, concerned LaPosta’s own personal interests.

       LaPosta argues that dismissing his § 1983 retaliation claim on this basis was in

error, because his retaliation claim is predicated on freedom of association, not freedom



                                              7
of speech, and freedom of association retaliation claims have no public concern

requirement. Appellant’s Br. at 12 (citing Toscano, 2006 WL 1867197, at *4 n.4). The

fact that LaPosta’s retaliation claim was based, at least in part, on his freedom of

association, is clear from paragraphs 6 and 7 of the Complaint, which state:

              6. When Officer LaPosta completed his training at the Essex
              County Police Academy, Defendant McDonough and other
              officers under the direction of Defendant McDonough, in
              word and in deed, forced Officer LaPosta to join the Fraternal
              Order of Police Union (hereinafter “F.O.P.”). When Officer
              LaPosta expressed interest in joining an alternative union,
              namely, the Policeman’s Benevolent Association (hereinafter
              “the P.B.A.”), Defendant McDonough advised Officer
              LaPosta, in substance and in part, that “neither [LaPosta] nor
              any officers are to have any . . . influence from P.B.A. Local
              81.”

              7. On or about April 4, 2004, Officer LaPosta joined the
              P.B.A., Defendant McDonough retaliated against Officer
              LaPosta. These retaliations had a direct negative impact upon
              Officer LaPosta’s working conditions. Such retaliations
              included, but were not limited to: loss of monetary
              compensation, loss of promotion potentials, lack of due
              process and limited associations both inside and outside of the
              Police Department. These will be discussed in paragraphs, 8
              through 17, inclusive, infra.

JA-2 to JA-3, ¶¶ 6-7. Furthermore, the § 1983 count of the Complaint states that

Appellees violated § 1983 by, among other things, “allowing/causing/creating constant

and blatant violations of Officer LaPosta’s freedom of association rights afforded to him

by the state and federal constitutions.” JA-6, ¶ 19(c). LaPosta reiterated that he was

alleging retaliation in violation of his freedom of association in his response to Appellees’



                                              8
Motions to Dismiss. See Appellant’s Br. in Resp. to Mot. to Dismiss, at 1 (“[The]

Complaint sets forth in exhaustive detail the episodes of retaliation suffered by Officer

LaPosta in connection with . . . his attempt to join an organization not sanctioned by the

Chief.”); id. at 7 (asserting that the retaliation Appellant suffered “was perceived by the

members of the Roseland Police Department as punishment for joining the P.B.A.”).

Accordingly, we find that the District Court erred in failing to address LaPosta’s claim as

one grounded, at least in part, on free association.2

       Appellees appear to argue that any such error does not entitle LaPosta to relief,

because the law in this Circuit is not clear as to whether the public concern requirement

applies equally to free association claims.3 However, it is precisely because this is an



   2
    Even if the District Court could not perceive a free association-based claim in the body
of the Complaint, it should have considered whether to give LaPosta leave to amend after
LaPosta clarified in his brief that his claim was based on a violation of his freedom to
associate. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251
(3d Cir. 2007) (stating that in civil rights cases under section 1983, “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”); Alston v. Parker, 363 F.3d 229,
235 (3d Cir. 2004) (“[I]f a complaint is vulnerable to 12(b)(6) dismissal, a District Court
must permit a curative amendment, unless an amendment would be inequitable or futile.”
(citation omitted)).
  3
   In Sanguigni v. Pittsburgh Bd. of Pub. Educ., 968 F.2d 393 (3d Cir. 1992), we considered
the application of the public concern requirement to a freedom of association claim, but, after
noting a split in the Circuits on the issue, declined to decide whether the requirement applies
generally to such claims. Id. at 400. Instead, we held only that the requirement applied under
the specific facts of that case, which involved an associational claim that was “based on
speech” and did not implicate associational rights “to any significantly greater degree” than
the speech at issue in the seminal Supreme Court free speech case that gave rise to the public
concern requirement. Id. (citing Connick v. Myers, 461 U.S. 138 (1983)).

                                                9
open question in this Circuit that the District Court should have independently analyzed

the retaliation claim as one based on freedom of association. We therefore remand to

permit it to do so in the first instance, with the assistance of full briefing from the parties.

                                              III.

       LaPosta also argues that the District Court erred in dismissing his tort claims based

on his alleged failure to serve Appellees with a notice of claim as required by the New

Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq.4 The District Court explained that the

Tort Claims Act provides that no lawsuit may be brought against a public entity or public

employer unless the plaintiff (1) first serves the public entity or public employer with a

notice setting forth the content of the presented claim, and (2) does not file a lawsuit until

at least six months after the date of the notice. JA-33 (citing N.J.S.A. 59:8-8). In this

case, the District Court stated, LaPosta filed his complaint on December 5, 2006, without

ever having served Appellees with a tort claim notice “regarding any of the alleged

tortuous [sic] conduct” at issue. JA-34. Because McDonough is an employee of the

Borough, a public entity, the District Court therefore concluded that LaPosta could not

“proceed with his state law claims against McDonough.” Id.

       On appeal, LaPosta argues that the District Court ignored the fact that subsequent

to the filing of the two motions to dismiss, but before the Court's ruling, counsel for the




   4
    This argument does not pertain to LaPosta’s hostile work environment claim, which he
is not pursuing on appeal. See Appellant’s Br. at 3 n.1.

                                               10
Borough sent a letter to the Court, notifying the Court that the Borough had, in fact, been

served with a tort claim notice, and attaching a copy of the notice to the letter. LaPosta

complains that the District Court's opinion did not acknowledge the Borough’s receipt of

that notice, and he argues that the Court’s dismissal based on his alleged failure to serve

the Borough with the notice should be reversed for that reason.

       LaPosta’s arguments fail for two reasons. First, while the District Court did not

explicitly acknowledge receipt of the tort claim notice from counsel for the Borough, it

likewise never stated that LaPosta had served no claim notice. Rather, it stated that

LaPosta had “never served . . . a Notice of Tort Claim regarding any of the alleged

tortuous [sic] conduct for which Plaintiff complains.” JA-34 (emphasis added). In fact,

the tort claim notice that the Borough’s counsel furnished to the District Court mentions

only hostile work environment and retaliation claims, without mentioning a claim for

negligence or conspiracy. Accordingly, it appears that the District Court held only that

LaPosta never served the Borough with a notice of the tort claims that he continues to

pursue in this action.

       Moreover, even assuming arguendo that the District Court erred in dismissing

LaPosta’s tort claims against the Borough based on his failure to serve a tort claim notice,

no reversal of the dismissal of those claims would be warranted, as the District Court

gave alternative reasons for dismissing the claims, and LaPosta has not challenged those

alternative bases for dismissal. Specifically, the District Court held that the negligence



                                             11
claim was barred by the Workers’ Compensation Act and that the conspiracy claim failed

because a governmental entity cannot conspire with its employees or agents who are

acting within the scope of their employment. As LaPosta has not challenged these

alternative bases for dismissal, he has not presented us with any basis on which we could

ultimately reverse the District Court’s dismissal of his tort claims.

                                             IV.

       We have considered all other arguments made by the parties on appeal, and

conclude that no further discussion is necessary. For the foregoing reasons, we affirm in

part, reverse in part and remand the case to permit the District Court to address LaPosta’s

non-time-barred retaliation claim insofar as it is based on free association.




                                              12
