                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                     No. 09-2012
                                    _____________

                                 JONATHAN KNIGHT,

                                                    Appellant,

                                           v.

   DAVID DRYE, In His Individual and His Official Capacity As Chalfont Borough
Manager; MARILYN BECKER, In Her Individual and In Her Official Capacity as Mayor
 Of Chalfont Borough; GARY LUCAS, In His Official Capacity As President Chalfont
Borough Council; CHALFONT BOROUGH COUNCIL, In Their Official Capacities As
 Members of Chalfont Borough Council; CHALFONT BOROUGH; CHIEF POLICE
 FRANK CAMPBELL, In His Official Capacity As Chief Of Chalfont Borough Police
  Department; POLICE BENEVOLENT ASSOCIATION, Chalfont Borough Lodge;
CHALFONT BOROUGH POLICE DEPARTMENT, Chalfont Borough; FRATERNAL
                         ORDER OF POL LODGE #53


                                    ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 07-cv-03097)
                     District Judge: Honorable Eduardo C. Robreno
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 26, 2010

       Before: FUENTES, FISHER, Circuit Judges; and KANE, * Chief District Judge.


   *
   Honorable Yvette Kane, Chief Judge of the United States District Court for the
Middle District of Pennsylvania, sitting by designation.
                                   (Filed: April 14, 2010)
                                     _______________

                                OPINION OF THE COURT
                                    _______________

KANE, Chief District Judge.

       Jonathan Knight appeals from an order of the District Court granting summary

judgment to the Appellees. See Knight v. Drye, No. 07-3097 (E.D. Pa. Mar. 13, 2009).

Knight’s amended complaint asserted thirteen causes of action based on his termination

from his position as a police officer because he allegedly disclosed confidential

information concerning an undercover narcotics investigation. On appeal, Knight

challenges only the dismissal of his claim based on 42 U.S.C. § 1983 for First

Amendment retaliation. We will affirm.

                                              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.

       On February 12, 1999, Knight began his employment as a police officer for

Chalfont Borough. After joining the police force, Knight developed a casual friendship

with Whitney Watson, IV, the manager of a local car wash. In 2005, Watson was under

investigation by the Bensalem Township Police Department for his participation in drug

dealing. In January 2005, Watson contacted Knight. Knight alleges that Watson


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“complained about harassment by fellow Officer Clifford Horn.” (Appellant’s Br. at 6.)

Knight maintains that after being contacted by Watson, he promptly took the complaint to

Officer Robert Milligan and to Police Chief Frank Campbell. (Id.) At that time, Milligan

and Campbell informed Knight that Watson was under investigation.

       On September 23, 2005, after being tipped by an undercover informant that Knight

had given information about the investigation to Watson, the Chalfont Borough Council

placed Knight on a temporary paid leave of absence. On September 27, 2005, Knight was

arrested and charged with obstructing the administration of law or governmental function

and hindering prosecution. That same day, he was suspended by the Chalfont Borough

Council without pay. On October 11, 2005, Knight was terminated from his position as a

police officer.

       In June 2005, in the period between Knight’s contact with Watson and his

termination, Knight was involved as a witness of an incident at a local pub. According to

Knight, while he was off duty, he witnessed David Drye, Chalfont Borough manager,

steal beer from behind the bar and distribute it to other customers. An argument arose

between Drye and the pub owner. Knight attempted to break up the fight that ensued.

However, he was not involved in the later official investigation of the altercation.

                                             II.

       The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1331.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We review a District Court's



                                             3
order granting summary judgment de novo, applying the same standard as the District

Court. Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir. 2007). Summary

judgment is appropriate only where there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Saldana v. Kmart Corp., 260

F.3d 228, 232 (3d Cir. 2001).

                                             III.

       The District Court entered summary judgment for Appellees. On appeal, Knight

claims that there were genuine issues of material fact regarding his First Amendment

retaliation claim that should have precluded summary judgment. Knight contends that he

was fired for engaging in two specific instances of protected conduct. First, Knight cites

his report to Police Chief Campbell and Officer Milligan alleging misconduct by Officer

Horn. Second, Knight cites the potentially criminal conduct by Drye that Knight

witnessed when he was off-duty.1

       “To state a First Amendment retaliation claim, a public employee plaintiff must

allege that his activity is protected by the First Amendment, and that the protected activity

was a substantial factor in the alleged retaliatory action.” Gorum v. Sessoms, 561 F.3d

179, 184 (3d Cir. 2009) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.



   1
    In his appeal, Knight also raises a claim that he was terminated for testifying before a
grand jury, which was empaneled to investigate his own criminal conduct. This claim
was not raised before the District Court and, as a result, is waived on appeal. See Bagot
v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005); Brenner v. Local 514, United Bhd. of
Carpenters & Joiners of Am., 927 F.2d 1283, 1298 (3d Cir. 1991).

                                              4
2006)). “‘The first factor is a question of law; the second factor is a question of fact.’”

Id. (quoting Hill, 455 F.3d at 241).

       A public employee’s statement is protected activity when (1) in making it, the
       employee spoke as a citizen, (2) the statement involved a matter of public
       concern, and (3) the government employer did not have ‘an adequate
       justification for treating the employee differently from any other member of
       the general public’ as a result of the statement he made.

Hill, 455 F.3d at 241-42 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).

       We find that the District Court was correct in dismissing both of Knight’s First

Amendment claims as insufficient to withstand summary judgment. First, Knight’s

complaint up the chain of command to Officer Milligan and Police Chief Campbell is not

speech protected by the First Amendment. “[W]hen public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications from

employer discipline.” Garcetti, 547 U.S. at 421. Although Knight argues that his report

should be protected by the Third Circuit’s recent pronouncement in Reilly v. City of

Atlantic City, 532 F.3d 216 (3d Cir. 2008), his reliance on that case is misplaced. In

Reilly, we found that the truthful testimony by a police officer in court constituted

“citizen speech” and was therefore precluded from the “official duties” doctrine set forth

in Garcetti. Reilly, 532 F.3d at 231. However, Knight’s out-of-court statements to his

superiors do not fall into this category. Therefore, the District Court was correct in




                                              5
finding that Knight failed to establish a First Amendment violation based on his reporting

of any misconduct by Officer Horn.

       Second, Knight argues that his observation of the conduct of Manager David Drye

was a motivation for his firing, and that his retaliation claim should therefore have been

allowed to proceed. Again, the District Court properly found that Knight failed to point

to record evidence that he ever reported Drye’s conduct. Absent such a report, the

District Court was correct in finding that Knight could not support a First Amendment

retaliation claim.

       We agree with the District Court’s conclusion that no genuine issue of fact

remained. Appellees were therefore entitled to summary judgment on the First

Amendment retaliation claim.

       Additionally, Knight argues that the District Court erred by citing grounds for his

firing that were not relied upon by Appellees and by failing to draw factual inferences in

his favor. Essentially, Knight argues that “a jury would be left with questions about the

real reasons Appellee offered for firing” him. (Appellant’s Br. at 28.) However, Knight

misses the point. Whatever the motivations were for his firing, he has failed to establish

that they were the result of the exercise of his First Amendment rights. Therefore, his

First Amendment retaliation claim was properly dismissed.

                                            IV.

       For the foregoing reasons, we will affirm the order of the District Court.



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