Johnston v. N. Braddock Borough

RYAN JOHNSTON, Plaintiff, v. NORTH BRADDOCK BOROUGH, et al., Defendants.

Civil Action No. 19-1548

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

September 4, 2020

REPORT AND RECOMMENDATION

I. Recommendation

It is respectfully recommended that Defendants' motion to dismiss (ECF No. 9) be granted in part and denied in part. The motion should be granted with respect to Plaintiff's claims under the Fourth Amendment, his wrongful discharge claim, and that portion of the Wiretap Act claim that relates to recording Plaintiff's conduct in connection with a locked evidence cabinet. It is further recommended that all of Plaintiff's claims against the individual defendants, other than Defendant Daniele, should be dismissed. With respect to Defendant Daniele, the motion to dismiss should be granted regarding all claims against him other than the Wiretap Act claim arising out of the recording of Plaintiff's conversation and the Whistleblower Law claim. Defendants' motion to dismiss should be denied in all other respects.

II. Report

Plaintiff Ryan Johnston brings this civil rights action pursuant to 42 U.S.C. § 1983. His claims arise out of the termination of his employment as a police officer for the Borough of North Braddock ("the Borough") and includes causes of action under the Fourth and Fourteenth Amendments, as well as the Pennsylvania Whistleblower Law, 43 P.S. §§ 1421-28, the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. §§ 5701-28 ("Wiretap Act"), the Pennsylvania Wage Payment and Collection Law, 43 P.S. §§ 260.1 to 260.10 ("WPCL") and Pennsylvania common law. Named as Defendants are the Borough, the North Braddock Borough Police Department, Chief Isaac Daniele, Mayor Tom Whyel and the members of the Borough Council (John Vahosky, Michael Dobrinich, Bridgette Cobbs, Vicki Vargo, Teresa Parker, Jerome Sepesy, Christopher Roland, Michael Breaston and Tina Dixon¹) who voted to terminate his employment.

Currently pending before the Court is Defendants' motion to dismiss. (ECF No. 9). For the reasons that follow, the motion should be granted in part and denied in part.

A. Relevant Procedural History

Johnston filed this action in December 2019. Federal question jurisdiction is based on the civil rights claims, 28 U.S.C. § 1331, and supplemental jurisdiction is asserted over the state law claims, 28 U.S.C. § 1367(a).

The Complaint includes four causes of action against all of the defendants. In Count I, Johnston alleges that Defendants violated his procedural due process rights by terminating his employment without just cause and without providing him notice and an opportunity to be heard, and he also alleges a stigma-plus claim. He alleges in Count II that he was surreptitiously recorded in violation of his rights both under the Fourth Amendment and the Wiretap Act. The Complaint alleges claims in Count III both for wrongful termination and violation the Pennsylvania Whistleblower Law. Finally, in Count IV, he alleges that he was not paid for hourshe worked and seeks recovery of these wages pursuant to the WPCL.

On February 28, 2020, Defendants filed a motion to dismiss (ECF No. 9) which has been fully briefed (ECF Nos. 10, 23, 24, 26).

B. Background Facts

In October 2018, Johnston was hired as a part-time (32 hours a work) patrolman for the Borough. The decision to hire him was made by the Borough Council, but he was never informed by the Borough or the Police Department that he was hired under a contingent probationary period, nor was he ever given a copy of the Department's Standard Operating Guidelines ("SOG") or the Fraternal Order of Police Lodge #91 Union Collective Bargaining Agreement ("CBA"). However, he later found parts of the SOG and the CBA in the station and copied them for his personal files. (Compl. ¶¶ 10, 13, 15, 17 & Exs. 1, 2.)² At the time of his hiring, the police chief was Dean Bazzone, but Chief Bazzone was on medical leave and Isaac Daniele was the Acting Chief pursuant to Borough Council's orders. (Id. ¶¶ 11-12.)

Johnston alleges that he was never reprimanded, suspended, nor had a negative written report as a police officer prior to his unlawful termination. After three months of being employed by the Department, he was given a raise. In addition, his union dues to the FOP were automatically subtracted and from his paycheck, and as such he was covered under the CBA with the Borough and Department. (Id. ¶¶ 18-20.)

After the first month or two of his employment as a police officer by the Department, Johnston was advised by other officers that evidence easily "goes missing" and/or is stolen, and to CYA ("cover your ass"). Thereafter, he was especially conscientious in the documenting andaccounting for the chain of custody of evidence, particularly regarding any money and/or drugs seized from an arrest. (Compl. ¶¶ 37-38.)

In January 2019, a co-worker showed Johnston a video of Acting Chief Daniele stealing evidence, and his co-worker informed him that there was an official investigation regarding this incident by an outside law enforcement agency. Almost every other officer in the Department had concerns that evidence was being tampered with by Daniele. (Compl. ¶¶ 39-40.)

On April 4, 2019, Johnston was interviewed by two Federal Bureau of Investigation ("FBI") agents, who questioned him about the Department's evidence procedures, and informed him that he would be used as an investigation witness going forward. He was alerted that his suspicions regarding Department evidence irregularities were correct. (Compl. ¶¶ 41-42.)

On May 1, 2019, Johnston, along with Officer Joe Lynn ("Lynn"), made an arrest in which over three pounds of marijuana were seized. Due to the number and size of the packages of marijuana, all of it could not fit into a standard department evidence bag to be sealed. Aa a result, all of the seized marijuana packages were dropped into the evidence closet via the drop box door, which was not standard procedure but was the best they could do under the circumstances. This left the evidence "unsecured" and capable of being easily tampered with, which prompted Johnston to notify Daniele of his concern. At an unknown time after this was done, Daniele moved the marijuana evidence into the evidence storage room located near the rear entrance to the police station. (Compl. ¶¶ 43-48.)

The assistant district attorney ("ADA") assigned to the marijuana case, Sarah Weikart ("Weikart"), repeatedly requested the lab results, and Johnston passed along these requests to Daniele. Eventually, Daniele told him that Officer Sha'Ron Jackson ("Jackson") had submitted the marijuana to the lab. Subsequently, however, Weikart informed Johnston that the marijuanawas never submitted to the crime lab and that another law enforcement agency was investigating Daniele and that she would forward this information to that agency. (Compl. ¶¶ 49-52, 56-57.)

Johnston states that as required by law, he had immediately reported to the District Attorney's Office the information regarding Daniele's failure to submit evidence and intentional hindering of an active prosecution. He also contacted one of the FBI agents who had previously interviewed him and reported the same information. From that date on (April 30, 2019), Johnston continued reporting to ADA Weikart, Deputy District Attorney Christopher Avetta and the FBI regarding any irregularities with evidence under Daniele's control. (Compl. ¶¶ 58-60.)³

Before these events, Johnston had arrested Officer Jackson's cousin, seizing $8,700.00 cash and six ounces of marijuana during the process. He placed the cash in the station's wall safe and the marijuana in the evidence closet. He subsequently witnessed Daniele removing this cash from the wall safe. Daniele told him that he placed the money in his office. (Compl. ¶¶ 61-62.) Another officer watched a playback of this incident, which was recorded on the station's CCTV system. (Id. ¶¶ 63-64.) At some time in March 2019, Daniele removed/disabled the playback and camera control function on the station's CCTV system, allegedly so that officers could not watch and monitor Daniele's actions as they had in the past. (Id. ¶¶ 65-66.)

In preparing for the prosecution of Officer Jackson's cousin, ADA Cassandra Barch ("Barch") asked for the $8,700.00 evidence, but Daniele said he could not access the money because it was locked in a safe in the Department Chief's office and only Bazzone had access to the safe. ADA Barch subpoenaed Daniele to bring the $8,700.00 to court on May 10, 2019. Daniele failed to appear in court on that date, allegedly due to a death in the family. On the sameday as the scheduled court hearing and family funeral, Daniele came to the station and instructed Johnston to take the marijuana evidence to court, but neither Daniele nor Johnston could access the $8,700.00 because it allegedly was locked in a safe in the Department Chief's office. (Id. ¶¶ 65-69.)

While Johnston and Daniele were in the Department Chief's office, Daniele confirmed that a black standing safe in the office contained the $8,700.00. Daniele retrieved the marijuana evidence in the Department Chief's office and instructed Johnston to take it to court, which he promptly did. However, the ADA was required to postpone the case because of the missing $8,700.00. (Compl. ¶¶ 70-73.)⁴

On May 21, 2019, Johnston, who was determined to evaluate Daniele's complicity in the missing evidence, mentioned to Daniele that the FBI came to Johnston's house and questioned him. Daniele immediately inquired into specific information about this FBI agent, as well as the nature of the questions asked and Johnston's responses. Daniele's reaction convinced Johnston that Daniele had violated the laws of the Commonwealth regarding the evidence held in the station in the instant case, and Johnston concluded that he obligated to take appropriate action. He again communicated this activity to the District Attorney's Office....