Marin v. McClincy

15 F.Supp.3d 602

Mel M. MARIN, Plaintiff

v.William McCLINCY and Melissa A. Thompson, Defendant.

No. 1:11–cv–00132.

United States District Court, W.D. Pennsylvania.

Signed April 10, 2014.

Filed April 11, 2014.

Mel M. Marin, Catonsville, MD, pro se.

Thomas P. McGinnis, Jeffrey D. Truitt, Karin M. Romano, Thomas, Thomas & Hafer, LLP, Pittsburgh, PA, for Defendant.

OPINION

DAVID STEWART CERCONE, District Judge.

I. Introduction

Mel M. Marin (“plaintiff”) filed a complaint in this Court on July 20, 2011, naming Melissa Thompson (“Ms. Thompson”) and William McClincy (“Mr. McClincy”) (“defendants”) and alleging violations of his rights under the First and Fourteenth Amendments along with several state law claims.¹ (Doc. No. 4). Presently before this Court are the parties' motions for summary judgment. (Doc. Nos. 34, 38). For the reasons that follow, defendants' motion [34] will be granted and plaintiff's motion [38] will be denied.

II. Background

Pennsylvania requires all state agencies to obtain the “Social Security number of an individual who has one on any application for a professional or occupational license or certification.” 23 Pa.C.S. § 4304.1(a)(1)-(2). On December 1, 2010 plaintiff submitted his application for Emergency Medical Service (“EMS”) certification through reciprocity to the Emergency Medical Management Cooperative West (“EMMCO”) in Pennsylvania. (Doc. No. 33 at ¶ 3); (Doc. No. 40 at ¶ 1). Plaintiff did not provide his social security number in the designated space on the Pennsylvania application. (Doc. No. 36, Exhibit C–1). His application was reviewed by EMMCO employee Ms. Thompson who advised plaintiff in a letter dated December 20, 2010 that the application was incomplete because he had not included his Social Security number. (Doc. No. 33 at ¶ 4); (Doc. No. 36, Exhibit C at ¶ 9). Ms. Thompson sent the incomplete application back to plaintiff and asked that he resubmit a completed form. (Id. ). Plaintiff returned the letter and the incomplete application to Ms. Thompson. (Doc. No. 36 at ¶ 12). Plaintiff alleges that the Third Circuit and the District of Columbia Circuit sealed his military record, which included his social security number, in prior cases due to his classified military service with the United States Special Forces. (Doc. No. 33 at ¶ 6). He allegedly contacted the Bureau of Emergency Medical Services (“the Bureau of EMS”) in Harrisburg, Pa and received permission to submit the record from one of these cases, which contained his social security number, in lieu of a completed application. (Id. ).

Plaintiff resubmitted the incomplete application along with a copy of an application he has previously submitted in California which included his social security number.² (Doc. No. 40 at ¶ 1); (Doc. No. 36, Exhibit C–3). He instructed Ms. Thompson to process the Pennsylvania application by using the information from the California application. (Doc. No. 36 at ¶ 14–15). Plaintiff requested that Mr. McClincy, Executive Director of EMMCO, reassign the processing of Plaintiffs application to another employee. (Doc. No. 33 at ¶ 8); (Doc. No. 36 at ¶ 21). Plaintiff alleges that Mr. McClincy explained that EMMCO could verify the California application and that he would have it done immediately. (Doc. No. 33 at ¶ 9). Defendants were able to verify plaintiff's California license but Ms. Thompson avers she was unable to complete the Pennsylvania application because the Pennsylvania Department of Health (“the Department”) requires that applicants complete their own applications. (Doc. No. 36, Exhibit A at ¶ 8–9). Her sworn affidavit provides the following:

7. The Pennsylvania Department of Health directs EMMCO West to return incomplete applications to the applicant with instructions as to what information is missing.

8. Pursuant to the direction of the Pennsylvania Department of Health, because Plaintiff did not provide his social security number, I was required to return Plaintiff's application to him ...

12. Pursuant to the direction of the Pennsylvania Department of Health, I am not permitted to complete Plaintiff's application for him.

(Doc. No. 36 at Exhibit C). Mr. McClincy's sworn affidavit similarly provides:

7. The Pennsylvania Department of Health directs EMMCO West to return incomplete applications to the applicant with instructions as to what information is missing.

8. Pursuant to the direction of the Pennsylvania Department of Health, because Plaintiff did not provide his social security number, Ms. Thompson returned Plaintiff's application to him and asked him to resubmit the paperwork once it was completed ...

19. Plaintiff's complaints or other communications regarding Ms. Thompson's inability to process his application and/or complete his application for him were not considered in making the decision to continue to comply with the Pennsylvania Department of Health's direction to return Plaintiff's incomplete application to him with instructions as to what information is missing.

(Doc. No. 36 at Exhibit B).

In a letter dated April 27, 2011 Ms. Thompson informed plaintiff that she and Mr. McClincy had been instructed that they were not permitted to complete the application for him. (Doc. No. 36, Exhibit G). Ms. Thompson asked plaintiff to complete the application and return it at which time she would “be happy to process it.” (Id. ). Plaintiff did not resubmit a completed application. (Doc. No. 36 at ¶ 25).

III. Standard of Review

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir.1992). Once that burden has been met, the non-moving party must set forth specific facts showing that there is a genuine issue for trial, or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(a), (e) ) (emphasis in Matsushita ). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In meeting its burden of proof, the opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. The non-moving party “must present affirmative evidence in order to defeat a properly supported motion” and cannot “simply reassert factually unsupported allegations.” Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989). Nor can the opponent “merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs.” Harter v. GAF Corp., 967 F.2d 846 (3d Cir.1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382–383 n. 12 (3d Cir.1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249–250, 106 S.Ct. 2505 ; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to turn a blind eye to the weight of the evidence).

IV. Discussion

a. First Amendment Retaliation

Plaintiff alleges that defendants refused to process his application in retaliation for his complaints to the Bureau of EMS in Harrisburg, Pennsylvania and the filing of the instant suit. (Doc. No. 39 at 6–7). He argues that defendants intended to prevent him from working as an EMT in Pennsylvania and their alleged actions were sufficient to deter a person of ordinary firmness from engaging in protected speech. (Id. ). For the reasons that follow, plaintiff's First Amendment retaliation claim is without merit.

Section 1983 does not create substantive rights; rather, it provides “remedies for deprivations of rights established elsewhere.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). A prima facie case under § 1983 requires a showing that the plaintiff was: (1) deprived of a federal right (2) by a person acting under color of state law. Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech ... or the right of the people ... to petition the Government for a redress of grievances.” U.S. Const. amend I. The due process clause of the Fourteenth Amendment precludes the states from abridging the freedom of speech provided by the First Amendment. Grosjean v. American Press Co., 297 U.S. 233, 243–244, 56 S.Ct. 444, 80 L.Ed. 660 (1936).

In order to state a prima facie case for the violation of First Amendment rights under § 1983, the plaintiff must demonstrate that: (1) he engaged in...