Seneca v. New Hope Borough, CIVIL ACTION NO. 01-2307 (E.D. Pa. 2/27/2002)

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ROBERT SENECA, v. NEW HOPE BOROUGH and ROBERT GERENSER, individually and as Councilman of New Hope Borough.

CIVIL ACTION NO. 01-2307.

United States District Court, E.D. Pennsylvania.

February 27, 2002.

MEMORANDUM

WALDMAN, Judge.

Introduction

This case arises from the anonymous dissemination of a police accident report of a motor vehicle accident in which plaintiff was involved. Plaintiff alleges that defendant Gerenser, a New Hope Borough councilman, is the person who disseminated the report. He allegedly did so in retaliation for statements plaintiff made at a Borough council meeting and to deter him from speaking out further in support of a police chief who Mr. Gerenser opposed. Plaintiff alleges that Mr. Gerenser's fellow council members failed to prevent his dissemination of the report after plaintiff complained to them in a letter from his attorney.

Plaintiff has asserted a defamation claim and claims pursuant to 42 U.S.C. § 1983 for an array of constitutional violations by Mr. Gerenser for which plaintiff also seeks to hold the Borough liable. Plaintiff has also filed as discrete claims a prayer for attorney fees pursuant to 42 U.S.C. § 1988 and 42 Pa. C.S.A. § 2503.¹

Presently before the court is defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Defendant Gerenser also asserts in the alternative that he is entitled to qualified immunity on the § 1983 claims and both defendants assert entitlement to official immunity on the defamation claim.

Legal Standard

Dismissal for failure to state a claim is appropriate when it clearly appears that plaintiff can prove no set of facts in support of the claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). Such a motion tests the legal sufficiency of a claim while accepting the veracity of the claimant's allegations. See Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987); Winterberg v. CNA Ins. Co., 868 F. Supp. 713, 718 (E.D.Pa. 1994), aff'd, 72 F.3d 318 (3d Cir. 1995). A court may also consider any document appended to and referenced in the complaint on which plaintiff's claim is predicated. See Fed.R.Civ.P. 10(c); In re Burlington Coat Factory Securities Litigation, 114 F.3d 1426 (3d Cir. 1997); In re Westinghouse Securities Litigation, 90 F.3d 696, 707 (3d Cir. 1996).² A court, however, need not credit conclusory allegations or legal conclusions in deciding a motion to dismiss. See General Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 333 (3d Cir. 2001); Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); L.S.T., Inc. v. Crow, 49 F.3d 679, 683-84 (11th Cir. 1995). A claim may be dismissed when the facts alleged and the reasonable inferences therefrom are legally insufficient to support the relief sought. See Pennsylvania ex rel. Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 179 (3d Cir. 1988).

Factual Background

The pertinent facts as alleged by plaintiff are as follow.

Plaintiff is a shopkeeper and resident of New Hope, Pennsylvania. Defendant Gerenser is an elected councilman of the Borough of New Hope.

At various Borough council meetings the issue of the then police chief's continued service was discussed. Borough citizens as well as council members were "split" on the question of retaining the police chief. Plaintiff attended numerous council meetings where he expressed support for the police chief. Plaintiff and Mr. Gerenser "were on opposing sides of the issue of the police chief." As a result of this difference of opinion, Mr. Gerenser set out to punish plaintiff and deter him from speaking in support of the police chief at future meetings.

Mr. "Gerenser utilized his position and authority as a governmental official" to obtain from the state Bureau of Motor Vehicles a copy of a state police report of an accident in which plaintiff was involved while driving on Route 95 in Lower Makefield and then anonymously mailed copies to plaintiff's neighbors, business associates, friends and members of the New Hope Borough council.³

The report contains plaintiff's version of the accident which is that while exiting the highway, he lost control of his vehicle after braking on a slippery area, the vehicle then spun and overturned on its roof against an embankment. The report also relates that plaintiff was taken from the scene of the accident to a state police facility in Trevose so that a blood alcohol content percentage could be obtained. There is a notation that a test was administered but the section in which the percentage result is to be recorded is blank. In a section captioned "Violations Indicated," the investigating officer noted "DUI, driving vehicle at a safe [sic] speed, careless driving." The letters DUI are handwritten in the upper margin of the report.⁴ There is no statement in the report that any citation was actually issued or that any charge was ever lodged.

Plaintiff's attorney sent a letter to "New Hope Borough" informing the "Ladies/Gentlemen" to whom it was directed that "one of its Councilmembers" had improperly obtained and disseminated a copy of a police report of an accident in which plaintiff was involved in "violation of his constitutionally protected rights." Plaintiff's attorney further wrote that "I suggest the [Borough] Council immediately make provisions to have this matter resolved forthwith" and asked that the Borough "make appropriate reparations." At least one anonymous mailing of the accident report was made after plaintiff's attorney's letter to the Borough.

Discussion

A. Municipality Liability

A municipality is liable for a constitutional tort only" when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury" complained of. Monell v. Dept. of Social Services, 436 U.S. 658, 694 (1978).

"Policy" is made when a decision-maker with final authority to establish municipal policy with respect to the action in question issues an official proclamation, policy or edict. A "custom" is a course of conduct which, although not formally authorized by law, reflects practices of state officials that are so permanent and well settled as to virtually constitute law. A decision by an official with final discretionary decision-making authority, or ratification by such an official of the acts of a subordinate, can constitute a "policy." See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Pembauer v. City of Cincinnati, 475 U.S. 469, 480 (1986); Keenan v. City of Philadelphia, 983 F.2d 459, 468 (3d Cir. 1992); Omnipoint Communications, Inc. v. Penn Forest Twp., 1999 WL 181954, *10 n. 4 (M.D.Pa. Mar. 31, 1999); Callahan v. Lancaster-Lebanon Intermediate Unit 13, 880 F.2d 319, 341 (E.D.Pa. 1994).

A municipality may also be liable under § 1983 for a failure properly to train, supervise or discipline employees when such failure amounts to deliberate indifference to the constitutional rights of persons with whom its employees come into contact. See City of Canton v. Harris, 489 U.S. 378, 388 (1989); Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999).

Plaintiff asserts only that after his attorney sent the letter addressed to "New Hope Borough," the Borough failed to stop a subsequent mailing of the accident report and thereby "participated in the behavior; adopted the behavior and made it part of the Borough's policy." There is no suggestion that any council member or Borough official other than Mr. Gerenser obtained or disseminated the accident report for any reason. Plaintiff acknowledges in his complaint that the council was split regarding support for the police chief and that council members were themselves targeted for the anonymous mailing.

A decision of a duly constituted legislative body is an act of official policy. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-52 (1981). The actions of a single council member, however, do not establish official policy or bind the municipality. See Church v. City of Huntsville, 30 F.3d 1332, 1343 (11th Cir. 1994). Approval of the conduct of a councilman cannot be inferred from the mere silence of other council members. See id. at 1344 n. 5.

Municipal liability cannot be predicated on the failure of the Borough to prevent the dissemination of the accident report upon receipt of plaintiff's lawyer's letter. The only action requested of the Borough in plaintiff's lawyer's letter was a prompt resolution of the matter by the payment of reparations. The council member allegedly responsible for the dissemination of the accident report is not named or otherwise identified in the letter. The activity alleged in the letter is in the past tense. There is no suggestion of ongoing activity. The inaction of the Borough in response to such a letter does not demonstrate a policy of deliberate indifference.

Most importantly, a council member is not a subordinate employee of the council or Borough. Plaintiff alleges no facts and cites no law to show that any executive or legislative official of the Borough has the authority to supervise, discipline or constrain the conduct of an elected Borough council member.

If there are additional facts which plaintiff can allege in good faith to sustain a municipal liability claim, he has neither pled them nor suggested any in response to the motion. The claims against the Borough will be dismissed.

B. Plaintiff's § 1983 Claims Against Defendant Gerenser

A plaintiff may recover damages under § 1983 for injuries caused by the deprivation of his constitutional rights by persons acting under color of state law. See Farrar v. Hobby, 506 U.S. 103, 112 (1992); Squires v. Bonser, 54 F.3d 168, 172 (3d Cir. 1995).

In Count I of plaintiff's complaint, he asserts that defendants' dissemination of the...