Filed: Jun. 17, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-17-2008 Kline v. Valentic Precedential or Non-Precedential: Non-Precedential Docket No. 07-2579 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Kline v. Valentic" (2008). 2008 Decisions. Paper 1010. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1010 This decision is brought to you for free and open access by the Opinions of the Uni
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-17-2008 Kline v. Valentic Precedential or Non-Precedential: Non-Precedential Docket No. 07-2579 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Kline v. Valentic" (2008). 2008 Decisions. Paper 1010. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1010 This decision is brought to you for free and open access by the Opinions of the Unit..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-17-2008
Kline v. Valentic
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2579
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Kline v. Valentic" (2008). 2008 Decisions. Paper 1010.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1010
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 07-2579
CORPORAL DANIEL KLINE; LISA KLINE
Appellants
v.
ALAN VALENTIC; KARRY VALENTIC;
SGT. GARY SCHULER; SUSAN BELL;
LT. MCFADDEN; JOHN FERRARO;
THOMAS DUBOVI
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2:06-cv-00642
District Judge: The Honorable Joy Flowers Conti
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 21, 2008
Before: SMITH and NYGAARD, Circuit Judges,
and STAFFORD, District Judge*
(Filed: June 17, 2008)
OPINION
STAFFORD, District Judge.
Daniel Kline ("Kline") and Lisa Kline appeal from the District Court's dismissal of
*
The Honorable William H. Stafford, Jr., Senior United States District Judge for
the Northern District of Florida, sitting by designation.
their First Amendment retaliation, civil conspiracy, and reverse discrimination claims.1
We will affirm.
At all times relevant to this action, Kline was a corporal employed by the
Pennsylvania State Police ("PSP"). On February 18, 2004, while driving his personal
vehicle with his two children as passengers, Kline was involved in a road rage incident
with Alan Valentic. The incident led Kline to file summary criminal charges of reckless
driving and disorderly conduct against Valentic. Valentic in turn filed a written
complaint against Kline with the PSP.
The summary charges against Valentic proceeded to a hearing at which a district
justice found Valentic guilty of reckless driving and disorderly conduct. The complaint
against Kline led to a PSP investigation resulting in a report that Kline acted
inappropriately in connection with the Valentic incident. Kline challenged the report,
saying it contained false statements and material omissions leading to an unjustified
conclusion. Kline was ultimately advised that the complaint against him could not be
sustained.
1
We note that the District Court failed to enter a final judgment on a separate
document as required by Fed. R. Civ. P. 58. Nonetheless, because the District Court's
Memorandum Order docketed April 30, 2007, clearly indicated an intent to end the
litigation, and because the defendants have not objected to the appeal but rather have
treated the District Court's Memorandum Order as a final appealable order, we may
exercise jurisdiction over the appeal. See, e.g., De Jesus-Mangual v. Rodriguez, 383 F.3d
1, 5 (1st Cir. 2004) (noting that where the timeliness of an appeal is not in question, the
purposes of Rule 58 are not served by hinging appellate jurisdiction on the existence of a
separate judgment).
2
At or near the time the PSP was conducting its investigation into the Valentic
incident, Kline applied for a promotion. The promotion was later denied. Kline contends
that he was denied the promotion in retaliation for his having protested the "maliciously
skewered" investigation. Kline also contends that he was denied the opportunity to attend
specialized training for essentially the same retaliatory reasons.
In an unrelated incident, Kline stopped an African-American male driving a rental
car from New York. The man, who admitted to smoking marijuana in the car, was
charged with driving with a suspended license. Kline was thereafter accused by another
police officer of racial profiling. The profiling accusation led to a lowering of Kline's
employee evaluation.
Kline filed a multi-count complaint in federal court, including claims of First
Amendment retaliation, civil conspiracy, and reverse discrimination.2 The District Court
dismissed Kline's First Amendment retaliation and civil conspiracy claims but ordered
Kline to re-plead his reverse discrimination claim. When Kline declined to re-plead, his
reverse discrimination claim was dismissed because of "the difficulty in determining
whether any viable theory was set forth in that count." This appeal followed.3
2
Kline's wife, Lisa, was also named as a plaintiff in the case. The district court
dismissed Lisa's claims, finding that she had no standing to assert claims based on the
purported violations of her husband's civil rights. We likewise find that she has no
standing to pursue the claims raised in this case. We thus find her appeal to be without
merit.
3
The District Court exercised jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1343. Appellate jurisdiction exists under 28 U.S.C. § 1291.
3
This court's review of a district court's grant of a motion to dismiss is plenary.
Sands v. McCormick, 502 F.3d 263, 267 (3d Cir. 2007). We must accept as true all
allegations of the complaint and construe all reasonable inferences that can be drawn
therefrom in the light most favorable to the plaintiff. Phillips v. County of Allegheny,
515
F.3d 224, 233 (3d Cir. 2008). In Phillips, we summed up the pleading standard
articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly,
127 S. Ct. 1955
(2007), as follows:
[S]tating . . . a claim requires a complaint with enough factual matter (taken
as true) to suggest the required element. This does not impose a probability
requirement at the pleading stage, but instead simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.
Phillips, 515 F.3d at 234 (internal quotation marks and citation omitted).
In Count I of his complaint, Kline alleged that the defendants violated his First
Amendment rights by retaliating against him for bringing charges against Valentic and for
challenging the results of the PSP's internal investigation. Kline contends that the District
Court erred when it dismissed Count I for failure to state a claim. We find no error.
A public employee's speech is protected under the First Amendment 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. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If an
employee does not speak as a citizen on a matter of public concern, the employee has no
4
First Amendment cause of action based on his or her employer's reaction to the speech.
Public employees do not speak "as citizens" when they make statements "pursuant to their
official duties." Id. at 421. "An employee's speech addresses a matter of public concern
if it can be 'fairly considered as relating to any matter of political, social, or other concern
to the community.'" Holder v. City of Allentown,
987 F.2d 188, 195 (3d Cir. 1993)
(quoting Connick v. Myers,
461 U.S. 138, 146 (1983)).
Kline contends that, to the extent he complained about the improper and dishonest
conduct of the officers who conducted the internal affairs investigation, he was speaking
about a matter of public concern and was not speaking within the scope of his official
duties.5 To be sure, as a general matter, police misconduct constitutes a matter of public
concern. See Vose v. Kliment, 506 F.3d 565, 569 (7th Cir. 2007) (accepting "that police
misconduct is a matter of public concern"); Markos v. City of Atlanta, Texas,
364 F.3d
567, 570 (5th Cir. 2004) (noting that "[t]his court has often stated that allegations of
police misconduct and corruption are important matters of public concern"). To be
protected under the First Amendment, however, an employee's speech about police
misconduct must be made "as a citizen." See
Garcetti, 547 U.S. at 418 (explaining that
the "first [inquiry] requires determining whether the employee spoke as a citizen on a
matter of public concern") (emphasis added).
5
We find no error in the District Court's dismissal of Kline's claim that the
defendants violated his First Amendment rights by retaliating against him for filing
charges against Valentic. Kline clearly brought charges against Valentic pursuant to his
official duties, and those charges cannot support a First Amendment retaliation claim.
5
Here, the allegations reveal that Kline had a highly personal interest in the police
misconduct alleged in this case. He complained up the chain of command and not in any
public forum about allegedly false statements made during an investigation into his own
conduct as a police officer. It was his professional reputation that was at stake, and his
actions in no way indicated that he wanted the public to know that PSP officers
supposedly made false statements about him and his conduct during the course of an
internal investigation. Because the allegations indicate that Kline was speaking not "as a
citizen" but as a police officer whose own official conduct had been called into question,
we conclude that Kline's complaints did not constitute speech protected under the First
Amendment. The District Court did not err in dismissing Kline's First Amendment claim.
In Count II of his complaint, Kline alleged that three of the defendants—all PSP
officers—participated in a civil conspiracy to deprive him of his rights to procedural due
process. In particular, he alleged that the three officers conspired "to deny [him] a fair
hearing by intentionally creating false evidence as part of a plan to injure [him]," the
conspiracy allegedly resulting in Kline's being denied a promotion and being refused the
opportunity to participate in specialized training. The District Court dismissed Count II
for failure to state a claim, finding that Kline had no protected liberty or property interest
in a promotion or training opportunity. Without a protected liberty or property interest,
Kline had no procedural due process right connected with the denial of a promotion or
training opportunity. Because a civil conspiracy requires a separate underlying tort as a
predicate for liability, and because Kline failed to state a claim for deprivation of his due
6
process rights, the District Court found that Kline likewise failed to state a claim for civil
conspiracy. Kline contends that the District Court erred when it dismissed his civil
conspiracy claim.
On appeal, Kline changes gears. While in his complaint he alleged that the civil
conspiracy claim was based on a deprivation of his procedural due process rights, he
argues on appeal that his civil conspiracy claim is based on "valid claims against the PSP
Defendants for violations of his First Amendment rights." The District Court addressed
Count II as it was alleged and argued, and Kline has presented nothing on appeal that
would cast doubt on the correctness of the District Court's decision. Even if Count II
could be construed to state a claim for civil conspiracy to deprive Kline of his First
Amendment rights, Count II would still be subject to dismissal for failure to state a claim
because Kline failed to state a claim for violation of his First Amendment rights.
In Count IV of his complaint, Kline (a white man) alleged that, in violation of the
First, Thirteenth, and Fourteenth Amendments to the United States Constitution, Kline's
black supervisor accused Kline of racial profiling and instructed another officer to lower
Kline's employment evaluation as a result. The District Court dismissed Count IV with
leave to amend, noting that attempts to decipher Kline's claim "should be reserved for the
Plaintiff and his attorneys." Kline declined to amend his complaint; the officers renewed
their motion to dismiss; and the District Court again dismissed Count IV, finding the
"same difficulties to comprehend whether there is a viable legal theory implicated in
Count IV." Although Kline asserts on appeal that Count IV clearly sets forth a short and
7
plain statement entitling him to relief, we are unpersuaded.
Finding no error, we will affirm the District Court's order dismissing Kline's
claims.
8
