Civil Rights

CIVIL RIGHTS-TITLE IX

Doe v. Princeton Univ., 2022 U.S. App. LEXIS 8499 (3^rd Cir. March 31, 2022) (Matey, C.J.).  Dismissal of complaint against Princeton University under Title IX is reversed.  The case involved alleged physical contact that was inappropriate.  A report was produced by Princeton, but the District Court credited that report more than it did the allegations of the complaint.  That was error.  Doe argued that Princeton’s response to violations of the Order of non-harassment constitute sex discrimination.  The court found that based upon the pleadings, the case would go forward.

ATTORNEYS-HARASSMENT

Greenberg v. Goodrich, No. 20-03822 (E.D. Pa. March 24, 2022) (Kenney, J.).  United States District Court for the Eastern District of Pennsylvania Judge Kenney struck down Pennsylvania Disciplinary Board Rule 8.4(g) and its accompanying contents.

Rule 8.4(g) states:

It is professional misconduct for a lawyer to:

* * *

(g) in the practice of law, knowingly engage in conduct constituting harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude advice or advocacy consistent with these Rules.

The comments define the context the attorney would have and also defines “harassment” and “discrimination”.

Enforcement of the disciplinary rule is through the Office of Disciplinary Counsel (“ODC”), which is charged with investigating complaints against Pennsylvania-licensed attorneys for violation of the Pennsylvania Rules of Professional Conduct and, if necessary, charging, and prosecuting attorneys under the Pennsylvania Rules of Disciplinary Enforcement.

The Court first addressed the issue of standing.  The Court agreed that changes or revisions to prior amendments forming the current Rule should be evaluated under the doctrine of mootness and not standing.  The Rule limits what a lawyer may say, and it serves as a warning to Pennsylvania lawyers to self-sensor during the course of their interactions that fall within the Board’s broad interpretation of the practice of law.  The Court does not find that defendants have met their formidable burden to prove that it is absolutely clear that there is no reasonable expectation that plaintiff could be affected by the Amendments and thus this Court continues to the merits of the constitutional challenge.  In addressing “overbreadth”, the Court noted that there is no genuine dispute as to any material fact that the Rule limits what a lawyer may say and it serves as a warning to Pennsylvania lawyers to self-sensor during the course of their interactions that fall within the Board’s broad interpretation of the practice of law.  Regardless of the laudatory purpose, the state simply does not have the authority to police professionals in their daily lives to root out speech that the state deems to be below “common decency”.  That nebulous notion of decency, combined with the exceptional authority the state would have if allowed to monitor attorneys outside of judicial proceedings and representation of a client and determine whether they are “decent” enough causes this Court grave concern.  Attorney speech under Rule 8.4(g) will be given the full protection of the First Amendment.  The Court finds that the Amendments, including Rule 8.4(g) and comments 3 and 4 constitute viewpoint-based discrimination in violation of the First Amendment.

The Court finds that Rule 8.4(g) regulates speech based on the message a speaker conveys and is, therefore, subject to strict scrutiny. “To survive strict scrutiny analysis, a statute must: (1) serve a compelling governmental interest; (2) be narrowly tailored to achieve that interest; and (3) be the least restrictive means of advancing that interest.” ACLU v. Mukasey, 534 F.3d 181, 190 (3d Cir. 2008).

Further, it is not the role of the government to ensure that all lawyers are noble guardians of the profession or well-liked by the public. That is equivalent to requiring that all public school teachers love children or insisting all doctors develop a good bedside manner. Would we prefer that in an ideal world? Sure. But it is not for the government to enact regulations that monitor the type of people who work in a particular profession. Ultimately, Defendants want the Court to blindly accept anti-harassment and anti-discrimination policy as an overwhelming good that is justified in and of itself, and the Court cannot do so without more focus in the state’s interests for enacting this particular rule. This nebulous good is insufficient to serve as a compelling interest to restrict freedom of speech and expression. Even so, for the sake of the government at this procedural stage in summary judgment, the Court will evaluate the rest of the test assuming the government has a compelling interest in regulating attorneys through Rule 8.4(g).  The Court finds that Rule 8.4(g) does not pass the strict scrutiny test for constitutionality.

Finally, considering limiting constructions offered by ODC does not solve the problem of overbreadth. ODC may promise not to enforce Rule 8.4(g) in the way its plain language suggests, yet the investigatory process itself has a chilling effect on Mr. Greenberg’s speech and will cause him, and likely other attorneys, to self-censor. There is no dispute that each complaint ODC receives triggers an investigatory process and that ODC may contact an attorney during that investigation. Even if ODC promises not to enforce the Rule against attorneys in situations like Mr. Greenberg’s, there are still First Amendment concerns regarding the initial complaint and investigation process that ODC’s promises do not resolve. Therefore, even after considering a limiting construction, the Amendments still prohibit a substantial amount of protected speech and are unconstitutionally overbroad.

The Court finds that Rule 8.4(g) is an unconstitutional infringement of free speech according to the protections provided by the First Amendment. The Court also finds that Rule 8.4(g) is unconstitutionally vague under the Fourteenth Amendment. Therefore, the Court grants Plaintiff’s Motion for Summary Judgement and denies Defendants’ Motion for Summary Judgment.

CIVIL RIGHTS-TITLE IX-MURDER IN DORM ROOM

Hall v. Millersville Univ., 2022 U.S. App. LEXIS 715 (3^rd Cir. January 11, 2022) (Nygaard, C.J.).  John and Jeanette Hall (“the Halls”) sued Millersville University (“Millersville”) under Title IX after their daughter, Karlie Hall, was murdered in her dorm room by her boyfriend, Gregorio Orrostieta. Despite finding genuine issues of material fact for each element of the Halls’ Title IX claim, the District Court granted summary judgment in Millersville’s favor, holding that Millersville lacked notice it could face liability under Title IX for the actions of a non-student guest. The Halls appeal, and this Court must now consider whether Millersville had adequate notice it could be liable under Title IX for its deliberate indifference to known sexual harassment perpetrated by a non-student guest. We hold Millersville had such notice.

Title IX’s plain terms notify federal funding recipients that they may face monetary liability for intentional violations of the statute. Moreover, it is an intentional violation of Title IX’s terms for a funding recipient to act with deliberate indifference to known sexual harassment where the recipient exercises substantial control over the context in which the harassment occurs and the harasser, even if they are a third party. Given this framework, we conclude the text of Title IX provides Millersville and other federal funding recipients with adequate notice. We must therefore reverse and remand. Nevertheless, because we agree with the District Court that genuine issues of material fact exist for each element of the Halls’ Title IX claim, we will affirm the District Court’s order to the extent it holds these factual disputes preclude summary judgment in Millersville’s favor.

Against this backdrop, and for the reasons we set forth herein, we conclude that the District Court erred in holding that Millersville lacked adequate notice of liability that it could be held monetarily liable under Title IX for its deliberate indifference to a nonstudent’s conduct.  The Supreme Court made clear in Davis that a funding recipient may be liable for acts of sexual harassment by individuals other than students. 526 U.S. at 643-46. Though Davis concerned only deliberate indifference to known student-on-student harassment, the Court’s holding was not based upon the classification of the harasser as a student, guest, or other type of third party. See also Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170 (10th Cir. 2007) (nonstudent football recruits). Instead, the Court’s focus was on whether the funding recipient had control over the harasser and the context of the harassment since the funding recipient can only “subject” students to discrimination under Title IX if it has control over the harasser and remains deliberately indifferent to the harasser’s actions. Davis, 526 U.S. at 644-46.

The record shows that Millersville knew, and intended, for its Title IX policies to apply to nonstudents. Millersville’s 2014 Title IX policy, which was in place while Karlie was enrolled, defined sexual misconduct to include sexual assault and intimate partner/dating violence, and also required that incidents of sexual misconduct be reported to Millersville’s Title IX Coordinator. More importantly, as admitted by Millersville’s corporate designee, this policy “cover[ed] all areas of University operations, programs, sites, and include[d] the conduct of employees, students, visitors/third parties, and applicants.” District Court Docket No. 148-20, Deposition of Elizabeth Swantek, 37:5-39:16. Millersville also believed that sexual misconduct as defined in its 2014 Title IX policy violated Title IX. Millersville’s own Title IX policy thus contemplated Title IX liability could result from the actions of third parties such as “visitors” like Orrostieta. Although we do not rely on Millersville’s 2014 Title IX policy for our holding or as an indicium of congressional notice, “we do find support for our reading of Title IX in the fact that [Millersville itself] rendered an analogous interpretation.” Davis, 526 U.S. at 647.

We find additional support for our holding in the same Office for Civil Rights guidance materials considered by the District Court.  Throughout, the Office for Civil Rights explains that sexual harassment by third parties could result in liability. See e.g., Office for Civil Rights; Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12034-01 (Mar. 13, 1997)

To prevail on their Title IX claim, the Halls must show:

1)   Millersville received federal funds;

2)   sexual harassment occurred;

3)   Millersville exercised substantial control over the harasser and the context in which the harassment occurred;

4)   Millersville had actual knowledge of the harassment;

5)   Millersville was deliberately indifferent to the harassment; and

6)   the harassment was so severe, pervasive, and objectively offensive that it deprived Karlie Hall of her access to the educational opportunities or benefits provided by the school.

The record showed that the abuse and danger Karlie faced from Orrostieta were reported to several persons at Millersville who had some authority to take corrective action in this case.

Altogether, our review of the record convinces us that the Halls have satisfied their burden to defeat Millersville’s motion for summary judgment, as there are genuine disputes of fact as to each element of the Halls’ deliberate indifference claim. As such, we affirm the portion of the District Court’s opinion which held that the existence of these genuine disputes precludes summary judgment in Millersville’s favor. Nevertheless, because we disagree with the District Court that Millersville lacked notice, we must reverse. Accordingly, the judgment of the District Court for the Eastern District of Pennsylvania is reversed, and this case is remanded for further proceedings consistent with this opinion.

COVID-19-MASK MANDATES IN SCHOOL

Corman v. Acting Secy. Of the Pa. Dep’t of Health, 2021 Pa. LEXIS 4348 (December 10, 2021) (Wecht, J.)  We granted expedited review of this direct appeal to decide whether the Commonwealth Court erred in concluding that Acting Secretary of Health Alison Beam (“the Secretary”) lacked the power under existing law and Department of Health regulations to require individuals to wear facial coverings while inside Pennsylvania’s schools as a means of controlling the spread of COVID-19. Having determined that the Secretary exceeded her authority in issuing that directive, by per curiam order on December 10, 2021, we affirmed the lower court’s decision nullifying the mandate.

Exercising our King’s Bench authority, we upheld the Governor’s business-closure order as a permissible exercise of the Commonwealth’s general police power under the Emergency Code. See Friends of Danny DeVito v. Wolf, 227 A.3d 872, 890-92 (Pa. 2020) (“The protection of the lives and health of millions of Pennsylvania residents is the sine qua non of a proper exercise of police power.”).

For businesses that were permitted to maintain in-person operations, Secretary Levine directed the implementation of stringent COVID-19 mitigation protocols, including a requirement that employees and patrons alike wear face coverings while on business premises. This mandate later was expanded to require all individuals to wear masks while “outdoors and unable to consistently maintain a distance of six feet from individuals who are not members of their household”; “in any indoor location where members of the public are generally permitted”; when utilizing public transportation; when “obtaining services from the healthcare sector in” various settings and facilities; and generally while engaged in work, whether at the workplace or performing work off-site, when interacting in-person with any member of the public, working in any space visited by members of the public, working in any space where food is prepared or packaged for sale or distribution to others, working in or walking through common areas, or in any room or enclosed area where other people, except for members of the person’s own household or residence, are present when unable to physically distance.

The Secretary presents the following questions for our review:

1. Did the General Assembly empower the Department of Health to issue an order requiring masking in school buildings, as the most efficient and practical means to suppress the transmission of COVID-19 among unvaccinated school children, without having to engage in the lengthy process of promulgating a new regulation?
2. Did the General Assembly violate the Non-Delegation Doctrine in granting the Department of Health authority and discretion to quickly suppress novel diseases afflicting the Commonwealth?

While Appellees acknowledge that the Department has authority to isolate, segregate, quarantine, and surveil persons or animals with communicable diseases and those persons or animals who come into contact with the infected, they contend that there is no existing rule that vests the Department with the authority to issue a mask order. Id. at 17. The Administrative Code and Department of Health Act provide “general policy statement[s] regarding the general duties of the Department,” but they do not authorize the Order absent a rule or regulation to that effect. Id. at 16. Because the relevant statutes are clear and unambiguous in Appellees’ view, the Secretary’s interpretation is not entitled to deference. Id. at 18. As she failed to comply with Pennsylvania’s formal rule-making procedures in promulgating the Order, it is void ab initio. Id. at 19-25; see id. at 22-24 (likening the Mask Mandate to the CDC’s extension of the nationwide eviction moratorium, which the Supreme Court struck down in Alabama Association of Realtors v. Department of Health and Human Services, 141 S. Ct. 2485, 2489, 210 L. Ed. 2d 856 (2021) (per curiam) (explaining that “the Government’s read of § 361(a) [of the Public Health Service Act for authority to promulgate and extend the eviction moratorium] would give the CDC a breathtaking amount of authority”)).

To the extent that the Department attempts to extract ambiguity from the regulation’s “any other disease control measure” catch-all, that, too, is constrained by the “appropriate for the surveillance of disease” language, which is further limited by the criteria for individualized consideration contained in Section 27.60(b). The Department’s view is not persuasive in the face of these difficulties with its position.

To be clear, where an agency is authorized to act, it is entitled to some latitude for discretionary matters committed to its expertise-based judgment by statute, such as the Department of Health’s power and duty to “determine and employ the most efficient and practical means for the prevention and suppression of disease.” 71 P.S. § 532.

In sum, absent a gubernatorial disaster emergency declaration suspending the framework of laws governing agency rulemaking in Pennsylvania, the Department was obligated to follow the procedures set forth in the Regulatory Review Act, the Commonwealth Documents Law, and the Commonwealth Attorneys Act before promulgating a new disease control measure with the force of law. Because the Secretary circumvented that process, her Order was void ab initio.

We do not question the efficacy of masking as a means by which to curb the incidence and spread of aerosolized communicable diseases like COVID-19. But it is not our prerogative to substitute our views for those of the policy-making branches of our Commonwealth’s government, especially on an issue as fraught with uncertainty as how best to respond to an evolving public health emergency. We leave that solemn duty to the people’s elected representatives and their lawful designees. Our role in this case is limited to deciding whether it was within the Acting Secretary of Health’s authority under existing laws and regulations to issue a statewide school mask mandate. Respectfully, we conclude that it was not.

Accordingly, the judgment of the Commonwealth Court is hereby affirmed.

Chief Justice Baer and Justices Todd, Donohue, Dougherty and Mundy join the opinion.

Justice Saylor did not participate in the consideration or decision of this matter.

CIVIL RIGHTS-POLICE MISCONDUCT-POLICE SHOOTING-CAR CHASE

Jefferson v. Lias, 2021 U.S. App. LEXIS 37115 (3^rd Cir. December 16, 2021) Restrepo, C.J. This appeal involves claims arising out of a police shooting that occurred during the course of a car chase. Appellant Devin Jefferson challenges the District Court’s grant of summary judgment against his Fourth Amendment excessive force and Monell failure-to-train claims, brought against Appellees Officer George Lias and the City of Elizabeth, respectively. The District Court determined that Officer Lias was entitled to qualified immunity, and moreover that Jefferson suffered no constitutional injury, leaving no basis for his Monell claim. For reasons we will explain below, we will reverse the District Court’s order with respect to both claims and remand for further proceedings in accordance with this opinion.

We were confronted with a very similar and instructive set of circumstances in Abraham, 183 F.3d at 282. In that case, an off-duty police officer, Raso, shot and killed an individual, Abraham, who was attempting to flee in his car from a Macy’s from which he had shoplifted merchandise. Id. Multiple issues were disputed, including where exactly the officer was positioned vis-à-vis the vehicle in the moments leading up to and during the shooting; how chaotic the pursuit had been prior to that moment; how quickly Abraham accelerated once in his car; and whether the officer was in danger of being run over by Abraham. Id. at 283-85. However, despite the lack of clarity in the record as to where exactly the officer was standing when the bullet was fired, the “shot indisputably came through the driver’s side window.” Id. at 293.

Just like in Abraham, the District Court here engaged in an analogous weighing of the evidence in determining that Jefferson “presented a danger to those in the area” based on his escape. App. 11. We see no reason to depart from the standard course established by our precedent in this case. As we decided in Abraham, a jury ought to have the opportunity to make factual determinations regarding Officer Lias’s decision to employ deadly force against Jefferson.

Whereas here, Officer Lias did not witness or know about any similar facts before using deadly force against Jefferson. Lias did not wait until Jefferson’s vehicle was stationary to fire his weapon. Lias also had no reason to believe Jefferson was armed, and he was working only with the knowledge that Jefferson was possibly driving a stolen vehicle. App. 359-60. Furthermore, video footage makes clear that neither Officer Lias nor anyone else was in danger of being struck by Jefferson as he was passing him.

Finally, the District Court determined that Jefferson’s Monell failure to train claim against the City of Elizabeth failed as a matter of law because he could not demonstrate any underlying constitutional violation. See Mulholland v. Gov’t Cty. of Berks, 706 F.3d 227, 238 n.15 (3d Cir. 2013) (noting “[i]t is well-settled that, if there is no violation in the first place, there can be no derivative municipal claim” based on Monell). Given our contrary conclusion that Jefferson may be able to make out a Fourth Amendment excessive force claim against Lias, however, we will reverse the District Court’s ruling on Jefferson’s Monell claim and request that the District Court analyze it on the merits in the first instance.

COVID-19-MASKS IN SCHOOL

Oberheim v. Bason, 2021 U.S. Dist. LEXIS 188843 (M.D. Pa. September 30, 2021) (Brann, D.J.).  The Constitution does not guarantee students a right to attend school without wearing a mask and being required to do so neither inflicts irreparable harm nor in any way violates students’ rights to freely associate and assemble with others.  The court therefore denied the parents’ motion for preliminary and permanent injunction.  This was a Judge Brann opinion.  The court is not aware of any cases standing for the proposition that school masking requirements violate a parent’s right to raise their children.  Parents are not entitled to undermine the government’s public health efforts during a global pandemic by refusing to have their children comply with a school masking requirement.  There is no property interest at issue.  The mandate does not exclude students from school.  There is no deprivation of students’ legitimate entitlement to public education.  Due process is said by Judge Brann not to apply.  Plaintiffs have failed to identify a protected liberty or property interest abridged by the school mask mandate and failed to demonstrate that any purported deprivation occurred without due process.  Substantive due process.  The school mask mandate follows an express decree by Secretary Beam requiring same.  The court finds the mask mandate rationally related to a legitimate interest introducing the spread of COVID-19.  Freedom of association.  The mandate does not place a significant burden on students’ rights to freely associate.

CIVIL RIGHTS-BIVENS-TRANSGENDER PRISONER

Shorter v. United States, 2021 U.S. App. LEXIS 26369 (3^rd Cir. September 1, 2021) (Ambro, C.J.).  Chrissy Shorter is a transgender woman who alleges she was stabbed and raped by a fellow inmate while in federal prison despite having warned prison officials repeatedly that she was concerned about being assaulted. She brought a pro se suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), claiming officials violated her Eighth Amendment rights by displaying deliberate indifference to the substantial risk that another inmate would assault her. Invoking its authority under 28 U.S.C. §§ 1915 and 1915A, the District Court dismissed her complaint sua sponte before allowing her to serve the defendants. Shorter argues on appeal that a Bivens remedy is available and that the District Court erred by ignoring relevant factual allegations and imposing a needlessly demanding standard on her pro se complaint. The Government responds that we should not recognize a Bivens remedy in this context. Shorter has the better argument. Her case falls comfortably within one of the few contexts in which the Supreme Court has recognized a Bivens remedy. And because Shorter adequately pleaded a violation of the Eighth Amendment, the District Court erred in dismissing that claim so early in the proceeding. We therefore reverse the dismissal of the Eighth Amendment claim and remand.

To be sure, Shorter’s claim may yet fail if the Defendants acted reasonably in response to the risk to her safety. See Farmer, 511 U.S. at 844 (“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.”). We express no opinion on that fact-intensive question. But Shorter has provided sufficient allegations of the Defendants’ deliberate indifference to proceed to the next stage in the litigation. Hamilton v. Leavy, 117 F.3d 742, 748 (3d Cir. 1997) (concluding that it was inappropriate to decide the reasonableness of the defendants’ actions even at the summary judgment stage because there were genuine disputes of material fact). Dismissing Shorter’s Eighth Amendment claim at the screening stage—before discovery and before Shorter even had the chance to serve process—requires a remand.

CIVIL RIGHTS-WHITE PERSON

Kengerski v. Harper, 2021 U.S. App. LEXIS 22494 (July 29, 2021) (Ambro, C.J.).  Jeffrey Kengerski, a Captain at the Allegheny County Jail, made a written complaint to the jail Warden alleging that a colleague had called his biracial grand-niece a “monkey” and then sent him a series of text messages with racially offensive comments about his coworkers. Seven months later, Kengerski was fired. He contends the County fired him in retaliation for reporting his colleague’s behavior and sued the County under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). The District Court granted the County’s motion for summary judgment, holding that Kengerski, who is white, could not maintain a claim for Title VII retaliation. We disagree. Title VII protects all employees from retaliation when they reasonably believe that behavior at their work violates the statute and they make a good-faith complaint. As relevant here, harassment against an employee because he associates with a person of another race, such as a family member, may violate Title VII by creating a hostile work environment. Because a reasonable person could believe that the Allegheny County Jail was a hostile work environment for Kengerski, we vacate the District Court’s grant of summary judgment. This does not mean that Kengerski will ultimately succeed on his retaliation claim, or even that it must survive summary judgment on remand. The County claims that it fired him for an unrelated reason that is unquestionably serious: mishandling a sexual harassment claim. We therefore remand to the District Court to consider whether Kengerski has sufficiently shown that he was fired because of his Title VII complaint.

CIVIL RIGHTS-ABSTENTION

Vuyanich v. Smithton Borough, 2021 U.S. App. LEXIS 22190 (July 27, 2021) (Ambro, C.J.).  Two homeowners allegedly treated their property as a junkyard. This resulted in misdemeanor criminal charges against one of the homeowners for creating a public nuisance. The surrounding borough sought to clean up the property while the charges were pending, and a Pennsylvania state court judge authorized the borough to do so after giving the homeowner a brief window to collect any belongings he wished to keep. The homeowners failed to retrieve their possessions during this window, and thereafter the borough and other affiliated entities hauled away the vehicles and other items that were strewn throughout the yard. In an effort to obtain damages compensating them for their seized property, the homeowners filed suit in federal court, alleging violations of the United States Constitution and state law.

The District Court dismissed the complaint, holding it lacked jurisdiction under the Rooker-Feldman doctrine, which precludes federal district courts from exercising jurisdiction over appeals from unfavorable state court judgments— typically a task reserved for the United States Supreme Court. But that Court has repeatedly emphasized that the doctrine is a narrow one that defeats federal subject-matter jurisdiction only under limited circumstances. And we have a precise four-pronged inquiry for when Rooker-Feldman should be invoked. When even one of the four prongs is not satisfied, it is not proper to dismiss on Rooker-Feldman grounds. Because this case does not satisfy all four prongs, we reverse.

In so holding, we do not suggest that federal cases implicating matters previously litigated in state court should automatically survive a motion to dismiss. Far from it: there are many other principles, including claim and issue preclusion, that may doom such federal claims. But many of those principles are non-jurisdictional, and courts should be wary of finding a Rooker-Feldman jurisdictional issue where none exists.

ANTITRUST-NCAA-SALARIES

NCAA v. Alston, 2021 U.S. LEXIS 3123 (June 21, 2021) (Gorsuch, J.)  In the Sherman Act, Congress tasked courts with enforcing a policy of competition on the belief that market forces “yield the best allocation” of the Nation’s resources. National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85, 104, n. 27, 104 S. Ct. 2948, 82 L. Ed. 2d 70 (1984). The plaintiffs before us brought this lawsuit alleging that the National Collegiate Athletic Association (NCAA) and certain of its member institutions violated this policy by agreeing to restrict the compensation colleges and universities may offer the student-athletes who play for their teams. After amassing a vast record and conducting an exhaustive trial, the district court issued a 50-page opinion that cut both ways. The court refused to disturb the NCAA’s rules limiting undergraduate athletic scholarships and other compensation related to athletic performance. At the same time, the court struck down NCAA rules limiting the education-related benefits schools may offer student-athletes—such as rules that prohibit schools from offering graduate or vocational school scholarships. Before us, the student-athletes do not challenge the district court’s judgment. But the NCAA does. In essence, it seeks immunity from the normal operation of the antitrust laws and argues, in any event, that the district court should have approved all of its existing restraints. We took this case to consider those objections. The court adopts a rule of reason approach and defines what that is.  The court also sustained the district court’s injunction.  The lower courts did not err by subjecting NCAA compensation restrictions to a rule of reason analysis.  Further, the NCAA gets no immunity because they are dealing with students.  The court enjoined only restraints on education-related benefits, such as those limiting scholarships for graduate school, payments for tutoring, and the like.  The court did so only after finding that relaxing these restrictions would not blur the distinction between college and professional sports and thus impair demand, and only after finding that this course represented a significantly less restrictive means of achieving the same procompetitive benefits as the NCAA’s current rules.  The court turned down the NCAA’s objections.  Under the current decree, the NCAA is free to forbid in-kind benefits unrelated to a student’s actual education; nothing stops it from enforcing a “No Lamborghini” rule.

CIVIL RIGHTS-IMMUNITY-QUALIFIED IMMUNITY

Hira Educational Services North America v. Augustine, 2021 U.S. App. LEXIS 7401 (3^rd Cir. March 15, 2021).  This dispute involves the sale of property owned by the Commonwealth of Pennsylvania. Each year, the Pennsylvania Department of General Services (DGS) develops a plan to sell Commonwealth-owned property. 71 PA. STAT. AND CONS. STAT. ANN. § 651.3 (West). The Pennsylvania General Assembly, comprised of the Senate and the House of Representatives, must approve DGS’s plan. § 651.4. In 2017, consistent with the plan approved by the General Assembly, DGS solicited bids for the purchase of the New Castle Youth Development Center, a property which had housed juvenile offenders in Shenango Township until it closed in 2013. DGS had been trying to sell the property for several years but never received an adequate bid. This time, Appellee HIRA—a consulting agency for Islamic educational groups—submitted the highest bid of $400,000. HIRA wanted to use the property to establish a youth intervention center much like the one located there before. HIRA also hoped to establish an Islamic boarding school on the property. DGS accepted HIRA’s bid, and the parties entered into a land sale agreement.

For the reasons stated, we will reverse in part and affirm in part. We will reverse the District Court’s order denying Vogel and Sainato’s motions to dismiss based on absolute and qualified immunity. Bernstine is entitled to absolute immunity for some of the allegations made against him, so we will reverse the District Court’s order except as to those actions for which he is not entitled to absolute immunity. We leave those issues to the District Court on remand.

WORKERS’ RIGHTS-AGE DISCRIMINATION-PLEADING

Martinez v. UPMC Susquehanna, No. 19-2866 (3^rd Cir. January 29, 2021) (Bibas, C.J.)  At the pleading stage, an age-discrimination plaintiff does not have to know his replacement’s exact age. That age can come out in discovery.

A hospital allegedly fired orthopedic surgeon Zeferino Martinez without much explanation and replaced him with two younger doctors. The District Court dismissed his age-discrimination suit, treating as conclusory his allegation that his replacements were “significantly younger.” But that age gap, we hold, is a factual allegation that the District Court must take as true. It does enough to put the employer on notice. The hospital knows the younger doctors’ exact ages and specialties, and discovery will let Martinez uncover those and other details in time for summary judgment and trial. We will thus reverse.

Because the complaint did not allege Hunter’s and Jarvis’s ages and specialties, the court thought it could not infer age discrimination.

The court need only be able to draw a “reasonable inference” that the defendant has broken the law. Id.

The court must take the complaint’s factual allegations as true. But it may disregard labels, conclusions, and “formulaic recitation[s] of the elements.” Twombly, 550 U.S. at 555. If, after that, the pleaded facts plausibly entitle the plaintiff to relief, the case should proceed to discovery.

The issue here is whether the phrase “significantly younger” is a factual allegation that the District Court must take as true, or instead a legal conclusion. We hold that it is factual. To survive a motion to dismiss, Martinez did not have to allege his replacements’ exact ages or specialties.

1. What a plaintiff must prove at trial. An employer may not fire or refuse to hire someone because of that person’s age. 29 U.S.C. § 623(a)(1). So an age-discrimination plaintiff must prove that it is more likely than not that, but for his age, the employer would not have fired or failed to hire him. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78(2009). If the plaintiff relies on circumstantial evidence, courts use the three-part burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015). First, the plaintiff must make out a prima facie case. Id. Next, the employer must offer a legitimate, nondiscriminatory explanation for its action. Id. Finally, the plaintiff must show that this reason was a pretext for discrimination. Id.
2. What a plaintiff must show to survive summary judgment. The summary-judgment framework is the same. At summary judgment, a plaintiff relying on circumstantial evidence must make out a prima facie case under McDonnell Douglas. An age-discrimination plaintiff must show that (1) he is at least forty, (2) he is qualified for the job, (3) he suffered an adverse employment action, and (4) he was replaced by (or passed over in favor of) someone else “who was sufficiently younger so as to support an inference of a discriminatory motive.” Willis, 808 F.3d at 644. After the prima facie case is shown, the court proceeds through the second and third steps of the McDonnell Douglasburden-shifting framework. Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997).
3. What a plaintiff must allege to defeat a motion to dismiss. To defeat a motion to dismiss, it is sufficient to allege a prima facie case. Castleberry v. STI Grp., 863 F.3d 259, 266(3d Cir. 2017). But it is not necessary. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002), cited with approval in Twombly, 550 U.S. at 569-70. The complaint need only allege enough facts to “raise a reasonable expectation that discovery will reveal evidence of [each] necessary element.” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).

In an age-discrimination suit, the legal conclusion that the plaintiff needs to win is that the employer took the adverse action because of the plaintiff’s age. The replacements’ exact ages are not ultimate issues or even legally mandated elements. Indeed, no minimum age gap is needed to find that the replacement is “sufficiently younger.” Barber v. CSX Distrib. Servs., 68 F.3d 694, 699 (3d Cir. 1995). True, proof that the replacement is significantly younger can satisfy the fourth prong of a prima facie case. But claims premised on direct evidence of age discrimination do not require a prima facie case at all. Swierkiewicz, 534 U.S. at 511.

Martinez alleges a commonsense fact. He does not ask us to take as true that the hospital discriminated against him based on his age. He asks us only to accept that the men who replaced him were “significantly younger” than he was. That is a matter of common parlance and observation. People often look at someone’s appearance or experience and infer that person’s rough age. The inference is imperfect, but it is enough to get to discovery.

Commonsense allegations are used in other types of discrimination cases too. For instance, a Title VII complainant can allege that his replacement is of a different race or national origin. See, e.g., Swierkiewicz, 506 U.S. at 514; Littlejohn v. City of New York, 795 F.3d 297, 313 (2d Cir. 2015). One can plead someone else’s race or national origin based on observation, without genealogy, even though these observations are fallible. So too an age-discrimination plaintiff can plead a substantial age gap without knowing dates of birth. This is a commonsense description of a subsidiary fact, not the ultimate issue the plaintiff must prove.

The complaint does enough to put the hospital on notice. It alleges who fired Martinez, when, and how. It names his replacements and alleges that they were “significantly younger.” Though Martinez is unlikely to know his replacements’ exact ages and specialties until discovery, the hospital can look up this information in its records. It now knows enough to respond. See Fowler, 578 F.3d at 212.

* * * * *

Martinez plausibly pleaded age discrimination. He alleged that his replacements were “significantly younger.” That was enough. He did not also have to allege their specialties or exact age gaps in his complaint. We will thus reverse and remand to let this case proceed to discovery.

CIVIL RIGHTS-1983-GOOD FAITH DEFENSE

Arthur Diamond v. Pennsylvania State Education Association, No. 19-2812 (3^rd Cir. August 28, 2020) Rendell, C.J.  In reliance on a Pennsylvania statute and the Supreme Court’s decision in Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), Appellee Unions, the Service Employees International Union Local 668 and the Pennsylvania State Education Association, collected “fair-share fees” from Appellants over Appellants’ objections. But the Supreme Court overruled Abood in Janus v. AFSCME Council 31, holding that state legislation condoning public-sector fair-share fees was unconstitutional. 138 S. Ct. 2448 (2018) (“Janus I”). Now, Appellants bring these § 1983 lawsuits seeking reimbursement of the sums they were required to pay. The District Courts, joining a consensus of federal courts across the country, dismissed Appellants’ claims for monetary relief, ruling that because the Unions collected the fair-share fees in good faith reliance on a governing state statute and Supreme Court precedent, they are entitled to, and have successfully made out, a good faith defense to monetary liability under § 1983. We will affirm.

We are not the first court of appeals to rule on this question, and we join a growing consensus of our sister circuits who, in virtually identical cases, have held that because the unions collected the fair-share fees in good faith reliance on a governing state statute and Supreme Court precedent, they are entitled to a good faith defense that bars Appellants’ claims for monetary liability under § 1983. See Janus v. AFSCME, Council 31, 942 F.3d 352 (7th Cir. 2019) (“Janus II”); Mooney v. Ill. Educ. Ass’n, 942 F.3d 368 (7th Cir. 2019); Danielson v. Inslee, 945 F.3d 1096 (9th Cir. 2019); Lee v. Oh. Educ. Ass’n, 951 F.3d 386 (6th Cir. 2020); Ogle v. Ohio Civil Serv. Emps. Ass’n, AFSCME Local 11, 951 F.3d 794 (6th Cir. 2020); Wholean v. CSEA SEIU Local 2001, 955 F.3d 332 (2d Cir. 2020).

And let us be clear: we are not talking about an across-the-board good faith defense to a § 1983 action that is inconsistent with the common law. Instead, we are talking about prohibiting monetary liability when a private-party defendant acted in good faith reliance on a statute enacted in accordance with binding Supreme Court precedent in a situation that has no exact analogue at common law. Doesn’t the analogy to abuse of process in note 4 below—or, in its own way, JUDGE FISHER’s intensive historical analysis—make that very point? See also, e.g., Janus II, 942 F.3d at 365 (noting that no common law tort “is a perfect fit”).

Jordan therefore established that the good faith defense is available to a private-party defendant in a § 1983 case if, after considering the defendant’s “subjective state of mind,” id. at 1277, the court finds no “malice” and no “evidence that [the defendant] either knew or should have known of the statute’s constitutional infirmity,” id. at 1276.

As Judge Wood noted in Janus II, the good faith defense to section 1983 liability is “narrow” and “only rarely will a party successfully claim to have relied substantially and in good faith on both a state statute and unambiguous Supreme Court precedent validating that statute.” 942 F.3d at 367. In this unique circumstance, the good faith defense applies here to protect the Unions from monetary liability under § 1983. Accordingly, we will affirm the District Courts’ judgments.

CIVIL RIGHTS-STATE CREATED DANGER-911 ERROR

Johnson v. City of Philadelphia, No. 19-2938 (3^rd Cir. September 22, 2020) Matey, C.J.  Johnson family died in a fire.  Dispatcher did not act affirmatively and operator’s behavior did not shock the conscience.  What happened here was that operator sent rescuers to wrong address.  He relayed the correct address to the fire department dispatcher, who rerouted the rescuers. While the location of the fire was correct, the scope of the emergency was not since neither the operator nor the dispatcher told the firefighters that the Johnson family was waiting inside the building.  The firefighters left after extinguishing the fire without looking for them.  Days later, after relatives reported them missing, a search of the building found their bodies, dead from smoke inhalation.  The court dismissed the case, saying that it was not a violation for state-created danger theory.  The court warned against superimposing tort law over the constitution.  The Third Circuit recognizes state-created theory of danger, but the Supreme Court has not.  Plaintiff has to plead four (4) elements for state-created danger:  (1) foreseeable and fairly distinct harm; (2) action marked by a degree of culpability that shocks the conscience; (3) a relationship with the state making the plaintiff a foreseeable victim rather than a member of the public in general; and (4) an affirmative use of state authority in a way that created a danger or made others more vulnerable than had the state not acted at all.   The operator’s alleged actions were a negligent error and the court said there was no claim. Monell did not apply.  There is not a history of similar problems at the fire department.  There was no intentional misconduct.  The real property exception of Pennsylvania’s immunity statute does not apply. Circuit Judge Matey concurring in Judge Porter’s view to revisit the state-created danger doctrine and apparently they want to narrow it.

CIVIL RIGHTS-FALSE ARREST

Harvard v. Cesnalis, 2020 U.S. App. LEXIS 27773 (3^rd Cir. September 1, 2020) Rendell, C.J.  This case involves a series of troubling events resulting in Appellant Dwayne Harvard being arrested and charged with six state crimes ranging from reckless endangerment to driving under the influence. Harvard brought an action under 42 U.S.C. § 1983 against the involved police officers in the United States District Court for the Western District of Pennsylvania claiming false arrest, false imprisonment, malicious prosecution, violation of his right to Equal Protection, reckless investigation, and civil conspiracy. The District Court granted summary judgment for the defendant police officers, 3 concluding inter alia that no reasonable juror could conclude that the officers lacked probable cause to arrest Harvard for the crimes charged. We disagree. We will vacate the District Court’s grant of summary judgment for defendant state trooper Christopher Cesnalis as to the false arrest, false imprisonment, malicious prosecution and Equal Protection claims. We will affirm the District Court’s grant of summary judgment in favor of Cesnalis as to the remaining claims. We will also affirm the District Court’s grant of summary judgment in favor of defendant state trooper Daniel Beatty on all claims.

 

False Arrest.  To bring a claim for false arrest, a plaintiff must establish “(1) that there was an arrest; and (2) that the arrest was made without probable cause.” James v. City of WilkesBarre, 700 F.3d 675, 680 (3d Cir. 2012). The parties agree that Cesnalis arrested Harvard at the scene but disagree on whether Cesnalis had probable cause to arrest him. False arrest and false imprisonment claims will “necessarily fail if probable cause existed for any one of the crimes charged against the arrestee.” Dempsey, 834 F.3d at 477. Thus, summary judgment for false arrest and false imprisonment is proper only if no reasonable juror could find a lack of probable cause for any of the charged crimes. We must therefore assess the requirements for all of the crimes charged to determine whether any reasonable juror could find that Cesnalis lacked probable cause to arrest Harvard. Harvard was arrested for six separate crimes and each of the six crimes has a different requisite mental state. We will therefore assess whether any reasonable juror could find that Harvard lacked the requisite mental state for each of the crimes charged.

 

Based on the information Cesnalis knew at the time of arrest and the horrific events Harvard had just experienced, a juror could find that Cesnalis did not have probable cause to arrest Harvard for DUI. Thus, we conclude that the District Court erred in determining, as a matter of law, that Cesnalis had probable cause to arrest Harvard for the crime of DUI. Accordingly, we will vacate the District Court’s grant of summary judgment for Cesnalis as to the false arrest claim.

 

False Imprisonment. “[W]here the police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention pursuant to that arrest.” Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). “To state a claim for false imprisonment, a plaintiff must establish: (1) that [he] was detained; and (2) that the detention was unlawful.” James, 700 F.3d at 682-83. Like his arrest, Harvard argues that he was imprisoned without probable cause. Specifically, Harvard alleges that he was unlawfully detained at the police barracks, where defendant Beatty required him to undergo a series of tests, and was later transported to the Allegheny County Jail, where he was imprisoned.

 

We will vacate the District Court’s grant of summary judgment for Cesnalis as to the false imprisonment claim. We will affirm the District Court’s grant of summary judgment for Beatty on the false imprisonment claim because his DRE, and thus his role in the detention, was based on Cesnalis’s incomplete and potentially falsified information.

 

Malicious Prosecution. To prevail on a malicious prosecution claim, a plaintiff must demonstrate that: “(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in [the] plaintiff’s favor; (3) the proceeding was initiated without 19 probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). Harvard argues that the defendants unlawfully initiated criminal proceedings against him by “knowingly providing false and misleading evidence to prosecuting authorities.” The defendants argue that the malicious prosecution claim fails because the criminal proceedings were initiated with probable cause.

 

Finally, for the fifth prong, Harvard was detained in Allegheny County Jail, and therefore suffered “post-indictment restrictions placed on [Harvard’s] liberty [that] constituted a seizure.” Donahue v. Gavin, 280 F.3d 371, 380 (3d Cir. 2002). Accordingly, we will vacate the District Court’s grant of summary judgment for Cesnalis as to the malicious prosecution claim.

 

Cesnalis’s deliberate omissions from the affidavit and potentially falsified information suggesting that Harvard had a prior criminal history all lend support to Harvard’s allegation that Cesnalis’s actions were motivated by a prohibited reason, in this case, racial animus.

 

We have never recognized an independent due process right to be free from a reckless investigation. See Geness v. Cox, 902 F.3d 344, 354 n.5 (3d Cir. 2018) (expressing “doubts” as to the viability of a reckless investigation claim). We have also held that, even if such a claim were cognizable, it “could only arise under the Fourth Amendment.” Id. We will therefore affirm the District Court’s grant of summary judgment for the defendants as to the reckless investigation claim.

 

Civil Conspiracy.  Harvard argues that the District Court erred in granting summary judgment for the defendants for his civil conspiracy claim. “To prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting under color of state law reached an understanding to deprive him of his constitutional rights.” Jutrowski v. Township of Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018) (internal quotation marks and citation omitted). This requires that the state actors took “concerted action” based on an “agreement” to deprive the plaintiff of his constitutional rights, and that there was an actual underlying constitutional violation of the plaintiff’s rights. Id. at 295.

 

We will affirm the District Court’s grant of summary judgment for the defendants as to the civil conspiracy claim.

 

For the foregoing reasons, we will vacate the District Court’s grant of summary judgment for Cesnalis as to the false arrest, false imprisonment, malicious prosecution and Equal Protection claims. We will affirm the District Court’s grant of summary judgment for Cesnalis on the reckless investigation and civil conspiracy claims. We will affirm the District Court’s grant of summary judgment for Beatty on all claims.

CIVIL RIGHTS-IMMUNITY-ABSOLUTE IMMUNITY-INVESTIGATORY CONDUCT

Weimer v. County of Fayette, 2020 U.S. App. LEXIS 26967 (3^rd Cir. August 25, 2020) Fisher, C.J.  Crystal Dawn Weimer spent more than eleven years in prison for murder. After her convictions were vacated, all charges against her were dismissed with prejudice. Weimer then filed suit under 42 U.S.C. § 1983, alleging that the County of Fayette, Pennsylvania; its former District Attorney, Nancy Vernon; the City of Connellsville; and several city and state police officers violated her rights under the U.S. Constitution and Pennsylvania law. In this interlocutory appeal, we address only a narrow sliver of this sweeping case: whether absolute immunity or, where raised, qualified immunity shields District Attorney Vernon from proceeding to discovery on certain of Weimer’s claims. After assuring ourselves of our jurisdiction, we address each immunity argument in turn. We conclude that, aside from Vernon’s approval of the criminal complaint, because Weimer alleges Vernon engaged in investigatory conduct, absolute immunity does not protect Vernon from suit. However, we also hold that Vernon is entitled to qualified immunity as to Weimer’s failure to intervene claim and as to Vernon’s alleged conduct in directing officers to investigate bite-mark evidence. Thus, we will affirm in part, reverse in part, and remand for further proceedings.

 

To the extent that Vernon’s alleged investigatory conduct, as identified above, forms the basis of Weimer’s malicious prosecution and civil rights conspiracy claims against Vernon, we will affirm the District Court’s denial of Vernon’s motion to dismiss these claims based on absolute immunity. We will, however, reverse the District Court’s denial of absolute immunity for Vernon’s approval of the criminal complaint and its denial of Vernon’s motion to dismiss the failure to intervene claim on the basis of qualified immunity. We will also reverse the District Court’s denial of qualified immunity for Vernon’s alleged conduct in directing officers to investigate the timing of the bite mark. Because qualified immunity shields Vernon from suit for her investigation into the bite-mark evidence, this conduct cannot be used to support Weimer’s malicious prosecution claim against Vernon.

CIVIL RIGHTS-PRETRIAL DETAINEE

Delade v. Cargan, 2020 U.S. App. LEXIS 26963 (3^rd Cir. August 25, 2020) Porter, C.J.  Donald DeLade claims that Pennsylvania State Trooper John Cargan violated his constitutional rights when Cargan caused him to be arrested and detained him based on fabricated evidence. DeLade asserted that his arrest and pretrial detention violated both the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. The District Court granted summary judgment to Cargan on the Fourth Amendment claims.¹ But on the Fourteenth Amendment claim, it declined to grant summary judgment or qualified immunity to Cargan. On appeal from the denial of qualified immunity, the question presented is whether DeLade’s claim of wrongful arrest and pretrial detention is cognizable under the Due Process Clause of the Fourteenth Amendment. We conclude that a claim alleging unlawful arrest and pretrial detention that occur prior to a detainee’s first appearance before a court sounds in the Fourth Amendment—and not the Due Process Clause of the Fourteenth Amendment. For that reason, we will reverse the District Court’s order denying summary judgment.

We now consider whether DeLade’s claim of unlawful arrest and pretrial detention is cognizable under the Due Process Clause of the Fourteenth Amendment. It is not. DeLade claims that Cargan violated his constitutional rights by causing him to be arrested and detained based on fabricated evidence—the changed status of the extradition warrant. And DeLade alleges that Cargan’s conduct caused his pretrial confinement until his extradition hearing, when the Commonwealth dropped the arrest-prior-to-requisition charge.

All claims of unlawful arrest and pretrial detention occurring before a detainee’s initial appearance fall under the Fourth Amendment. Accordingly, DeLade’s claim sounds in the Fourth Amendment but not in the Fourteenth Amendment.

* * *

DeLade’s claim of unlawful arrest and pretrial detention is not cognizable under the Due Process Clause of the Fourteenth Amendment. We will reverse the District Court’s denial of qualified immunity and remand this case with instructions to enter summary judgment in Cargan’s favor.

¹ The District Court’s decision to grant summary judgment to Cargan on DeLade’s Fourth Amendment claims is not at issue in this appeal.

CIVIL RIGHTS-COSMETOLOGY-CRIMINAL RECORD

Haveman v. Bureau of Professional & Occupational Affairs, 2020 Pa. Commw. LEXIS 669 (August 25, 2020) Covey, J.  Law for licensing of cosmetologists requires good moral character, which in this case deals with people with criminal background.  The barber law does not have the same requirement in it.  The law was not intended to be inconsistent with the barber license law.  The court agrees that it is absurd that even where there are identical criminal records, and similar services will be performed, the law requires good character only of cosmetology applicants and not barber applicants.  Therefore, the law was struck down as unconstitutional.

CIVIL RIGHTS-QUALIFIED IMMUNITY-DEADLY FORCE

James v. N.J. State Police (In re Gibbons), 957 F.3d 165 (3^rd Cir. April 21, 2020) Porter, C.J.  Qualified immunity protects government officials for being held liable for damages when their conduct does not violate a clearly established right.  The issue here is whether a New Jersey State Trooper is entitled to qualified immunity after using deadly force against a suspect who refused to drop his gun when the trooper ordered him to do so.  The court found that qualified immunity applied.  The issue is whether the officer’s conduct violated a clearly established statutory or constitutional right of which a reasonable person would have known.  Plaintiff must show that a right is clearly established because the violative nature of particular conduct was clearly established. An officer acting under similar circumstances was not said to have violated the Fourth Amendment.  This is not an obvious case.  The court compared the case to a Supreme Court of the United States decision and other Third Circuit cases.  Here, the trooper’s interaction with the suspect was over within seconds of his arrival on the scene.  He had mere seconds to assess the potential danger posed by the armed and non-compliant individual.  Other circuits have prohibited the use of deadly force against non-threatening suspects even when they are armed and suicidal.  The trooper did not violate a clearly established right.

CIVIL RIGHTS-NATIONALITY DISCRIMINATION-ANTI SEMITISM

Ali v. Woodbridge Township School District, 2020 U.S. App. LEXIS 12906 (3^rd Cir. April 22, 2020) Greenaway, Jr., C.J. A person of Egyptian extraction was non-tendered at a school district but was fired because of Holocaust denial and similar Anti-Semitic leanings.  The court examined hostile work environment claim and ultimately affirmed the district court.  The district court granted Summary Judgment in favor of the school district.  The Defendants acted quickly in disciplining the teacher at fault.  Ali did not present evidence of hostile work environment.  There was no First Amendment or defamation claim either.

CIVIL RIGHTS-IMMUNITY-PROSECUTORIAL FUNCTION-INVESTIGATIVE FUNCTIONS

Fogle v. Sokol, 957 F.3d 148 (3^rd Cir. April 20, 2020) Matey, C.J.  Plaintiff alleged incarceration was as a result of a conspiracy by law enforcement officials.  The Third Circuit ruled that only truly prosecutorial functions, not investigative functions, justify complete prosecution from suit.  The Complaint alleged actions that if taken as truthful outside the narrow doctrine of absolute immunity and survive a motion to dismiss.  Hence, the Court affirmed the district court’s Order denying the Motion to Dismiss based upon absolute immunity.  In this case, a jury found guilt as to rape charges, but the Plaintiff successfully vacated his conviction.  The Commonwealth declined to pursue new charges.  The County may not raise absolute immunity as a defense to a claim of municipal liability.  The municipality may not assert good faith of its officers or agents as a defense.  The doctrine of absolute immunity is narrow.  The prosecutor’s investigatory functions that do not relate to an advocate’s preparation for initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.  This detailed Opinion goes through the actions of each of the prosecutors.  The prosecutors are absolutely immune only for their alleged conduct in launching the prosecution and failing to include certain information in the Probable Cause Affidavit, withholding material exculpatory and impeachment evidence and making misrepresentations to the court.  They are not entitled to absolute immunity for alleged conduct in procuring statements, a confession or informant statements. 

CIVIL RIGHTS-BIVENS ACTION

Hernandez v. Mesa, 2020 U.S. LEXIS 1361 (February 25, 2020) Alito, J.  We are asked in this case to extend Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and create a damages remedy for a cross-border shooting. As we have made clear in many prior cases, however, the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new “context,” and a claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.

CIVIL RIGHTS-POLICE POWERS-EMERGENCY DECLARATION

Friends of Devito v. Wolf, 2020 Pa. LEXIS 1987 (April 13, 2020) Donohue, J.  A number of people challenged the Governor’s emergency proclamation.  The court swept aside all of the challenges.  The Supreme Court of Pennsylvania found that there was statutory jurisdiction for the emergency declaration to close businesses and that there were no constitutional infirmities.  The court basically predicated this on police powers.  The police powers test from the U.S. Supreme Court was relied upon.  The constitutional challenges addressed due process and that the orders were vague and capricious and that there was a lack of due process in enacting the order by the Governor.  The court dismissed that claim.  The court said that the emergency proclamation is a taking without compensation under the Fifth Amendment.  The court said that did not apply.  Interestingly enough, this was not a unanimous opinion but rather Justices Baer, Todd and Wecht joined Munley.  Chief Justice Saylor filed a concurring and dissenting opinion with Justices Dougherty and Mundy.       

CIVIL RIGHTS-POLICE MISCONDUCT-SUICIDE-AMERICANS WITH DISABILITIES ACT

Haberle v. Borough of Nazareth, 3^rd Cir. No. 18-3429 (August 29, 2019).  SCIRICA, Circuit Judge

Plaintiff Nicole Haberle’s long-time partner Timothy Nixon suffered from severe mental illness.  Nixon committed suicide during an encounter with the Borough of Nazareth Police Department, and Haberle sued the Borough.  She alleged that the Police Department’s failure to accommodate mentally disabled individuals constituted a violation of the Americans with Disabilities Act (ADA) and sought money damages.

Haberle’s challenge is before us for a second time.  The District Court had previously dismissed her Complaint, which raised the ADA claim and several constitutional claims.  We affirmed in part the District Court’s dismissal, but remanded with instructions to provide Haberle leave to amend her ADA complaint.  After Haberle filed an amended complaint, the District Court dismissed it for failure to allege intentional discrimination.  Because Haberle’s complaint raises a plausible claim that the Police Department was deliberately indifferent in failing to enact policies accommodating mental disability, we will reverse and remand.

To make out a claim for monetary damages under the ADA, Haberle must show deliberate indifference on the part of the Borough.  See S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013).  We have explained that deliberate indifference can be satisfied on a showing “the official acted or failed to act despite his knowledge of a substantial risk of serious harm.”  Beers-Capitol v. Whetzel, 256 F.3d 120, 131 (3d Cir. 2001)(quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)).  Haberle can establish such deliberate indifference in one of two ways:  “(i) showing that the [Department’s existing policies] failed to adequately respond to a pattern of past occurrences of injuries like the plaintiffs’, or (ii) showing that the risk of constitutionally cognizable harm was “so great and so obvious that the risk and failure of supervisory officials to respond will alone’ support finding [deliberate indifference].”  Id. At 136-37 (internal citations omitted); Haberle I, 885 F.3d at 181.  We remanded in Haberle I to provide Haberle the chance to plausibly allege either of those two conditions.

Allegations meet our directive to allege “facts indicating that the policies were drafted because of an awareness that the pre-existing policies were substantially likely to lead to a violation of citizens’ rights” Haberle I, 885 F.3d at 182.  They amount to a plausible claim the Department was deliberately indifferent by failing to adopt the policies Officer Lahovski proposed.

The past misconduct she invokes in her complaint did not have to result in the exact injury suffered by Nixon.  Her amended pleading accordingly meets the level of specificity we prescribed in Haberle I:  it alleges facts that support a history of encounters between disabled individuals and Department personnel that resulted in harm to those individuals, the Department’s awareness of those encounters and their risks, and its failure to adopt an offered policy to address them.

Because Haberle has plausibly alleged a violation of the ADA, we will reverse the District Court’s grant of the Borough’s motion to dismiss and remand for further proceedings consistent with this opinion.

CIVIL RIGHTS-MUNICIPAL LIABILITY

Forrest vs. Parry, et al., 3^rd Cir. Ct. of App. No. 16-4351, Greenaway, Jr., Circuit Judge.  In Beck vs. City of Pittsburgh, we were faced with what we deemed “a question of considerable interest in [a] period of alleged rising police brutality in major cities across the country” – what is sufficient evidence from which a jury can infer that a municipality adopted a custom of permitting its police officers to use excessive force?  89 F.3d 966, 967 (3d Cir. 1996).  More than two decades later, the interest and allegations persist, and, as it would appear, so does the question.  The evidence in this case demonstrates that the Internal Affairs Unit (“Internal Affairs”) of the since-disbanded Camden Police Department was woefully deficient in investigating civilian complaints about officer misconduct.  Citing Beck, the District Court found this to be sufficient.  However, the Court narrowed the case to only this evidence, and, as a result, did not consider its significance when combined with the non-Internal Affairs-related deficiencies in Camden’s supervision and training of its police officers.   This occurred in two phases: first, the District Court unilaterally divided Appellant, Alanda Forrest’s 42 U.S.C. §1983 municipal liability claim into three theories, labeled failure to supervise through Internal Affairs, failure to supervise, and failure to train, and, second, it then associated the evidence pertaining to the deficiencies in Internal Affairs to only the first theory.  Forrest argues that this resulted in errors at various stages.   At summary judgment, it resulted in a grant in favor of Camden on the failure to supervise and train theories.   On the parties’ motions in limine, the court improperly excluded evidence that was material to the §1983 theory that survived summary judgment, and effectively awarded summary judgment on the state law negligent supervision claim which it had previously deemed triable.   The jury instructions then confused the relevant law regarding the sole surviving claim.  We agree.  The artificial line, drawn by the District Court, between what were ostensibly theories with largely overlapping evidence resulted in erroneous rulings as to what was relevant, as well as instructions as to what law the jury was to apply.   We will therefore reverse those aspects of the District Court’s rulings that resulted in error, vacate part three of the jury verdict, and remand for further proceedings consistent with this opinion.  Although we have acknowledged the close relationship between policy-and-custom claims and failure-or-inadequacy claims, Barks vs. First Corr. Med, 766 F.3d 307, 316-17 (3d Cir. 2014), the avenues remain distinct:  a plaintiff alleging that a policy or custom led to his or her injuries must be referring to an unconstitutional policy or custom, and a plaintiff alleging failure-to-supervise, train or discipline must show that said failure amounts to deliberate indifference to the constitutional rights of those affected.  That is not to say that the plaintiffs cannot be one and the same, with claims sounding in both.  They can.  See id. At 798-99 (“[Plaintiff] has sufficiently alleged a custom of warrantless or nonconsensual searches… [and] has also adequately pled that the City failed to train, supervise, and discipline its officers.”)  At the outset, we emphasize that, properly considered, there are two ways in which Forrest’s §1983 claim against Camden may have proceeded: first, that Camden’s policy or custom of permitting excessive force, false arrest, or other constitutional violations led to Forrest’s injuries; and/or second, that Camden’s failure to supervise, discipline, or train its officers amounted to deliberate indifference to the rights of the individuals with whom those officers would come into contact.   As a result, the bare notion that a custom or policy of “essentially unsupervised” officers led to Forrest’s injuries has no basis in law.   See Pl.’s Resp. Br. 30, ECF No. 144.  We therefore consider his claim as sounding in the latter – that Camden’s failure to supervise, investigate, and train its officers amounted to deliberate indifference.  We will reverse the District Court’s grant of summary judgment on the failure to supervise theory, and, to the extent that it overlooked Forrest’s allegations regarding the training supervisors received, also its ruling on the failure to train theory.  We will therefore reverse the District Court’s decision granting summary judgment as to the §1983 claim that Camden’s failure to supervise its officers amounted to deliberate indifference to the rights of individuals with whom those officers would come into contact.  While we agree that Forrest’s claim regarding the adequacy of the training officers received fails on causation grounds, we conclude that a genuine dispute of material facts exists as to whether the need for more or different training for supervisors was obvious, and the failure to provide that was very likely to result in a violation of constitutional rights.   We will therefore reverse the District Court’s summary judgment ruling as to this iteration of Forrest’s §1983 claim.  This evidence clearly lends credence to the notion Camden was aware of related, concerning conduct by its officers and had not responded.  It was therefore an abuse of discretion to exclude this evidence merely because it was not causally related to the incident involving Forrest.  In contrast, the legal requirement for deliberate indifference is whether “(1) municipal policymakers know that employees will confront a particular situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights.”  Carter, 181 F.3d at 357 (emphasis added).  It is not narrowed to the particular employees in the case.  Notably, as the record makes clear, the Chief of Police had ultimate authority over Camden’s police department and Internal Affairs but is not properly considered within Internal Affairs.  We therefore conclude that the instructions provided to the jury regarding Forrest’s §1983 claim constituted error.   

CIVIL RIGHTS-TITLE VII-ADMINISTRATIVE FILING-JURISDICTION

Justice Ginsburg delivered the opinion of this Court. Title VII of the Civil Rights Act of 1964 proscribes discrimination in employment on the basis of race, color, religion, sex, or national origin. 78 Stat. 255, 42 U.S.C. §2000e-2(a)(1 ). The Act also prohibits retaliation against persons who asserts rights under the statute. §2000e-3(a). As a precondition to the commencement of a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (EEOC or Commission). §2000e- 5(e)(1 ), (f)(1). The question this case presents: Is Title VII charge-filing precondition to suit a “jurisdictional” requirement that can be raised at any stage of a proceeding; or is it a procedural prescription mandatory if timely raised, but subject to forfeiture if tardily asserted? We hold that Title Vll’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject­matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction). Kontrick vs Ryan, 540 U.S. 443, 445 (2004). Prerequisites to suit like Title Vll’s charge-filing instruction are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play. Fort Bend County, TX vs. Davis, 587 U.S._ (2019).

CIVIL RIGHTS-SEX DISCRIMINATION-SWIMMING POOLS RULES

Marie Curto, Diana Lusardi, Steve Lusardi v. A Country Place Condominium Association, Inc.2019 3^rd Cir. 2019 (April 22, 2019) Ambro, C.J.-Marie Curto wanted to swim with her family after work. Steve Lusardi wanted to swim with his wife, who had disabilities after a series of strokes and needed pool therapy to recover. But they lived a A Country Place, and its Condominium Association had adopted rules segregating use of the communal pool by sex. By 2016 over two-thirds of all swimming hours throughout the week were sex-segregated. After they were fined for violating this policy, Curto and the Lusardis sued, alleging violations of the federal Fair Housing Act (sometimes referred to as the “FHA”), 42 U.S.C. §§3601 et seq., and New Jersey state law. The District Court granted summary judgment to the Condominium Association because, in its words, “the gender-segregated schedule applies to men and women equally.” Curto v. A Country Place Condominium Assoc., 2018 WL 638749, at 4 (D.N.J. 2018). We disagree. On the facts before us, the pool schedule discriminates against women in violation of the FHA. We need not determine whether sex-segregated swimming hours necessarily violate the FHA, or whether a sufficiently limited and more even-handed schedule might be justifiable, because the schedule actually adopted by the Condominium Association is plainly unequal in its allotment of favorable swimming times. Thus, we reverse.

CIVIL RIGHTS-RETALIATION CLAIM

Komis v. Sec’y of the United States Dep’t of Labor, 2019 3^rd Cir. LEXIS 7282 (March 12, 2019)-Scirica, J.-Plaintiff Chrysoula J. Komis, a former federal employee, brought Title VII retaliation and retaliatory hostile work environment claims against the Secretary of Labor. The trial court granted judgment as a matter of law for the Secretary on the discrete retaliation claim, and Komis did not appeal. The retaliatory hostile work environment claim went before a jury, which returned a verdict for the Secretary. Komis appeals that verdict challenging the jury instructions. This appeal requires us to decide whether federal employees may bring retaliation claims under Title VII. We conclude they may. We are then asked to consider whether the same standard governs federal- and private-sector retaliation claims, and what standard in particular applies to a federal retaliatory hostile work environment claim in light of the Supreme Court’s decision in Burlington Northern & Santa FeRailway Co. v. White, 548 U.S. 53 (2006). We need not resolve these questions, however, because Komis cannot prevail under any potentially application standard. Accordingly, any error in the jury instructions was harmless. We will affirm.

CIVIL RIGHTS-AGE DISCRIMINATION IN EMPLOYMENT ACT-EMPLOYER-MUNICIPAL GOVERNMENT

Mount Lemmon Fire Dist. V. Guido, 2018 U.S. Supreme Ct. LEXIS 6639 (November 6, 2018) Ginsburg, J. Justice Ginsburg delivered the opinion of the Court. Faced with a budget shortfall, Mount Lemmon Fire District, a political subdivision in Arizona, laid off its two oldest full-time firefighters, John Guido (then 46) and Dennis Rankin (then 54). Guido and Rankin sued the Fire District, alleging that their termination violated the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. §621 et seq. The Fire District sought dismissal of the suit on the ground that the District was too small to qualify as an “employer” within the ADEA’s compass. The Act’s controlling definitional provision, 29 U.S.C. §639(b), reads: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees….The term also means (1) any agent of such a person, and (2) a State or political subdivision of State….” The question presented: Does the ADEA’s numerosity specification (20 or more employees), applicable to “a person engaged in an industry affecting commerce,” apply as well to state entities (including state political subdivisions)? We hold, in accord with the United States Court of Appeals for the Ninth Circuit, that §630(b)’s two-sentence delineation and the expression “also means” at the start of the second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation. “[T]wenty or more employees” is confining language, but the confinement is tied to §630(b)’s first sentence, and does not limit the ADEA’s governance of the employment practices of States and political subdivisions thereof.

CIVIL RIGHTS ACT-IMMUNITY-QUALIFIED IMMUNITY-SEARCH OF EMPLOYEE’S EMAILS

Walker v. Coffey, 3d 2018 LEXIS 26684 (September 20, 2018) Roth, J.  Appellant Carol Lee Walker commenced this action under 42 U.S.C. § 1983. She alleges that Appellees—a prosecutor and a special agent employed by the Pennsylvania Office of the Attorney General (OAG)—violated her Fourth Amendment right to be free from an unreasonable search when they used an invalid subpoena to induce Walker’s employer, Pennsylvania State University (Penn State), to produce her work emails. The District Court granted Appellees’ motion to dismiss, concluding that they were entitled to qualified immunity because Walker did not have a clearly established right to privacy in the content of her work emails. For the reasons stated below, we will affirm the dismissal of Walker’s § 1983 claim. We will vacate the District Court’s denial of Walker’s subsequent motion for leave to file a second amended complaint asserting claims under the Stored Communications Act (SCA), and remand for further proceedings consistent with this opinion. As such, we would be hard put to find that Walker enjoyed a clearly established right to privacy in the content of her work emails. But because this case involves Walker’s work emails, which were produced to law enforcement by her employer, Penn State, our inquiry does not end there. As explained below, those facts remove any doubt that Walker has failed to allege a violation of a clearly established constitutional right. We emphasize that nothing in this opinion should be taken as condoning the actions of Appellees in this case. On the contrary, we are dismayed by their reliance on an invalid subpoena to procure the documents that they sought. And we add a note of caution that, under slightly difference [sic] circumstances, similar actions might well lead us to a conclusion opposite from the one we reach today. But improper conduct alone does not result in a forfeiture of qualified immunity. Rather, the relevant question is whether, under the particular circumstances of this case, Appellees’ conduct violated Walker’s clearly established constitutional rights. Because we conclude that it did not. Appellees are entitled to qualified immunity. We will therefore affirm the District Court’s dismissal of Walker’s § 1983 claim. For the reasons stated at length above, we agree that Appellees are entitled to qualified immunity as to Walker’s § 1983 claim, and the District Court therefore did not err in denying reconsideration. At present, however, we have insufficient information to determine whether Walker could plead a valid claim under the SCA. We therefore conclude that, as to Walker’s attempt to assert a new claim under the SCA, the District Court abused its discretion by denying out of hand Walker’s motion for leave to file a second amended complaint. We will therefore vacate in part the District Court’s order of May 17, 2017, and remand this matter to the District Court to address the SCA issue in the first instance. 

CIVIL RIGHTS-IMMUNITY-QUALIFIED IMMUNITY-CLEARLY ESTABLISHED-SEXUAL ASSAULT

Kane v Barger, 2018 U.S. Court of Appeals, Third Cir., LEXIS 23575, (August 22, 2018) Fuentes, J.  On June 27, 2013, Brandy Kane went to the hospital and reported that she may have been the victim of a sexual assault. That night, Officer Shawn Barger of the Coraopolis Police Department went to the hospital to interview Kane regarding the possible assault. At that time, Kane says Barger told her to bring the clothes she wore during the alleged incident to him at the police station. The next day, Kane—accompanied by a friend—brought her clothes to the police station. While there, contrary to department policy, Barger met alone with Kane in a back room of the station. Then, also in violation of department policy, Barger used his personal cell phone to photograph intimate areas of Kane’s body. During this encounter, Barger touched Kane twice. First, rather than relying on Kane to do so, Barger pulled Kane’s shorts down to photograph a bruise on her right buttock. At this point, Kane says she “felt something touch her butt crack which caused her to jump.” Second, again without asking Kane to do so, Barger pulled Kane’s tank top down to expose a bruise on her upper chest. Kane says that, while photographing her, Barger repeatedly asked about her breasts, vagina, and buttocks. In this regard, Barger persistently inquired if Kane sustained injuries to her vagina. Despite Kane’s consistent denials, Barger’s relentless questioning led Kane to expose her vagina to him. After photographing Kane, Officer Barger failed to document the clothing evidence that Kane provided. Moreover, when Kane later reported Barger’s actions, he gave inconsistent accounts of his behavior. Indeed, while Barger initially denied photographing Kane at all—let alone with his cell phone—he later admitted he lied because he did not want his girlfriend to be jealous that he photographed Kane. After this background, Kane alleges that Barger violated her Fourteenth Amendment right to bodily integrity by—in the course of purportedly interviewing her about her alleged sexual assault—touching her and using his personal cell phone to photograph her intimate areas in violation of department policy. The District Court granted summary judgment in favor of Barger, finding that—even if Barger’s conduct was unlawful—he was still immune from suit under the exacting “clearly established” prong of our qualified immunity analysis. Viewing the record in light most favorable to Kane, which supports an inference that Barger acted for personal gratification rather than investigative ends, we hold that Barger’s conduct shocks the conscience and violated Kane’s right to bodily integrity. We further hold that the right at issue was clearly established at the time of Barger’s conduct. Accordingly, we will reverse and remand for further proceedings. 

STANDING-AMERICANS WITH DISABILITIES ACT

Mielo v Steak ‘N Shake Operations, Inc., 2018, U.S. Appeals, 3^rd Cir., LEXIS 20793 (July 26, 2018) Smith, J.  In this class action lawsuit, two disability rights advocates have sued Steak ‘N Shake under the Americans with Disabilities Act (“ADA”). Alleging they have personally experienced difficulty ambulating in their wheelchairs through two sloped parking facilities, these Plaintiffs seek to sue on behalf of all physically disabled individuals who may have experienced similar difficulties at Steak ‘N Shake restaurants throughout the country. The District Court certified Plaintiffs’ proposed class, and Steak ‘N Shake now appeals that certification decision. We are tasked with answering two questions: First, whether Plaintiffs have standing under Article III of the United States Constitution, and second, whether they have satisfied the requirements set out in Federal Rule of Civil Procedure 23(a). As to the first question, we conclude that Plaintiffs have standing to bring their claims in federal court. Although a mere procedural violation of the ADA does not qualify as an injury in fact under Article III, Plaintiffs allege to have personally experienced concrete injuries as a result of ADA violations on at least two occasions. Further, Plaintiffs have sufficiently alleged that these injuries were caused by unlawful corporate policies that can be redressed with injunctive relief. We withhold judgment as to whether those corporate policies are indeed unlawful, as our standing inquiry extends only so far as to permit us to ensure that Plaintiffs have sufficient pled as much. As to the second question before us, we conclude that Plaintiffs have failed to satisfy Rule 23(a). The extraordinarily broad class certified by the District Court runs afoul of at least two of Rule 23(a) requirements. In light of this conclusion, the District Court’s judgment will be reversed, and this matter will be remanded to the District Court to reconsider if a class should be certified.

CIVIL RIGHTS-DISCRIMINATION-SEX-VICARIOUS LIABILITY

Minarsky v. Susquehanna County, 2018 U.S. App. LEXIS 18189 (3d Cir. July 3, 2018) Rendell, C.J.  Thomas Yadlosky, the former Director of Susquehanna County’s Department of Veterans Affairs, made unwanted sexual advances toward his part-time secretary, Sheri Minarsky, for years. She never reported this conduct and explained in her deposition the reasons she did not do so. Although Yadlosky was warned twice to stop his inappropriate behavior, it was to no avail. The County ultimately terminated Yadlosky when the persistent nature of his behavior toward Minarsky came to light. Minarsky seeks to hold Yadlosky, her supervisor, liable for sexual harassment, and her former employer, Susquehanna County, vicariously liable for said harassment. At issue in this case are the two elements of the FaragherEllerth affirmative defense that Susquehanna County has raised. In granting summary judgment in favor of the County, the District Court held that the elements of this defense had been proven as a matter of law. We conclude that given the facts of this case, the availability of the defense regarding both the first element, whether the County took reasonable care to detect and eliminate the harassment, as well as the second element, whether Minarsky acted reasonably in not availing herself of the County’s antiharassment safeguards, should be decided by a jury. Accordingly, we will vacate the judgment of the District Court and remand for further proceedings.

Was the policy in place effective? Knowing of his behavior, and knowing that Minarsky worked alone with Yadlosky every Friday, should someone have ensured that she was not being victimized? Was his termination not so much a reflection of the policy’s effectiveness, but rather, did it evidence the County’s exasperation, much like the straw that broke the camel’s back? We do not answer these questions, but conclude that there exists enough of a dispute of material fact, and thus a jury should judge all of the facts as to whether the County “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765, and thereby determine whether the County satisfied the first element of Faragher-Ellerth.

In sum, Minarsky has produced several pieces of evidence of her fear that sounding the alarm on her harasser would aggravate her work environment or result in her termination. A jury could consider this evidence and find her reaction to be objectively reasonable. We therefore cannot uphold the District Court’s conclusion that Minarsky’s behavior was unreasonable as a matter of law.

Thus, we will vacate the District Court’s Order granting summary judgment in favor of the County and remand for further proceedings consistent with this opinion.

CIVIL RIGHTS-TITLE IX-TRANSGENDER STUDENT’S BATHROOM USE

Joel Doe v. Boyertown Area School District, No. 17-3113 (3^d Cir. June 18, 2018) McKee, C.J.  This appeal requires us to decide whether the District Court correctly refused to enjoin the defendant School District from allowing transgender students to use bathrooms and locker rooms that are consistent with the students’ gender identities as opposed to the sex they were determined to have at birth. The plaintiffs—a group of high school students who identify as being the same sex they were determined to have at birth (cisgender) —believe the policy violated their constitutional rights of bodily privacy, as well as Title IX, and Pennsylvania tort law. As we shall explain, we conclude that, under the circumstances here, the presence of transgender students in the locker and restrooms is no more offensive to constitutional or Pennsylvania-law privacy interests than the 4 presence of the other students who are not transgender. Nor does their presence infringe on the plaintiffs’ rights under Title IX. In an exceedingly thorough, thoughtful, and well-reasoned opinion, the District Court denied the requested injunction based upon its conclusion that the plaintiffs had not shown that they are likely to succeed on the merits and because they had not shown that they will be irreparably harmed absent the injunction. Although we amplify the District Court’s reasoning because of the interest in this issue, we affirm substantially for the reasons set forth in the District Court’s opinion.

CIVIL RIGHTS-ARREST

Haberle v. Officer Daniel Troxell, No. 16-2074 (3^rd Cir. March 20, 2018) Jordan, C.J.  Timothy Nixon was a troubled man. After stealing a firearm, he told his partner, Nicole Haberle, that he was going to commit suicide. When a police officer employed by the Borough of Nazareth learned of that threat, he did not wait for trained crisis support professionals but instead knocked on the door of the apartment where Nixon was located and announced his presence. Nixon immediately shot himself. Ms. Haberle has sued, on her own behalf and also as the administrator of Nixon’s estate, claiming that that police officer – Daniel Troxell – and other law enforcement officers, and the Borough, violated the Constitution as well as a variety of federal and state statutes. All of her claims were dismissed by the District Court, and she now appeals. Her primary argument is that Troxell unconstitutionally seized Nixon and that Nixon’s suicide was the foreseeable result of a danger that Troxell created. She also argues that the Borough violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101-213 (the “ADA”), by, among other things, failing to modify Borough policies, practices, and procedures to ensure that disabled individuals would have their needs met during interactions with the police. Although we recognize the grief borne by those who cared deeply for Mr. Nixon, we are nonetheless persuaded that the District Court was largely correct in its disposition of this case. But, because we conclude that Ms. Haberle should be given an opportunity to amend her complaint with respect to her ADA claim, we will affirm in part and vacate in part the District Court’s rulings, and remand for further proceedings.

Police are entitled to “knock and talk” with people in a residence, and doing so is not a seizure under the Fourth Amendment. Estate of Smith v. Marasco, 318 F.3d 497, 519 (3d Cir. 2003) (citing Rogers v. Pendleton, 249 F.3d 279, 289-90 (4th Cir. 2001)). In order to effectuate a seizure, there must be something more than “inoffensive contact between a member of the public and the police … .” United States v. Mendenhall, 446 U.S. 544, 555 (1980). There must be, for instance, “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, … the use of language or tone of voice indicating that compliance with the officer’s request might be compelled,” or some other communication that would convey to a reasonable person that compliance was not optional. Id. at 554. “[T]he subjective intention of the [officers] … is irrelevant except insofar as that may have been conveyed to the respondent.” Id. at 554 n.6. 

In this case, the District Court correctly concluded that there was no seizure. Whether or not well-advised, and despite his crudely expressed intentions, Troxell merely knocked on the door and announced his presence. That alone is not enough to violate the Fourth Amendment. There is no allegation that Troxell made intimidating remarks to Nixon or announced his presence in a threatening fashion. Nor is there any allegation that Nixon was aware of the warrant or of the other officers that were outside of the apartment complex. The complaint gives no reason to believe that Nixon felt he was “not free to leave,” id. at 554, or that he was unable to “decline the [officer’s] requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436 (1991). Because Nixon’s liberty was not restricted, there was no seizure. See Estate of Bennett v. Wainwright, 548 F.3d 155, 171 (1st Cir. 2008) (“Given the Estate’s failure to establish [the decedent’s] knowledge of the [police] perimeter, no reasonable factfinder could find that a person in [the decedent’s] circumstances would have thought that the perimeter restricted his liberty to leave the … residence.”). 

In any event, Troxell acted under color of a warrant, and Haberle does not argue that the warrant was invalid or was obtained under false pretenses or would have resulted in a false arrest. Even if a seizure had occurred, then, it would not have been unlawful. See Berg v. Cty. of Allegheny, 219 F.3d 261, 273 (3d Cir. 2000) (explaining that an officer is immune from suit after an arrest based on a warrant, if there is a reasonable belief that the warrant is valid).

For behavior by a government officer to shock the conscience, it must be more egregious than “negligently inflicted harm,” as mere negligence “is categorically beneath the threshold of constitutional due process.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Instead, “only the most egregious official conduct can be said to” meet that standard. Id. at 846. 

The required degree of culpability varies based on the “the circumstances of each case,” and, in particular, on the time pressure under “which the government actor[] had to respond … .” Phillips v. Cty. of Allegheny, 515 F.3d 224, 240 (3d Cir. 2008). Split-second decisions taking place in a “hyperpressurized environment,” usually do not shock the conscience unless they are done with “an intent to cause harm.” Sanford, 456 F.3d at 309. At the other end of the continuum, actions taken after time for “unhurried judgments” and careful deliberation may shock the conscience if done with deliberate indifference. Id. (quoting Lewis, 523 U.S. at 853). In the middle are actions taken under “hurried deliberation.” Id. at 310. Such situations involve decisions that need to be made “in a matter of hours or minutes.” Ziccardi v. City of Philadelphia, 288 F.3d 57, 65 (3d Cir. 2002). If that standard applies, then an officer’s actions may shock the conscience if they reveal a conscious disregard of “a great risk of serious harm rather than a substantial risk.” Sanford, 456 F.3d at 310. 

The decision Troxell made to ignore the advice of other officers and knock on the apartment door falls beneath the threshold of conscious disregard. 

The final issue on appeal involves Haberle’s claim that the Borough violated the ADA. She argues that she is entitled to money damages because the Borough “fail[ed] to make reasonable modifications to [its] policies, practices and procedures to ensure that [Nixon’s] needs as an individual with a disability would be met.” (App. at 87.) While we agree that, in general, the ADA applies to arrest situations, Haberle fails to state a claim for damages under that statute because she does not allege facts showing that any inaction of the Borough reflects deliberate indifference.

We have said that “[d]iscrimination under the ADA encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make reasonable accommodations for a plaintiff’s disabilities.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999). It follows, then, that police officers may violate the ADA when making an arrest by failing to provide reasonable accommodations for a qualified arrestee’s disability, thus subjecting him to discrimination. Given that catchall, we believe that the ADA can indeed apply to police conduct during an arrest.

Even though the ADA generally applies in the arrest context, Haberle’s claim for money damages against the Borough fails as a matter of law because she has not adequately pled that the Borough acted with deliberate indifference to the risk of an ADA violation. She seeks compensatory damages from the Borough under the ADA, but that remedy is not available absent proof of “intentional discrimination.” S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 261 (3d Cir. 2013) (“[C]laims for compensatory damages under … § 202 of the ADA also require a finding of intentional discrimination.”). To prove intentional discrimination, an ADA claimant must prove at least deliberate indifference, id. at 263, and to plead deliberate indifference, a claimant must allege “(1) knowledge that a federally protected right is substantially likely to be violated … and (2) failure to act despite that knowledge.” Id. at 265 (emphasis omitted). 

Haberle, however, fails to allege that the Borough was aware that its existing policies made it substantially likely that disabled individuals would be denied their federally protected rights under the ADA. She could have met that obligation in two different ways: first, by alleging facts suggesting that the existing policies caused a failure to “adequately respond to a pattern of past occurrences of injuries like the plaintiffs,’” or, second, by alleging facts indicating that she could prove “that the risk of … cognizable harm was ‘so great and so obvious that the risk and the failure … to respond will alone’ support finding” deliberate indifference. Beers-Capitol v. Whetzel, 256 F.3d 120, 136-37 (3d Cir. 2001) (quoting Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989) (in the context of §1983 suits by prison inmates)); see S.H. ex rel. Durrell, 729 F.3d at 263 n.23 (noting that the standard for proving deliberate indifference being adopted for the ADA context “is consistent with our standard of deliberate indifference in the context of § 1983 suits by prison inmates”).

Nevertheless, with respect to that defect, Haberle should be given an opportunity to amend her complaint, if possible, to salvage her ADA claim against the Borough, since this failure in her complaint is not one as to which we can say definitively that amendment would be futile.

For the foregoing reasons, we will affirm in part and vacate in part the District Court’s dismissal of Haberle’s claims, and remand for further proceedings consistent with this opinion.

CIVIL RIGHTS-RETALIATION-SPEECH

Bradley v. West Chester University, 2018 U.S. App. LEXIS 1965 (3^rd Cir. January 26, 2018) Brann, D.J.  While employed in an administrative position at West Chester University of Pennsylvania, Colleen Bradley shared her concerns about one of the school’s budget documents with her colleagues. Subsequently, she was informed by her supervisor that her employment contract would not be renewed. Arguing that her speech was protected by the First Amendment to the United States Constitution and that her termination was in retaliation for that speech, she sued the school, the Pennsylvania State System of Higher Education, her supervisor, and several other administrators.

The United States District Court for the Eastern District of Pennsylvania dismissed Ms. Bradley’s claim against West Chester and the State System, holding that those institutions were entitled to immunity under the Eleventh Amendment to the United States Constitution. After discovery, the District Court granted summary judgment in favor of Ms. Bradley’s supervisor, Mark Mixner, holding that, although Ms. Bradley’s speech was constitutionally protected, Mr. Mixner was entitled to qualified immunity.

We will affirm both of these rulings of the District Court. We agree with the District Court’s holding on Eleventh Amendment immunity, and therefore uphold its dismissal of the claims against West Chester and the State System. We disagree with the District Court’s holding on the protected status of Ms. Bradley’s speech, but because we hold that the speech was not constitutionally protected, we uphold its grant of summary judgment in favor of Mr. Mixner.

Defamation-Falsity-Claim Of Sexual Abuse

Rubin v. CBS Broad, Inc., 2017 Pa. Super. LEXIS 691 (September 8, 2017) Moulton, J. Howard Rubin appeals the October 20, 2015 order entered in the Philadelphia County Court of Common Pleas granting the motion of CBS Broadcasting Inc. d/b/a CBS 3 (“CBS”) for judgment on the pleadings. We reverse and remand for further proceedings. This appeal arises from a news report related to Rubin’s September 2014 termination from his job as a school police officer at Multi-Cultural Academy Charter School (“MACS”) in Philadelphia. The central issue on appeal is whether the substance of that report – that Rubin was fired from his job “over allegations of child sexual abuse” – was sufficiently close to the undisputed facts to warrant judgment on the pleadings for CBS. We conclude that it was not.

On May 8, 2015, Rubin filed an amended complaint alleging defamation and false light invasion of privacy claims against both CBS and May.

Whether Rubin can meet his burden of proving falsity turns on whether there exists a material difference between the report’s assertion that he was terminated “over allegations of child sexual abuse” and the actual basis for his termination.

The question remains, however, whether Rubin will be able to establish that that falsity was material. In other words, was the “gist” of the publication – that Rubin was fired because of allegations of sexual abuse – sufficiently different from what may prove to be the truth – that he was fired for violating a warning about “fraternizing with minors” – to have a materially different “effect upon a viewer”? ToDay’s Housing, 21 A.3d at 1215. While that difference may not be vast, we conclude that it is material. In the minds of viewers of the CBS broadcast, a termination based on an allegation of “the sexual abuse of an underage male student” surely could carry a greater sting than a termination for violating a personnel directive, even a directive about “fraternizing with minors.” Notably, for at least some viewers, the former could suggest that the school had investigated and credited the allegations of abuse, something the termination letter itself expressly disavows.

Based on the foregoing analysis, we also disagree with the trial court’s determination that “the facts could not reasonably support a finding of negligence or malice because [Rubin’s] personnel file corroborated Appellees’ communication.” 1925(a) Op. at 11. The pleadings and attached documents do not make clear either the nature or the source of the information CBS possessed prior to publication. Accordingly, as with the falsity issue, there is not enough information at this stage in the proceedings to say with confidence that Rubin will be unable to establish that CBS acted negligently or maliciously in publishing the report. If the as-yet-undetermined facts support Rubin’s claim that he was not terminated “over allegations of child sexual abuse,” then he may be able to establish CBS’s negligence or malice in publishing the report. Of course, even if he is able to prove falsity, discovery may establish that he is unable to prove that CBS acted with the requisite fault.

CIVIL RIGHTS-DRUG TESTING

Borrell v. Bloomsburg Univ., 2017 U.S. App. LEXIS 16616 (August 30, 2017) Hardiman, C.J.  This appeal—which raises questions involving the state action doctrine and the Due Process Clause of the Fourteenth Amendment—has important ramifications for private hospitals that partner with public universities. Angela Borrell, a student working at a private hospital through a public university’s clinical program, was dismissed for refusing to take a drug test in violation of hospital policy. She sued under 42 U.S.C. § 1983, claiming she was deprived of her property interest in the program without due process. Contrary to the judgment of the District Court, we hold that Defendants are entitled to judgment as a matter of law.  The primary issue on appeal is whether GMC, Richer, or Ficca are liable for denying Borrell due process when she was dismissed from the NAP. Because (A) GMC and Richer are not state actors with respect to Richer’s decision to dismiss Borrell and (B) Ficca is entitled to qualified immunity for her involvement in Borrell’s termination, we hold that no Defendant is liable to Borrell.

Notwithstanding his consultation with others, Richer made the decision to fire someone working at GMC due to her violation of a preexisting policy of the hospital, and he had the authority to do so based on his position there. “[T]he authority of state officials ․ was wholly unnecessary to effectuate Borrell’s dismissal from the NAP.” GMC Third-Step Br. 18. Accordingly, we must reverse the District Court’s holding that GMC and Richer were state actors.

Turning to the case against Ficca, we hold that she is entitled to qualified immunity. We do so because it was not clearly established that Ficca’s agreement with Richer’s decision, which she reasonably believed to be within his authority as an employee of GMC, violated Borrell’s constitutional rights.

In responding to Ficca’s qualified immunity argument, Borrell seems to miss the relevant question—would a reasonable official have known that her actions violated a clearly established right? Even if, as Borrell claims, Ficca should have known that Richer’s actions were disciplinary and not academic, and Borrell was thus entitled to more process from someone, this does not answer the question of whether Ficca was that person. Given all the factors discussed herein, and given her reasonable understanding that she could not have provided process for the clinical dismissal even if she thought it was necessary in the abstract, the District Court should have granted qualified immunity to Ficca.

For the reasons stated, we will reverse the District Court’s summary judgment and remand the case for entry of judgment in favor of Geisinger, Richer, and Ficca.

CIVIL RIGHTS-JOB DISCRIMINATION-RACE-TITLE VII-1983

Williams v. Pa. Human Rels. Comm’n, 2017 U.S. App. LEXIS 16618 (August 30, 2017) Fuentes, C.J.  Cheryl Williams, an African-American woman, claims that she was subjected to constant harassment at the Pennsylvania Human Relations Commission (the “Commission”) by her supervisors, Joseph Retort and Adam Stalczynski. As a result of this treatment, she alleges she faced a hostile work environment and was ultimately constructively discharged from her position as a Human Relations Representative. She then filed this action against the Commission under Title VII of the Civil Rights Act of 1964 (“Title VII”), 1 seeking damages for the loss of her job and the harm sustained to her physical and emotional health. She also included claims against her former supervisors, Retort and Stalczynski, claiming that they violated her federal rights under Title VII and the Americans with Disabilities Act (“ADA”)2 and they are therefore liable for damages under 42 U.S.C. § 1983.3 On defendants’ motion, the District Court granted summary judgment in favor of all defendants. In this case, we address for the first time whether violations of Title VII and the ADA may be brought through § 1983. In light of the comprehensive administrative scheme established by Title VII and the ADA, we conclude that these claims, standing alone, may not be asserted under § 1983. And because we also agree with the District Court that Plaintiff Cheryl Williams presents no triable issues of fact on her Title VII claims against the Commission, we will affirm.

CIVIL RIGHTS-1983-LIBERTY INTEREST-STIGMA CASE-ACQUITTAL OF CRIMINAL CHARGES

Otto v. Williams, 2017 U.S. App. LEXIS 13594 (July 27, 2017) Greenberg, C.J.  This appeal presents a central question: whether damages are available for stigma in a 42 U.S.C. § 1983 “stigma plus interest” claim when the plaintiffs, police officers with the Philadelphia Police Department, were acquitted of corruption charges at a criminal trial and successfully sought reinstatement to their positions with back pay. Because the officers’ criminal trial was a sufficient name-clearing hearing that provided them with a complete remedy for their reputational harm, we will affirm the District Court’s dismissal of those claims by an order dated June 6, 2016.

We recite the facts as alleged in the Second Amended Complaint, the operative complaint, that are relevant to this appeal. This case arises out of certain police officers’ terminations following their indictment by a federal grand jury on corruption charges on which they were subsequently acquitted at a jury trial. Appellants’ br. at 4. At this stage in the proceedings, the defendants left in this case are the City of Philadelphia, former City of Philadelphia Mayor Michael Nutter, and former City of Philadelphia Police Commissioner Charles Ramsey (the “city defendants”).

The officers filed their initial suits in state court in June 2015, but they subsequently were removed to federal court and consolidated into the present case. Id. at 45. In response to the suits, the Philadelphia Inquirer ran an editorial entitled “Laws Apply to the Police Too” seemingly objecting to the current suit and recounting that “witnesses accused the officers of acting like street thugs, roughing up suspects, ignoring due process, planting evidence, pocketing seized money, and lying in police reports. The squad’s superiors allegedly asked few questions because the unit was so productive.” Id. at 100-01. It repeated both the comments by Mayor Nutter that the officers were “sick scumbags” and those by Commissioner Ramsey that it was one of the worst cases of corruption he had heard. Id. at 101. The only claim left on appeal is a stigma-plus due process claim under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983.

We are mindful that we must not “equate a state defamation claim” with a stigmaplus claim. Kelly v. Borough of Sayreville, N.J., 107 F.3d 1073, 1078 (3d Cir. 1997). As we hold above, the officers’ criminal trial afforded them the due process remedy for the harm to their reputation and restored the harm by the “stigma.” The arbitration provided the officers with full reinstatement and back pay; their employment records were expunged of any reference to the alleged defamatory statements, and no employment decision could be based on the conduct for which the officers were acquitted, thus the arbitration fully remedied the interest in the “plus” part of the claim. While we still recognize the theoretical possibility that harm to someone’s reputation would not be recompensed fully by a name-clearing hearing, that is not the situation here. We decline to determine whether any other damages are available in a stigma-plus claim; suffice it to say that in this case the outcome of the criminal trial provided the officers with an adequate remedy to any reputational harm.

CIVIL RIGHTS-ARREST-PROBABLE CAUSE

The District Court erred by granting summary judgment on the basis of qualified immunity. Accordingly, the case was reversed.  A misrepresentation in the police officer’s affidavit concerning the physical description of the alleged criminal, standing alone, would not be sufficient to prevent a fact-finder from concluding that the reconstructed affidavit still established probable cause.  The court considered whether the misrepresentation and reckless omissions concerning the context of the affidavit as a whole or material are necessary to the finding of probable cause.  The court goes through what makes an affidavit improper.  Andrews v. Scuilli, 2017 U.S. App. LEXIS 6119 (3^rd Cir. April 10, 2017) Nygaard, C.J.

CIVIL RIGHTS-PRISONERS-MEDICAL NEEDS-DELIBERATE INDIFFERENCE

Pearson v. Prison Health Service, et al., No. 16-1140 (3^rd Cir. March 7, 2017) Fisher, C.J.  Antonio Pearson is a prisoner who suffered from two serious medical needs during his incarceration at Pennsylvania State Correctional Institution-Somerset (“SCI-Somerset”).  In 2009, he filed suit under 42 U.S.C. § 1983, claiming that various prison officials and an independent medical contractor were deliberately indifferent to those needs in violation of the Eighth Amendment.  In this appeal, Pearson challenges the District Court’s order granting summary judgment in favor of the five defendants remaining in this case.  For the reasons set forth, we reverse the District Court’s order, in part, insofar as it grants summary judgment in favor of Nurse David Rhodes.  We will, however, affirm the District Court’s order in all other respects.

CIVIL RIGHTS – 1983 – COLOR OF STATE LAW

P.R.B.A Corp. v. HMS Host Toll Roads, Inc., 808 F.3d 221 (3d Cir. 2015) – After learning of the brochures’ removal, Bare Exposure filed suit under 42 U.S.C. § 1983 alleging that Host’s actions violated Bare Exposure’s First and Fourteenth Amendment rights.  This case comes to us on a timely appeal from the District Court’s February 6, 2015, order granting Host’s motion for summary judgment.  This Court has jurisdiction under 28 U.S.C. § 1291 to review the District Court’s ruling on Bare Exposure’s § 1983 claim.  Lassiter v. City of Phila., 716 F.3d 53, 55 n. 1 (3d Cir. 2013).  This case requires us to determine whether a private company that operates service plazas on New Jersey highways acted, “under color of any statute, ordinance, regulation, custom, or usage, of any State,”  42 U.S.C. § 1983, when it removed brochures belonging to a “gentleman’s club” from the common areas of its service plazas.  We hold that it did not.  The absence of any direct involvement by the state authorities either in the decision to remove the brochures or in the general day-to-day operations of the service plazas compels this conclusion.  Accordingly, we will affirm the District Court’s grant of summary judgment.

CIVIL RIGHTS-PURSUIT OF DRIVER

Mullenix v. Luna, 136 S.Ct. 305 (2015).  In this case, police officer confronted a reportedly intoxicated fugitive, set unavoiding capture through high-speed vehicle flight, who twice during his flight had threatened to shoot police officers, and was moments away from encountering an officer on another road.  The relevant inquiry is whether existing precedent placed the conclusion that the police officer acted unreasonably in these circumstances “beyond debate.”  General principle that deadly force requires a sufficient threat hardly settled this matter.  This is not an excessive force case.  This court is considered excessive for its claims in connection with high-speed chases on only two occasions in recent years.  The court has never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone be a basis for denying qualified immunity.  Given the fugitive’s conduct, we cannot say that only someone “plainly incompetent” or who “knowingly violate(s) the law” would have perceived a sufficient threat and acted as the police officer did.  The court therefore granted the police officer’s petition for certiorari and reversed the Fifth Circuit’s determination that the police officer is not entitled to qualified immunity.

CIVIL RIGHTS-IMMUNITY-QUALIFIED IMMUNITY-CLEARLY ESTABLISHED RIGHT-SCHOOL SWIMMING ASPHYXIATION

This action stems from the death of a 15-year-old from a rare form of asphyxiation shortly after participation in a mandatory swimming class run by his physical education teacher.  The estate sued the school district, claiming a violation of civil rights.  The school district moved for summary judgment on the basis of qualified immunity, which the district court denied.  The conduct of the teacher and the school did not violate a clearly established constitutional right, and hence summary judgment should have been granted.  To equate intentional infliction of painful corporal punishment or the sexual molestation of a student, with a student-athlete’s unfortunate accident during wrestling practice or a rare instance of delay drowning after swim class is a bridge too far.  The case law does not inform a reasonable gym teacher that the failure to assess a student who briefly goes underwater for the possibility of dry drowning violated the student’s constitutional right to bodily integrity free from unwarranted intrusions by the state.  Spady v. Bethlehem Area School District, 800 F.3d 633 (3^rd Cir. 2015).