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, 3rd 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., 3rd 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 3rd 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 3rd 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, 3rd 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 (3d 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.
Haberle v. Officer Daniel Troxell, No. 16-2074 (3rd 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.
Bradley v. West Chester University, 2018 U.S. App. LEXIS 1965 (3rd 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 (3rd Cir. April 10, 2017) Nygaard, C.J.
CIVIL RIGHTS-PRISONERS-MEDICAL NEEDS-DELIBERATE INDIFFERENCE
Pearson v. Prison Health Service, et al., No. 16-1140 (3rd 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 (3rd Cir. 2015).