Judge tosses most of ex-Upland chief’s suit against the borough
MEDIA COURTHOUSE » A federal judge has dismissed the majority of a civil rights complaint filed against Upland Borough and two of its officials earlier this year by former borough Police Chief Nelson Ocasio.
The suit, filed in the U.S. District Court for the Eastern District of Pennsylvania, alleged conspiracy, civil rights and Whistleblower Law violations against Upland, Mayor Michael Ciach and Borough Council President Christine Peterson.
Under the Aug. 3 opinion handed down by District Judge J. Curtis Joyner, only a claim for deprivation of due process under the Fourteenth Amendment and a related conspiracy claim will move forward.
Ocasio, who replaced John Easton as police chief in January 2013, claims he was made aware in February 2016 that his signature had been forged on two of Officer Michael Irey’s timecards for Aug. 3-16, 2015, while the officer was on vacation.
The complaint indicates Peterson, who was the police department’s administrative assistant, was the only person aside from Ocasio who had access to the timecards.
Ocasio charged Peterson with forgery, theft and tampering with government records on Feb. 22, 2016, but Delaware County District Attorney Jack Whelan withdrew the charges that same day for lack of evidence. Ocasio was also suspended without pay Feb. 22 and fired the following day in a meeting with Ciach and Peterson, according to the complaint.
Ocasio claimed the suspension and firing were in retaliation for Peterson’s arrest and argued that reporting Peterson’s alleged illegal conduct was constitutionally protected speech.
Ocasio also alleged violations of his due process rights under the Fourteenth Amendment that should have afforded him the ability to have a hearing prior to his dismissal.
The complaint additionally claims Ocasio was the target of “antagonistic and harassing conduct,” including the use of ethnic slurs by Peterson – an allegation she has denied.
The defendants made five arguments for dismissal in May, four of which went uncontested. The motion to dismiss did not attack the due process claim, according to the opinion.
Ocasio stipulated and agreed with the defendants that the Whistleblower Law and First Amendment retaliation claims should be dismissed, which they were, with prejudice.
The defendants also argued that Ocasio failed to set forth a viable “Monell claim” against the borough, Ciach and Peterson in their official capacities. A Monell claim assigns liability to a municipality for civil rights violations only when it does so by acting on a policy adopted and promulgated by that municipality’ officials.
Ocasio did not respond to that argument, which the judge accepted as uncontested. The practical effect was that all claims against the borough, Ciach and Peterson in their official capacities are now dismissed with prejudice.
Ocasio did dispute that the complaint failed to allege a viable conspiracy claim, however.
The complaint alleges three distinct conspiracy claims tied to the other allegations, according to the opinion: That the defendants conspired to deprive Ocasio of his First and Fourteenth Amendment rights to free speech and due process, and conspired to violate Pennsylvania’s Whistleblower Law.
Judge Joyner notes a conspiracy claim cannot survive on its own, so the First Amendment conspiracy claim was dismissed outright. The Whistleblower Law conspiracy claim was also dismissed because, like the Whistleblower Law claim itself, the filing was time-barred by a 180-day statute of limitations.
The defendants also argued that Ocasio failed to plead enough facts to survive dismissal of the conspiracy to violate his due process rights, but the judge disagreed.
The opinion indicates that courts should be mindful that direct evidence of conspiracies is rarely available and must usually be inferred from the circumstances.
The complaint claims that Ciach and Peterson informed Ocasio of his termination together on Feb. 23, 2016. Joyner found this allegation “easily permits” the inference that Ciach and Peterson had agreed by that point to fire Ocasio, and it is his firing that is at the heart of the underlying due process claim.
As such, the judge allowed the Fourteenth Amendment conspiracy claim to move forward against Ciach and Peterson in their individual capacities only, along with the due process claim.
Joyner additionally denied a motion from the defendants to strike portions of the complaint alleging ethnic slurs, which he found could be material to the Fourteenth Amendment claim and Ocasio’s demand for punitive damages.