which evidence it may consider in deciding whether a material factual dispute exists. The court generally must consider evidence set forth in five enumerated categories of materials, namely, "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any." Fed.R.Civ.P. 56(c). Evidence that can be considered by a court under Rule 56 is normally of the same quality of evidence that the fact finder may consider at trial. Thus, for a statement to be admissible, it must be made under oath and on personal knowledge, it must set forth facts which would be admissible in evidence, and it must show that the affiant is competent to testify to the matters stated therein. See Fed. R. Civ. P. 56(e).
Plaintiff asks us to consider transcripts of statements allegedly made by fellow firemen and tape recorded by plaintiff for purposes of this litigation. Plaintiff submits these taped statements as proof of comments allegedly made by Whelan which might show the Mayor's retaliatory motives in not promoting plaintiff. In one comment, allegedly made to another fire captain, the Mayor supposedly said "you firemen always want something and you go and support that asshole Fioriglio for Mayor against me and then you think I am going to give an appointment." The other two declarants supposedly overheard the Mayor say: "F--ck you, F--ck you, you fireman and f--ck that Fioriglio, he will never be Mayor" and "Kim would never be promoted as long as [I am] Mayor." However, none of the statements are sworn to or signed by the alleged speakers. They were not given under oath and neither plaintiff nor his attorney has submitted an affidavit attesting to the transcripts' validity. Thus, these statements fail to meet the requirements of Fed. R. Civ. P. 56(e), and we will not consider them for purposes of summary judgment.
C. Section 1983 Conspiracy Claim
Plaintiff's first claim against the defendants alleges a civil conspiracy to bypass plaintiff for a promotion to Battalion Chief in retaliation for his challenge to the Mayor in the 1994 Atlantic City mayoral campaign. He claims that this conspiracy deprived him of his constitutional rights in violation of 42 U.S.C. § 1983.
"Civil conspiracy is [merely] a vehicle by which § 1983 liability may be imputed to those who have not actually performed the act denying constitutional rights." PBA Local No. 38 v. Woodbridge Police Dep't, 832 F. Supp. 808, 832 n. 23 (D.N.J. 1993). As a result, "a § 1983 conspiracy claim is not actionable without an actual violation of § 1983." Id. Section 1983 applies to state actors or private actors acting under color of state law who deprive individuals of federally protected rights. See Daniels v. Williams, 474 U.S. 327, 330-32, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Hudson v. Palmer, 468 U.S. 517, 530, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); Gomez v. Toledo, 446 U.S. 635, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Sample v. Diecks, 885 F.2d 1099, 1108-10 (3d Cir. 1989). To make out a § 1983 conspiracy claim, the plaintiff must make specific factual allegations of a combination, agreement, or understanding among all or between any of the defendants to plot, plan, or conspire to carry out the alleged chain of events in order to deprive plaintiff of a federally protected right. See Darr v. Wolfe, 767 F.2d 79, 80 (3d Cir. 1985); Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974).
Although plaintiff's brief completely fails to address this issue, we must first determine whether plaintiff was deprived of a federally protected right. In essence, plaintiff's § 1983 claim is based upon the premise that plaintiff's First Amendment rights were violated when defendants conspired to retaliate against him for his mayoral campaign against Mayor Whelan.
It is well-established that political campaigning is protected speech under the First Amendment. "Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" McIntyre v. Ohio Electoral Comm'n, 514 U.S. 334, 346, 131 L. Ed. 2d 426, 115 S. Ct. 1511 (1995) (quoting Roth v. United States, 354 U.S. 476, 484, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957)). "There is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs, . . . of course including discussions of candidates. . . ." Mills v. Alabama, 384 U.S. 214, 218, 16 L. Ed. 2d 484, 86 S. Ct. 1434 (1966). As the Supreme Court has repeatedly noted, "'it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.'" McIntyre, 514 U.S. at 346 (quoting Buckley v. Valeo, 424 U.S. 1, 14-15, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976)). Thus, if plaintiff is able to prove that his participation in such protected speech was a substantial motivating factor for the alleged conspirators' actions, he will have demonstrated a violation of § 1983. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Green v. Philadelphia Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997); Feldman v. Philadelphia Housing Auth., 43 F.3d 823, 829 (3d Cir. 1994); Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993).
In order to survive summary judgment, plaintiff must demonstrate that there is a possibility that the jury can "infer from the circumstances (that the alleged conspirators) had a 'meeting of the minds' and thus reached an understanding" to achieve the conspiracy's objective of denying him a promotion in retaliation for his mayoral campaign. Adickes v. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970) (requirements for conspiracy under § 1983 between private actor and public officials). Plaintiff must prove with specificity the circumstances of the alleged conspiracy, such as those addressing the period of conspiracy, object of the conspiracy, and certain actions of the alleged conspirators taken to achieve that purpose. See Labalokie v. Capitol Area Intermediate Unit, 926 F. Supp. 503, 508 (M.D. Pa. 1996) (setting forth standard for making out a sufficient § 1983 conspiracy claim); Loftus v. Southeastern Pennsylvania Transp. Auth., 843 F. Supp. 981, 986 (E.D. Pa. 1994) (citing Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989) (applying this standard in the RICO context). When the sufficiency of civil rights allegations are challenged, the court must look beyond "conclusory allegations . . . to the factual scenario itself to examine whether the conduct alleged, viewed most favorably to plaintiffs, is reasonably susceptible to falling within the conclusions alleged." Freedman v. City of Allentown, 853 F.2d 1111, 1115 (3d Cir. 1988).
The crux of plaintiff's § 1983 conspiracy claim is that Whelan, Brenner and Gallagher conspired to deprive him of a promotion by changing the policy setting forth the factors by which promotional ties are broken. Thus, plaintiff attempts to show that the object of their alleged conspiracy was to deny him a promotion in retaliation for his failed mayoral campaign against Whelan. Plaintiff claims that Whelan, Brenner and Gallagher accomplished this goal, primarily during a "surreptitious meeting," by formulating Executive Order # 3.
Critical to plaintiff's case is his argument that his "vigorous" mayoral campaign so upset the Mayor that he acted in conspiracy with the other defendants to deprive him of his promotion to Battalion Chief. However, plaintiff's supposedly "vigorous" campaign, in reality, was fairly insignificant and was not taken seriously by the Mayor. Plaintiff received under 200 votes in the election. Furthermore, the Mayor has testified that plaintiff's challenge was not an issue for him.
Q: . . . . Generally, you were aware that he accused you of creating jobs for friends and political cronies, correct?
A: No, not -- Fioriglio wasn't on the radar screen, Mr. Perskie. I don't know how else to say that. I don't know all the names of all the candidates. I suspect, if you ask Governor Whitman or Mr. McGreevy or the libertarian candidate what some of the minor party candidates are specifically saying in their platform, I don't think they can answer that, and that was the position I was in, in 1994, with regard to Mr. Fioriglio.