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Bradshaw v. Township of Middletown

December 4, 2003


The opinion of the court was delivered by: Cooper, District Judge



This matter comes before the Court on defendants' separate motions pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) to dismiss plaintiffs' First Amended Complaint ("Amended Complaint"). Plaintiffs Wayne Bradshaw ("Bradshaw"), Steven Dollinger ("Dollinger"), Michael Rubino ("Rubino"), Gerald Weimer ("Weimer"), Christine Weimer and Nina Rubino filed the Amended Complaint asserting various causes of action against the defendants. Defendants Township of Middletown ("Township"), Township of Middletown Police Department ("Police Department"), Robert Czech ("Czech"), John Pollinger ("Pollinger") and Joseph Braun ("Braun") now move to dismiss the Amended Complaint insofar as it asserts claims against them. Defendant Robert Morrell ("Morrell") now separately moves to dismiss the Amended Complaint insofar as it asserts claims against him. The motion of defendants Township, Police Department, Czech, Pollinger and Braun will be granted in part and denied in part. The motion of defendant Morrell will be granted.


I. Procedural History

Plaintiffs filed a complaint on October 29, 2002. (Docket entry no. 1.) This gargantuan submission contains a 46-page "COMPLAINT & JURY DEMAND" followed by 52 exhibits that are appended without certification. All told, the complaint is two inches thick. The Court sua sponte ordered plaintiffs to file an amended complaint in compliance with local rules. (11-8-02 Order.) Plaintiffs then filed the Amended Complaint on December 2, 2002. (Docket entry no. 4.)

Rule 8(a) requires plaintiffs to submit to the Court "a short and plain statement of the claim showing that the pleader is entitled to relief, and . . . a demand for judgment for the relief the pleader seeks." Fed.R.Civ.P. 8(a). While the Amended Complaint is but a pale shadow of the original voluminous pleading, plaintiffs still took no chances. Thus, they submitted a 41-page Amended Complaint describing in intricate detail their various claims. The "Facts" section of the Amended Complaint is itself 30 pages long, and sets out a confusing, nonchronological litany of seemingly-unconnected events reminiscent of a James Joyce novel. The effect of this presentation would be soporific but for the Court's puzzlement at how these factual allegations somehow legally relate to one another.

Section V of the Amended Complaint, however, is another matter altogether. Entitled "Causes of Action," this section conclusorily demands judgment against defendants on six Counts. Little if any reference is made to the preceding 30 pages of factual allegations, which the Court can only assume form the basis for the causes of action asserted. The unfortunate combination of detailed factual allegations and conclusory demands for judgment leaves the Court unable to determine which factual allegations pertain to which plaintiffs' causes of action against which defendants. The effect on defendants, whom the Rules call upon to respond to such an Amended Complaint, must be equally bewildering: They know they are being sued, yet cannot tell from the pleadings for what offenses, exactly, they are being haled into court.

Defendants separately moved to dismiss the Amended Complaint on September 5 and September 12, 2003. (Docket entry nos. 12 & 13.) Apparently emboldened by plaintiffs' overlong Amended Complaint, defendants Township, Police Department, Czech, Pollinger and Braun accompanied their motion with a 55-page supporting brief, in violation of local rules. See L.Civ.R. 7.2(b) ("Any brief . . . shall not exceed 40 ordinary typed or printed pages."). They also submitted an 11-page document entitled "Statement of Material Facts as to Which There Exists No Genuine Dispute," which is inappropriate on a motion to dismiss, where the Court must accept as true all facts alleged in the Amended Complaint. Plaintiffs opposed the separate motions to dismiss, and also violated Local Rule 7.2 with their 42-page brief.

The Court held oral argument on the separate motions in October 2003. Unlike the typical oral argument, this proceeding was less an adversarial contest of legal argument than a cooperative effort in which the parties and the Court attempted to determine what, exactly, the Amended Complaint alleged. Ultimately, this endeavor proved too much for those present, and the Court ordered further briefing. Specifically, plaintiffs were ordered to submit a chart reconstituting the Amended Complaint into a fashion the Court and defendants could understand. The Court ordered plaintiffs to explain which factual allegations pertained to (1) which plaintiffs; (2) which defendants; and (3) which causes of action. Plaintiffs provided this Rosetta Stone to enable the Court to decipher the Amended Complaint by letter of October 28, 2003 ("Plaintiffs' Letter"). *fn1

The end result of this tangled procedural history is as follows. The Amended Complaint asserts six causes of action against defendants. Count 1 of the Amended Complaint alleges that all defendants violated 42 U.S.C. § 1983 by unlawfully retaliating against plaintiffs Bradshaw, Dollinger, Rubino and Weimer for engaging in constitutionally protected speech. Count 2 of the Amended Complaint alleges that all defendants violated § 1983 by unlawfully retaliating against plaintiffs Bradshaw, Dollinger, Rubino and Weimer for engaging in constitutionally protected union activities. Count 3 of the Amended Complaint alleges that all defendants violated § 1983 by unlawfully retaliating against plaintiffs Bradshaw, Dollinger, Rubino and Weimer for engaging in constitutionally protected petitioning for redress. Count 4 of the Amended Complaint alternatively alleges that the Township violated § 1983 by failing to train its officials, thus making the Township responsible for the constitutional violations alleged in Counts 1-3. Count 5, which alleged "Constitutional Tort," has been voluntarily withdrawn by plaintiffs. (10-28-03 Pl. Letter at 1.) Count 6, which alleged "New Jersey Constitutional Tort," has also been voluntarily withdrawn by plaintiffs. (Id.) As Count 6 was the only Count alleging a cause of action for plaintiffs Christine Weimer and Nina Rubino (the spouses of plaintiffs Gerald Weimer and Michael Rubino, respectively), the Amended Complaint will be dismissed insofar as it alleges causes of action on their behalf.

II. Factual History

On a motion to dismiss we must accept as true all of plaintiffs' factual allegations. Because of the bizarre nature of this case, and the confusing pleading and briefing history, we will first describe the event that apparently precipitated this action, and then proceed to detail each individual plaintiff's allegations.

a. The Manure Incident

The remaining plaintiffs are all police officers in the Township. Bradshaw, Dollinger and Weimer are all officers, and Rubino is a Lieutenant. (Am. Compl. at ¶¶ 3-6.) Defendant Morrell is also a Lieutenant in the Police Department. (Id. at ¶ 14.) The Amended Complaint alleges that all four plaintiffs were sent identical packages by Morrell in April 2002. (Id. at ¶ 37.) Each package allegedly contained "a huge pile of horse manure," and a threatening letter from Morrell. (Id. at ¶¶ 33, 37.) Plaintiffs do not allege that Morrell sent these packages as part of his job as a police officer.

Plaintiffs allege they were extremely disturbed by these packages and the accompanying letters because they believed Morrell to be emotionally and mentally unstable, and they knew he had access to many weapons. (Id. at ¶¶ 58-59.) They were further anxious because they allege that in early 2002, police officers in two neighboring towns had gone on "shooting sprees." (Id. at ¶ 31.)

Plaintiffs spent the next few months endeavoring to convince the Township and the Police Department to take action against Morrell on their behalf. They entreated defendant Pollinger, the Chief of Police, to conduct an Internal Affairs investigation. (Id. at ¶ 51.) The union to which Bradshaw, Dollinger and Weimer belong, the Patrolmen's Benevolent Association ("PBA"), sent letters to the Township asking that immediate action be taken. (Id. at ¶ 53.) Plaintiffs consistently requested that they be updated on the status of the investigation of the manure incident. (Id. at ¶¶ 63, 80, 82, 88.)

Plaintiffs allege that instead of responding to their pleas, defendants began a pattern of retaliation against them. Plaintiffs also assert that the Township's "failure to take immediate action demonstrates that the Township is permitting or otherwise sanctioning or condoning, if not, aiding and abetting: all of the actions of Lt. Morrell." (Id. at ¶ 87.)

This was the saga of the manure, which forms part (but by no means all) of the background for plaintiffs' myriad claims. The specific bases for plaintiffs' causes of action, as explained to the Court by Plaintiffs' Letter, are set out below.

b. Bradshaw

Bradshaw first alleges an instance of protected conduct that occurred prior to the manure incident and for which he suffered retaliation. Plaintiffs allege there was a dispute in the Police Department as to whether officers should be sent to New York City to help in the days following the September 11, 2001 terrorist attacks. (Id. at ¶ 96(B)(1)-(23).) Pollinger did not think Middletown police officers were needed in New York after September 11 itself. (Id. at ¶ 96(B)(5).) The plaintiffs all believed help was needed on September 12 and 13. (Id. at ¶ 96(B)(13).) Bradshaw alleges he spoke out on television and in newspapers regarding the events of September 11. (Id. at ¶ 96(B)(24).) He alleges that Pollinger retaliated against him for this speech by commenting in a different newspaper article "that comments made by . . . Bradshaw . . . were a lie and that Bradshaw knew it was a lie." (Id. at ¶ 96(D)(5).)

Bradshaw also alleges he engaged in the following protected conduct in connection with the manure incident. First, he alleges he wrote to Pollinger to complain about an offensive cartoon relating to the manure incident, which had been posted in the police locker room. (Id. at ¶¶ 60-61.) Second, he alleges that letters were sent to the Township and Prosecutor's Office on his behalf regarding Morrell's behavior. (Id. at ¶¶ 53-54.) Third, he alleges he expressed concern that Morrell was still in charge of the SWAT Team following the manure incident. *fn2 (Id. at ¶ 70.) Fourth, he alleges he wrote Pollinger a letter detailing various violations of rules and regulations committed by Morrell. (Id. at ¶ 74.) Fifth, Bradshaw alleges he informed the Township that it should investigate the disclosure of a confidential portion of his own personnel report to the press. (Id. at ¶ 80.) Sixth, he alleges he wrote a memo to Pollinger asking that Rubino and Dollinger be transferred to another assignment so they would not come into contact with Morrell. (Id. at ¶ 96(D)(22).) Seventh, Bradshaw alleges he requested that an Internal Affairs investigation be conducted into Morrell's behavior. (Id. at ¶ 51.) *fn3

Bradshaw alleges he was retaliated against for his protected conduct in a variety of ways. First, he alleges he was not informed that Morrell was in fact not removed from the head of the SWAT team. (Id. at ¶¶ 66-70.) Second, he alleges that Pollinger wrote a memo "intimating that Detective Bradshaw may be subject to disciplinary action." (Id. at ¶ 63.) Third, even though a "No Contact" order was put into effect as between Morrell and the plaintiffs, Bradshaw alleges the Township took no action to enforce it. (Id. at ¶¶ 75-76.) Fourth, Bradshaw alleges Pollinger accused him of attempting to taint the Internal Affairs investigation into Morrell's conduct. (Id. at ¶ 64.) Fifth, he alleges someone unlawfully disclosed a portion of his personnel file to the press. (Id. at ¶¶ 80-81.) Sixth, Bradshaw alleges he was ordered "to avoid direct contact" with Morrell, while Morrell was only ordered "to attempt to avoid contact" with Bradshaw, "thus, appearing that [Bradshaw was] being held to a higher standard." (Id. at ¶ 89.) Seventh, Bradshaw alleges that on July 9, 2002, he was reprimanded for "conduct unbecoming a police officer." (Id. at ¶ 96(D)(6).) Eighth, he alleges that "a short time after the actions in sending the packages," Morrell was "transferred to supervise a patrol squad." (Id. at ¶ 92.) This change allegedly placed Morrell in much greater contact with Bradshaw. (Id.)

Bradshaw lastly alleges that on September 5, 2002 he engaged in protected conduct when he informed Pollinger that he and the other three officer plaintiffs planned on bringing this action. (Id. at ¶ 96(D)(27).) Bradshaw alleges that Pollinger retaliated against him for bringing the lawsuit by transferring him "out of the Detective's Bureau in one week." (Id. at ¶ 96(D)(29).) *fn4

c. Dollinger

Dollinger alleges three types of protected behavior in which he engaged before the manure incident, and for which he received retaliation. First, he alleges that in January 1999, in his capacity as a member of the Board of Trustees of the PBA, he "took a stand" and spoke out about Pollinger's scheme to change the uniforms of the Police Department and force the officers to pay half of the cost. *fn5 (Id. at ¶ 96(A)(1)-(2).) Second, he alleges he was a plaintiff in a lawsuit filed against the Police Department in 2000. *fn6 (Id. at ¶ 96(A)(6)-(8).) Third, he alleges that at an unspecified time he filed a grievance contesting a letter of reprimand issued to him. (Id. at ¶ 96(A)(17)-(18).)

Dollinger alleges he was retaliated against in a number of ways for his protected conduct. First, he alleges Pollinger "put a stop to the development of the canine program, which Dollinger had initiated." (Id. at ¶ 96(A)(3).) Second, he alleges Pollinger "ripped up a letter of recommendation he had written" for Dollinger. (Id. at ¶ 96(A)(4).) Third, he alleges Pollinger "sent a memo to Dollinger banning him from having any contact with his [police] dog while on duty." (Id. at ¶ 96(A)(10).) Fourth, he alleges he was improperly reprimanded for submitting a request for "comp time." (Id. at ¶ 96(A)(17).) Fifth, he alleges that "[w]ithin weeks of" his grievance, he was placed on rotating shifts, including a midnight shift. (Id. at ¶ 96(A)(18)-(19).) Sixth, he alleges that defendant Braun, a Deputy Chief of Police, "began kicking back reports and other correspondence drafted by Dollinger for minor spelling errors and other trivial mistakes." (Id. at ¶ 96(A)(20).) Seventh, he alleges Pollinger and Braun refused to allow him to serve on a special commission of the PBA for which he had been selected. (Id. at ¶ 96(A)(22)-(23).) Eighth, Dollinger alleges Braun refused to allow him to investigate a robbery. (Id. at ¶ 96(A)(24)-(25).) Ninth, he alleges Pollinger intimated that he might not promote Dollinger to Sergeant, even though Dollinger had been "listed as second on the Sergeant's test." (Id. at ¶ 96(A)(13)-(14).)

The Amended Complaint does not allege that Dollinger personally engaged in any protected conduct with regard to the manure incident. The Amended Complaint does allege that Pollinger learned that all of the plaintiffs intended to file a lawsuit on September 5, 2002. However, the Amended Complaint does not allege that Dollinger was retaliated against after this incident (though Plaintiffs' Letter does strangely suggest that Morrell's July 15, 2002 transfer to the patrol squad was retaliation for this event occurring two months later). (10-28-03 Pl. Letter, Dollinger Ex., at 4.) *fn7

d. Rubino

Rubino alleges one instance occurring before the manure incident in which he engaged in protected conduct and subsequently suffered retaliation. Rubino alleges that on September 13, 2001, he told Pollinger that he thought Township police officers should be sent to Manhattan to help in the aftermath of the September 11 terrorist attacks. This conversation allegedly took place in Pollinger's office, and grew heated as the two men disagreed over whether officers should be sent, or even be allowed to voluntarily go to help if they so desired. (Am. Compl. at ¶ 96(B)(9)-(22).)

Rubino alleges he was retaliated against for this protected speech in a number of ways. First, he alleges he was "relieved of his command and transferred to the Patrol Division as a shift commander" on September 28, 2001. (Id. at ¶ 96(D)(2).) Rubino alleges he was told he was transferred "because [he] `did not comply with the directives of a superior.'" (Id. at ¶ 96(D)(4).) Second, Rubino alleges that defendant Czech, the Township Administrator, "malign[ed] Rubino with his comments" to a newspaper about the transfer. (Id. at ¶ 96(D)(14).) Third, Rubino alleges that in January 2002 he was retaliated against "when nearly eight hundred dollars was taken out of his pay without any notice or hearing because a computer that had been ordered was missing." (Id. at ¶ 96(D)(8).) He alleges he was also charged with neglect of duty because of this incident. (Id. at ¶ 96(D)(9).) Fourth, he alleges that Pollinger gave him a negative evaluation in retaliation for his speaking out. (Id. at ¶ 96(D)(30)-(32).) Fifth, he alleges his requests to attend training courses and the Narcotics Officers Convention in 2002 were denied. (Id. at ¶ 96(D)(10)-(11).) Sixth, he alleges "his dues for National Narcotics Association were not paid wherein they had been paid by the Department for nearly fifteen years." (Id. at ¶ 96(D)(12).) *fn8

The Amended Complaint does not allege that Rubino personally engaged in any protected conduct with regard to the manure incident. While the Amended Complaint does allege that Pollinger learned that all of the plaintiffs intended to file a lawsuit on September 5, 2002, there is no allegation that Rubino was retaliated against as a result. *fn9

e. Weimer

Weimer alleges one instance of protected conduct arising out of the manure incident. He alleges that in May 2002 he "documented and reported [a] strange and disturbing incident" in which Morrell followed him around in a maroon Dodge pickup truck for no apparent reason. (Id. at ¶¶ 71-72.) Weimer allegedly made this report to Detective Lieutenant Michael Cerame ("Cerame"). (Id. at ¶ 72.) Weimer alleges that he was retaliated against for this conduct because "[t]he Township has done nothing to investigate or otherwise address this disturbing event by Lt. Morrell." (Id. at ¶ 73.) *fn10


A complaint may be dismissed pursuant to Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). On a motion to dismiss we must accept as true all of the factual allegations in the complaint, and must draw all reasonable inferences in favor of the plaintiffs. Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001). "Dismissal of claims [on a motion to dismiss] is appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim upon which relief may be granted." Jakomas v. McFalls, 229 F. Supp. 2d 412, 419 (W.D. Pa. 2002).

Plaintiffs allege causes of action under § 1983. It states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.

42 U.S.C. ยง 1983. "By its own terms, the statute does not create substantive rights. Instead, it only provides remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Brown v. Pa. Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 477 (3d Cir. 2003). Thus, to state a claim upon which relief can be granted plaintiffs must allege that defendants, "act[ing] under color of state law," deprived them of rights ...

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