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D'Orazio v. Washington Township

October 7, 2010

ERNEST M. D'ORAZIO, III, PLAINTIFF,
v.
WASHINGTON TOWNSHIP, STEPHEN ROLANDO, JASON PLAYER, RICHARD SUMEK, RAFAEL MUNIZ, DENNIS SIMS, AND PAUL MORIARTY, DEFENDANTS.



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

OPINION

Plaintiff, Ernest M. D'Orazio, III, brings this suit against the Defendants arising out of his employment as a Special Law Enforcement Officer for the Washington Township Police Department. Plaintiff claims that his failure to be promoted to full-time law enforcement officer, the investigation into his alleged revealing of confidential information and his dismissal from the Washington Township Police Department were discriminatory and violated his civil rights. The Defendants are Washington Township, the former mayor of Washington Township Paul Moriarty, the former chief of the Washington Township Police Department Rafael Muniz, the then-chief of the Washington Township Police Department, and Stephen Rolando, Jason Player, Richard Sumek and Denis Sims, each officers with the Washington Township Police Department.

Plaintiff asserts claims under 42 U.S.C. § 1983 of violations of his First Amendment and Fourth Amendment rights. Plaintiff also asserts a civil conspiracy claim. The Defendants have moved for summary judgment on all claims. The Court will grant summary judgment in part and deny summary judgment in part.*fn1

I.

Plaintiff applied for a position as a Special Law Enforcement Officer ("SLEO") for the Washington Township Police Department ("WTPD") in 2004. In July 2005, Plaintiff was appointed as an SLEO by resolution of the Washington Township town council ("Council") and in August 2005 was approved as a recruit for the Gloucester County Police Academy ("Academy"). (Defendants' Statement of Facts in Support of Motion for Summary Judgment (SOF) ¶ 54) Plaintiff attended the Academy from August 2005 through December 2005. (Id. ¶ 60) After completing his training at the Academy, Plaintiff began his field training as an SLEO and was assigned to solo patrol duty in April 2006. (Id. ¶¶ 73, 80) Prior to Plaintiff's completion of field training, Plaintiff began to seek appointment as a full-time law enforcement officer with the WTPD. (Id. ¶ 81)

In April 2006, two SLEOs were promoted to full-time law enforcement officer with the WTPD, but Plaintiff was not. (Id. ¶ 83) In August 2006, two graduates of the Academy were appointed as full-time law enforcement officers with the WTPD. (Id. ¶ 140) Neither of the August 2006 appointees had served as an SLEO or previously worked with the WTPD.

On December 8, 2006, the WTPD and other local law enforcement agencies conducted an undercover narcotics operation at a local bar in Washington Township.*fn2 (Id. ¶ 152) One of the men arrested as part of the operation agreed to serve as a confidential informant ("CI #1") for the WTPD as part of the continuing narcotics investigation. (Id. ¶ 153) On December 11, 2006, Defendant Player and another member of the WTPD engaged in an "overhear"*fn3 on a call between CI #1 and Michael Dove, an alleged narcotics dealer who was subject to an ongoing investigation by the WTPD. (Id. ¶ 156) On that overhear, Michael Dove allegedly told CI #1 that Plaintiff had revealed information to him about the arrests made on December 8, and that Plaintiff had warned Dove to limit his illegal activities as the narcotics investigation was ongoing. (Id. ¶¶ 163-164). This information was the basis for the investigation into Plaintiff.

This information was passed from Defendant Player to his supervisor Defendant Sumek, (Id. ¶ 167), who passed it along to Defendant Rolando, an internal affairs officer of the WTPD. (Id. ¶ 168) Eventually Defendant Muniz was notified, and he requested that an internal affairs investigation begin immediately. (Id. ¶ 171) Defendant Muniz also requested that the Gloucester County Prosecutor's Office ("GCPO") investigate any allegations against Plaintiff. (Id. ¶ 174)

On December 18, 2007, Defendant Player attempted to record an overhear between CI #1 and Michael Dove, but due to technical problems the recording was unusable and the content of the conversation is unknown. (Id. ¶ 186-187)

On December 20, 2006, another confidential informant ("CI #2") allegedly spoke to Defendant Player and told him that he was in fear for his own safety and the safety of his family because certain of Plaintiff's acquaintances were making threats towards him. (Id. ¶ 191-193)

That same day, Defendant Rolando advised Plaintiff that the WTPD and the GCPO were investigating Plaintiff. Rolando and Plaintiff went to the offices of the GCPO, where he was interviewed by Rolando and another member of the WTPD. (Id. ¶¶ 198-200) Following completion of the interview, it was decided that criminal charges would not be brought against Plaintiff. (Id. ¶ 211)

The WTPD decided to continue to pursue its administrative investigation. (Id. ¶¶ 213-214) Defendant Rolando interviewed Plaintiff at the WTPD police station. (Id.) Plaintiff's father was present during the administrative interview at Plaintiff's request. (Id. ¶ 216)

Defendant Muniz suspended Plaintiff from the WTPD on December 21, 2006. (Id. ¶ 227)

Defendant Rolando issued his internal affairs investigation report on January 8, 2007. (Id. ¶ 249) The report referenced, amongst other things, the December 11 overhear, CI #2's discussions with Defendant Player and video surveillance evidence that allegedly showed Plaintiff reviewing an arrest log. Defendant Rolando "concluded that evidence existed to support the conclusion that Plaintiff released police information to civilians, which thwarted a narcotics investigation." (Id. ¶ 249)

Based on Defendant Rolando's report, on January 23, 2007, Defendant Muniz recommended that Plaintiff be dismissed from the WTPD with no recommendation of reappointment. (Id. ¶ 253)

An administrative inquiry on Defendant Muniz's recommendation commenced on April 18, 2007. An administrative judge was retained to administer the inquiry. (Id. ¶ 254) The administrative judge's report did not sustain any of the charges against Plaintiff, and held that Plaintiff was entitled to be paid for the wages he lost after his dismissal until the end of his appointment.*fn4 (Id. ¶¶ 285-286) The report was sent to the Council for approval on October 23, 2007. (Id. ¶ 314) No action was taken on the report until March 11, 2009, at which time the report was rejected. Three Council members voted for rejection of the report, no Council members voted to accept and two Council members abstained. (Id. ¶ 332)

Plaintiff filed his original complaint on October 23, 2007, and an amended complaint on August 24, 2009. Plaintiff brings multiple claims under 42 U.S.C. § 1983: for violation of his right to political association against each of Defendants Rolando, Player, Sumek, Muniz, Sims and Moriarty, for violation of his right to free speech against each of Defendants Muniz and Moriarty, for violation of his right to be free from unreasonable seizure against each of Defendants Muniz and Rolando, and for ratification of constitutional violations against Defendant Washington Township. Plaintiff also brings a common law civil conspiracy claim against Defendants Rolando, Player, Sumek, Muniz, Sims and Moriarty. Defendants filed their joint motion for summary judgment on all claims on March 15, 2010.

II.

"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex, 477 U.S. at 323). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

III.

The Court first addresses the constitutional claims and then the common law conspiracy claim.

Section 1983 provides:

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. § 1983.

As stated previously, Plaintiff asserts that his First and Fourth Amendment rights were violated. Specifically, Plaintiff asserts two First Amendment claims: (1) political association discrimination and (2) retaliation based on Plaintiff's First Amendment protected speech. Plaintiff also claims that during the investigation into Plaintiff's involvement in the thwarted narcotics case, he was unreasonably seized in violation of the Fourth Amendment. Lastly, ...


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