UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JULIAN ADAMS, : CIVIL NO. 4:07-CV-1103

:

Plaintiff : (Judge Jones)

:

v. : (Magistrate Judge Smyser)

:

CHARLES KELLAR and :

CITY OF HARRISBURG, :

:

Defendants :

REPORT AND RECOMMENDATION

Background.

This Report and Recommendation addresses the motion of

the defendants for summary judgment. 

The case was initiated by a complaint filed on June 21,

2007. (Doc. 1). An amended complaint was filed on August 23,

2007. (Doc. 7). 

By Order of May 5, 2008, a motion to dismiss the

amended complaint was denied in part and granted in part. A

punitive damages claims was dismissed as to defendant City of

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Harrisburg. Procedural due process claims of the plaintiff

were dismissed. The motion was otherwise denied.

An answer to the amended complaint was filed on

September 11, 2008. (Doc. 32).

The plaintiff is Julian Adams, a former Officer of the

Harrisburg Police Department. The defendants are Charles

Kellar, who at all material times was the Chief of the

Harrisburg Bureau of Police , and the City of Harrisburg. 1

The plaintiff was terminated from his employment by

defendant Kellar. He claims that his termination, which

occurred after he had filed his initial complaint in this case,

was in retaliation for his act of bringing this civil action,

in violation of his First Amendment rights. He also claims

that his termination was in retaliation against him for having

testified in an arbitration hearing involving disciplinary

action against a fellow police officer. He also claims that

1. He is no longer the Chief of Police.

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his right to equal protection of the laws was violated and that

he, as an African American, was denied equal protection on the

basis of his race in that he was terminated under facts and

circumstances that were materially similar to facts and

circumstances under which other non-minority police officers

were not terminated. He claims that there is municipal

liability on the part of the City of Harrisburg as well. The

plaintiff’s claim is brought under 42 U.S.C. § 1983.

The Amended Complaint. 

The amended complaint alleges that the plaintiff had

been a patrol officer with the Harrisburg Bureau of Police

since August of 1989, and that he had a history of exemplary

performance and an unremarkable disciplinary history. In

October 2003, he was on patrol with Harrisburg Police Corporal

Lydell Muldrow when Muldrow became involved in an altercation

with a citizen of Harrisburg. The plaintiff and Officer

Muldrow charged the citizen (Blackwell) with aggravated

assault, resisting arrest, and disorderly conduct. The

plaintiff testified at the Blackwell preliminary hearing that

he had not seen Muldrow hit Blackwell. An internal affairs

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investigation was conducted concerning the incident, and

Muldrow ultimately received a disciplinary suspension as a

result of his conduct during the incident. Blackwell

subsequently filed a federal civil rights complaint against

Muldrow, in which he also named the plaintiff as a defendant,

alleging an excessive use of force and related civil rights

violations. That case terminated pursuant to a settlement. 

The amended complaint alleges that the testimony that

the plaintiff would have given in the federal civil action

proceeding would have been unfavorable to the interests of the

Harrisburg Bureau of Police. That case was settled at an early

stage, prior to discovery depositions.

The amended complaint alleges that defendant Kellar had

a vendetta against Corporal Muldrow and the plaintiff. It

alleges that “Kellar’s hatred is partly based upon racism. The

plaintiff is African American. Muldrow is African American.” 

Corporal Muldrow filed a union grievance arising out of his

suspension. An arbitration hearing was held on his grievance. 

The amended complaint alleges that the defendants initially

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believed that the plaintiff would provide testimony that was

favorable to the interests of the Police Bureau in defense

against Muldrow’s grievance, and that accordingly the plaintiff

met with defendant Kellar and the Police Bureau’s attorney to

discuss his testimony. Defendant Kellar and the Police

Bureau’s attorney then determined that the plaintiff’s

testimony would not be favorable to their interests, and they

informed the plaintiff that he should not testify at Muldrow’s

arbitration hearing and that he could face charges if he were

to testify. Nevertheless, the plaintiff was summoned by

defendants Kellar and City of Harrisburg to testify during the

September 2006 Muldrow arbitration hearing. The plaintiff

appeared and testified truthfully at the proceeding. 

Thereafter, the amended complaint alleges, the

plaintiff became the subject of a disciplinary investigation

concerning the testimony that he had given at the arbitration

proceeding and at the Blackwell preliminary hearing. He was

stripped of most of his duties, was taken off patrol, and was

assigned to a report-writing function. The amended complaint

alleges that the testimony of the plaintiff was unfavorable to

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the interests of the City of Harrisburg and its Police

Department, and to the “hidden agenda of defendant Kellar” and

that consequently the defendants initiated disciplinary action

in retaliation against the plaintiff for his testimony. In

April of 2007, the plaintiff was told by the defendants that he

was going to be disciplined for conduct unbecoming a police

officer. He was told that, if he would not accept a two year

suspension and a successive retirement, he would be terminated. 

He was presented with a draft agreement to sign. He was still

considering whether to sign the agreement when he brought this

civil action. As soon as he filed the original complaint in

this case, and while he was still considering the draft

agreement, defendant Kellar told him that he was being

discharged immediately because he had filed this civil action. 

The amended complaint alleges that other non-minority

Harrisburg Bureau of Police officers have committed infractions

far more serious than any infractions committed by the

plaintiff and that non-minority police officers have not been

treated as harshly as the plaintiff.

 

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In the Answer (Doc. 32), the defendants admit that in

October of 2003 the plaintiff was on patrol with Corporal

Muldrow when Muldrow became involved in an altercation with a

citizen (Blackwell), that the plaintiff brought charges against

Blackwell, that an internal affairs investigation was conducted

concerning the incident, that Muldrow received a disciplinary

suspension, that the citizen filed a federal civil rights

action against Muldrow, the plaintiff and other defendants in

which excessive force was alleged, that Muldrow filed a union

grievance challenging his suspension, that an arbitration

hearing was held, that the plaintiff met with the City attorney

in advance of the arbitration hearing to discuss his potential

testimony, that the plaintiff was told that he would not be

called by the City as a witness based upon earlier testimony of

the plaintiff concerning the incident, that counsel for Muldrow

called the plaintiff as a witness at the hearing, that an

internal affairs investigation was thereafter initiated of

conflicting testimony given by the plaintiff at hearings

involving the same subject matter, that the plaintiff was told

that he was to be terminated (for conduct unbecoming an

officer), and that he was offered an accommodation in lieu of

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termination in the form of a two year suspension, after which

he would resign, to preserve his pension rights.

The pending defendants’ motion (Doc. 94) for summary

judgment was filed on April 30, 2010. The defendants’

supporting brief, LR 56.1 statement and exhibits are filed and

docketed as a part of Doc. 94. The plaintiff’s brief (Doc.

104), LR 56.1 statement (Doc. 103) and exhibits (Docs. 103, 105

& 112) were filed on June 21, 2010. The defendants filed a

reply brief (Doc. 111) on July 7, 2010. 

Summary Judgment Standard. 

Summary judgment is appropriate if the "pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law." 

Fed.R.Civ.P. 56(c). “The moving party bears the initial burden

of demonstrating the absence of any genuine issue of material

fact, though the non-moving party must make a showing

sufficient to establish the existence of each element of his

case on which he will bear the burden of proof at trial.” Huang

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v. BP Amoco Corp., 271 F.3d 560, 564 (3d Cir. 2001); Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

“A factual dispute is material if it bears on an

essential element of the plaintiff’s claim, and is genuine if a

reasonable jury could find in favor of the nonmoving party.” 

Natale v. Camden County Correctional Facility, 318 F.3d 575,

580 (3d Cir. 2003). In determining whether an issue of

material fact exists, the court must consider all evidence in

the light most favorable to the non-moving party. White v.

Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). 

“Our function at the summary judgment stage is not to weigh the

evidence and determine the truth of the matter, but to

determine whether there is a genuine issue for trial.” Federal

Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431,

443 (3d Cir. 2003). 

Undisputed Facts.

On the basis of our analysis and assimilation of the

moving parties’ (defendants’) Statement of Uncontested Material

Facts (Doc. 94-5) and the plaintiff’s Counterstatement of

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Disputed Material Facts (Doc. 103), the following facts are not

in genuine dispute for purposes of the defendants’ motion for

summary judgment. The record references supplied by the

parties in the LR 56.1 statements are omitted. 

At all times material hereto, Charles Kellar served as

the Chief of Police for the City of Harrisburg. At all times

material hereto, the plaintiff, an African American male, was

employed as a police officer for the City of Harrisburg. The

plaintiff was hired as a patrol officer for the City of

Harrisburg Police Department in August of 1989. 

On October 24, 2003, the plaintiff and his former

partner, Corporal Lydell Muldrow, arrested James Blackwell on

outstanding arrest warrants. As the plaintiff and Corporal

Muldrow attempted to effect the arrest of Mr. Blackwell, the

plaintiff observed Muldrow punch Blackwell two or three times. 

Blackwell was arrested. He was charged with several

criminal violations arising from the arrest incident including

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but not limited to a charge of assaulting the arresting

officers.

The plaintiff testified at Blackwell's preliminary

hearing in January, 2004.

At the preliminary hearing the plaintiff answered

several questions under oath as follows:

Q. Did you strike Mr. Blackwell at all that

day?

A. No I didn't.

Q. Did anyone else that you saw strike Mr.

Blackwell?

A. I didn't see anyone else strike him.

***

Q. At the point in time from when you cuffed

him from behind with Officer Gibney until the

time you got him in the van, did any of the

officers strike him or kick him in any way?

A. I didn't see any.

***

Q. Did you see Corporal Muldrow hit my client?

A. No.

Q. Would it surprise you if we know that

Corporal Muldrow hit my client?

A. Would it surprise me?

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Q. Yes.

A. I'm not sure what you mean.

Q. Okay. If - -

A. I didn't see the hit, just like I didn't

see him hitting Corporal Muldrow.

Corporal Muldrow was investigated by the Internal

Affairs Division of the City of Harrisburg Police Department

for the use of excessive force during the arrest of James

Blackwell. The plaintiff was interviewed and gave a statement

as part of the Internal Affairs investigation into Muldrow's

use of force during the Blackwell arrest. The plaintiff was

required under Department rules and orders to be truthful in

his written statement to Internal Affairs.

In his initial written statement to Internal Affairs on

December 7, 2003, the plaintiff did not disclose that he had

observed Corporal Muldrow strike Blackwell during the arrest,

even though the plaintiff was aware that Muldrow was being

investigated for his use of force during the Blackwell arrest.

In a conversation between the plaintiff and the

Internal Affairs Investigator, Sergeant Drobynak, that took

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place after the plaintiff had submitted a written statement but

before he gave an oral statement, Drobynak told the plaintiff

that Muldrow had admitted to striking Blackwell.2

On January 9, 2004, the plaintiff gave a voluntary

recorded statement to Sergeant Drobynak. The plaintiff was

required to testify truthfully in his verbal recorded statement

to Internal Affairs.

During that recorded statement on January 9,2004, the

plaintiff testified as follows:

Q. What did Corporal Muldrow do then?

A. Um, he with his hands he hit ah, Mr.

Blackwell I believe on the right side 2 or 3

times.

Q. You stated he hit him with his hand?

A. Yes. His was the side his wrist, his arm.

Q. Did he hit him with his hand, his arm, his

fist?

A. It, it I would say the, say the, I would

say the, the fist.

Q. And where did he hit him at?

2. The plaintiff's LR 56.1 statement denies this, but obviously

misconstrues it to be a statement about the plaintiff's statement. 

It is not denied by the plaintiff that Sergeant Drobynak said this

to the plaintiff.

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A. On I believe the right side cause I still

had him on the left side,

Q. You, you still had a hold of Mr.

Blackwell's arm at the time?

A. Yes.

Q. And he was in handcuffs?

A. Yeah, he was still in handcuffs yes.

Q. How many times did Corporal Muldrow hit him

in the side?

A. Uh, 2 or 3 times.

Q. Did you see any objects in Corporal

Muldrow's hand at the time?

A. No.

Q. So it was just his fist.

A. Just his fist yes.

Q. Did you see him strike him anywhere other

than in the side?

A. No just the side of the body.

Q. Did you see him strike him in the head at

any time?

A. No.

Q. How did Mr. Blackwell respond?

A. Uh, Mr. Blackwell, he, he I think we may

have took a step or two or he fell to the

ground, he dropped down to the ground I, and

then he, he dropped down to the ground and he

kind of ah, went down to the ground and he got

back up. I think he got back up.

In his recorded statement to Internal Affairs, the

plaintiff further stated:

Q. Do you feel the force used by Corporal

Muldrow prior to reaching the man was necessary

to effect the arrest?

A. Not to effect, no.

Q. Was it necessary for anything?

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A. No.

As a result of the Internal Affairs investigation into

Corporal Muldrow's use of force during the Blackwell arrest,

Corporal Muldrow was disciplined, receiving a six-month

suspension without pay and a demotion from Corporal to Patrol

Officer. Corporal Muldrow, through his collective bargaining

unit, the Fraternal Order of Police, Capital Lodge, filed a

grievance of the discipline imposed on him as a result of his

excessive use of force during the Blackwell arrest.

The Muldrow grievance proceeded to arbitration. During

the arbitration, the Fraternal Order of Police and Corporal

Muldrow were represented by Sean Welby, Esquire, and the City

of Harrisburg was represented by Frank Lavery, Esquire. The

arbitration proceeding was held over several sessions during

the years 2005 and 2006.

The plaintiff was called as a witness at the

arbitration hearing, on September 15, 2006, by Mr. Welby

representing the Fraternal Order of Police and Corporal

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Muldrow. On direct examination by Mr. Welby, the plaintiff

testified that he observed Corporal Muldrow punch Blackwell in

the side a couple of times.

At the arbitration hearing, on cross examination by Mr.

Lavery representing the City, the plaintiff testified as

follows:

Q. O.K. And, in fact, at the preliminary

hearing that took place in this case you

actually denied--or you actually indicated

under oath that Muldrow did not strike Mr.

Blackwell, isn't that correct?

A. Yes.

Q. So you didn't tell the truth in that proceeding, 

did you? 

A. No.

Q. Why was that?

A. The--there was a crowd in there that was

keen on--to me, they were trying to bring up a

civil issue that we weren't there about, sayin'

that they were trying to turn it into something

else. There was issues-they were bringing up

about him saying he struck him with something

black in his hand, a flashlight and everything,

and I said no.

Q. O.K. And you knew that was a lie, isn't

that correct?

A. Yes.

Q. And you lied under oath in front of a

district justice with criminal charges pending

against a man, isn't that right?

A. I didn't--I didn't tell the truth.

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Q. Isn't that what you did? Isn't that a lie?

Not telling the truth, isn't that a lie? 

A. Yes.

Chief Kellar was present at the Muldrow arbitration

hearing and heard the plaintiff’s testimony.

Following the plaintiff’s testimony at the Muldrow

arbitration, Chief Kellar referred the matter to Internal

Affairs for investigation of the plaintiff for giving false

testimony under oath in the Blackwell preliminary hearing.

On September 18, 2006, three days after his testimony

in the Muldrow arbitration, the plaintiff received written

notification that he was under investigation for "the

allegation that you gave untruthful testimony at a preliminary

hearing, possibly perjuring yourself."

The plaintiff submitted a written report attempting to

justify the differences in his prior testimony and statements

to the Internal Affairs investigator, Detective Belinda, on

September 22, 2006.

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The plaintiff submitted to a recorded interview with

Internal Affairs on October 18, 2006 during which he was

represented by attorney Welby and Detective David Lau,

Grievance Chairman for FOP Capital Lodge #12.

As part of the Internal Affairs investigation,

Detective Belinda consulted with the First Assistant District

Attorney for Dauphin County about the plaintiff’s situation

without revealing the name of the officer involved. The

Assistant District Attorney based upon what Detective Belinda

told him told Detective Belinda that some statement about the

plaintiff’s Blackwell preliminary hearing testimony would in

the future need to be made to the attorney for any criminal

defendant in a case in which the plaintiff was a potential

witness.

On January 17, 2007, the Internal Affairs investigation

of the plaintiff was concluded with a recommendation that

charges be sustained for violation of Article I, conduct

unbecoming an officer, and Article III, neglect of duty. The

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maximum potential penalty for conduct unbecoming an officer is

termination form the Police Department.

After Chief Kellar received the Internal Affairs

recommendation, he consulted with then First Assistant United

States Attorney for the Middle District of Pennsylvania, Martin

C. Carlson, and Dauphin County District Attorney, Edward

Marsico, Jr., regarding whether the plaintiff’s conduct,

characterized by Chief Kellar as lying under oath at the

Blackwell preliminary hearing, would be conduct that the

prosecution would need to disclose to the defendant in future

criminal cases in which the plaintiff was to be a potential

witness.

On March 22, 2007, then First Assistant U.S. Attorney

Martin C. Carlson wrote a letter to Chief Kellar in which he

stated:

In short, absent some definitive ruling by our

courts that this information need not be

disclosed, it would be my view that Officer

Adams' admitted falsification should be

disclosed to the defense by our office in any

cases in which this officer is an affiant or a

potential government witness in order to

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fulfill our constitutional obligations under

Brady, Giglio and Franks. This action, which

is compelled by our constitutional obligations,

will severely limit our ability to consider

prosecuting cases in which the officer is a

material witness.

On May 14, 2007, Dauphin County District Attorney

Edward M. Marsico, Jr., authored a letter to Chief Kellar in

which he stated:

Under applicable case law, our office has a

duty to disclose material facts to defense

attorneys which are known by us and are

relevant to witness credibility and could

potentially provide grounds for impeachment of

witnesses. As such, I believe that a statement

by an officer admitting that he or she had lied

under oath would be relevant and material

impeachment information which our office would

be required to disclose to the Court and

defense in any cases in which Officer Adams was

a witness. Because I believe that Officer

Adams' admitted falsification should be

disclosed to the defense by our office whenever

he is a witness, our ability to prosecute cases

in which Officer Adams is a material witness

will be severely compromised.

The plaintiff was informed by Chief Kellar in April of

2007 that he would be terminated from the police department for

the offenses of conduct unbecoming an officer and neglect of

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duty based upon the plaintiff’s Blackwell preliminary hearing

testimony.

Representatives of the Fraternal Order of Police, Jason

Brinker, David Lau, and the FOP's counsel, Sean Welby, Esquire,

immediately began negotiations with the City in an effort to

save the plaintiff’s pension in light of his eighteen years of

service as a City of Harrisburg police officer.

Between April of 2007 and June of 2007, the plaintiff’s

FOP representatives, including his counsel, Mr. Welby,

negotiated an arrangement in which the plaintiff would be

terminated from employment under circumstances that would

preserve his entitlement to a pension. Specifically, the

agreement negotiated on behalf of the plaintiff by Mr. Welby

and the FOP contained the following material terms: (1) the

plaintiff would be suspended without pay for approximately two

years until the day on which he would have logged 20 years of

employment by the police department; (2) on the day on which

the plaintiff had achieved 20 years of employment, the

plaintiff would resign; (3) the plaintiff would be

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permitted to sell accrued vacation and leave time back to the

City to fund additional contributions to his pension; (4) the

plaintiff and his family would maintain their health

insurance coverage for those two years and then be entitled to

additional health insurance coverage starting in 2012; (5) the 

plaintiff would release all claims against the City.

The plaintiff’s attorney, Mr. Welby, and the

plaintiff’s FOP representatives recommended to the plaintiff

that he accept the agreement negotiated by them on the

plaintiff’s behalf. The plaintiff did not accept the

negotiated agreement. The plaintiff initiated this civil

action.

The City of Harrisburg and the Fraternal Order of

Police considered the initiation of this civil action to be a

rejection of the proposed agreement in which the plaintiff

would have agreed to release all claims against the City.

As a result of the plaintiff’s rejection of the

proposed agreement, the City of Harrisburg continued with its

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original decision to terminate the plaintiff. A termination

hearing was held on June 29, 2007. The plaintiff was

terminated upon a departmental finding of neglect of duty and

of conduct unbecoming an officer, based upon his false

testimony at the Blackwell preliminary hearing.

The plaintiff claims that he was disciplined more

harshly than non-minority officers who committed the same

violation(s).

The plaintiff testified at his deposition that various

police officers from the City of Harrisburg, some Caucasian and

some African American, had committed violations that the

plaintiff deemed more serious than his own violation.

The plaintiff has focused on the disciplinary process

and outcome involving Detective Ryan Neal, a Caucasian vice

detective, as a comparative process for equal protection

purposes. 

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On January 15, 2009, Detective Neal was charged by his

immediate supervisor, Sergeant Holmes, with a failure to

conduct a proper investigation. He was not subject to possible

termination based upon this charge. 

The discipline against Detective Neal stemmed from

statements he had made in sworn affidavits seeking two search

warrants. In the first application, Neal had stated that a

confidential informant had stated to Neal that a certain person

was in a house during a drug buy. Although the confidential

informant had made such a statement, Neal knew that it was not

true. Neal knew from officers who had surveilled the drug buy

that the person was not in the house. Neal stated in the

application that the confidential informant had stated that the

person was in the house during a drug buy without any other

statement to show to the judicial officer that as was known to

Neal the person had in fact not been in the house. In the

second application, Neal wrote in a warrant application that a

drug transaction had occurred inside a house when the drug

transaction had in fact occurred at the front door of the

house. 

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Neal’s immediate supervisor, Sergeant Brenda Holmes,

stated that Neal's incorrect statements constituted sloppy

police work.

Neal was not charged with a disciplinary violation for

which he was subject to termination. He was charged with a

failure to conduct a proper investigation. Chief Kellar

imposed a penalty in the case of Neal’s misconduct of a two day

suspension and a twelve month retraining program. Neal was

removed from the vice unit. Neal accepted the discipline.

Captain Baldwin and Chief Kellar further consulted with

District Attorney Edward Marsico to determine whether Neal's

untrue search warrant sworn statements were matters that would

need to be disclosed under Brady to charged criminal defendants

as a part of discovery. The District Attorney concluded that

there were neither criminal nor Brady implications in Neal's

violations.

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Discussion.

In his initial complaint (Doc. 1), filed before he was

terminated from his job, the plaintiff’s claim was that after

Blackwell, the citizen arrested by Corporal Muldrow and the

plaintiff in October of 2003, had filed a federal civil action

against Muldrow and against the plaintiff alleging an excessive

use of force in the course of the October 2003 arrest, and

after that federal case had settled, the plaintiff had been

instructed by defendant Kellar not to testify at the September

2006 Muldrow disciplinary grievance arbitration. But the

plaintiff was summoned to appear at that proceeding and did

appear and did testify truthfully, and then became the subject

of an internal investigation based upon his testimony. He was

stripped of his duties, taken off patrol and assigned reportwriting duties. His testimony had been at odds with the

defendant’s “hidden agenda” involving a vendetta against

Muldrow, he alleges. In April of 2007, he was told that he

must accept a two year suspension and then retire, for conduct

unbecoming an officer, or else he would be terminated. He

claimed, in the initial complaint, a denial of equal protection

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based upon race in that he was being disciplined more severely

than white officers for a similar or a less serious infraction,

and he claimed that the discipline was in retaliation for his

arbitration hearing testimony.

In the amended complaint (Doc. 7), filed two months

later and after his termination, the plaintiff added the City

of Harrisburg as a defendant and alleged further that after he

had filed this civil action, and before he had decided whether

to accept the offer of defendant Kellar to avoid termination by

agreeing to a two year suspension followed by retirement, he

was terminated from his job by defendant Kellar for having

filed this civil action. His remaining claims against both

defendants in the amended complaint are his claim of

retaliation for the exercise of his right to testify (at the

Muldrow arbitration) and to bring a civil action (this case)

and his claim of an equal protection violation. He adds a

Monnell claim against defendant City of Harrisburg.

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First Amendment Retaliation Claim.

Retaliation for the exercise of First Amendment rights

is a constitutional violation. Mount Healthy City Board of

Education v. Doyle, 429 U.S. 274 (1977); White v. Napoleon, 897

F.2d 103, 111-12 (3d Cir. 1990)(“Retaliation for the exercise

of constitutionally protected rights is itself a violation of

rights secured by the Constitution actionable under section

1983.”). A plaintiff must first establish an adverse action. 

Here, a termination from employment was an adverse action. The

plaintiff must also establish an exercise of his constitutional

rights. The plaintiff giving testimony at an arbitration was a

right that he had. His use of the courts to resolve grievances

was a right that he has. 

“In a First Amendment retaliation case, the plaintiff

has the initial burden of showing that his constitutionally

protected conduct was a “substantial” or “motivating factor” in

the relevant decision.” Suppan v. Dadonna, 203 F.3d 228, 235

(3d Cir. 2000). “Once the plaintiff carries this burden, the

burden shifts to the defendant to show ‘by a preponderance of

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the evidence that [he or she] would have reached the same

decision even in the absence of the protected conduct.’” Id. at

235 (quoting Mount Healthy, supra, 429 U.S. at 287).

The plaintiff’s First Amendment claim alleging

retaliation for bringing this civil action is under the

undisputed facts a claim as to which the defendants have

established that they are entitled to summary judgment for the

reason that they had told the plaintiff previously that he

would be terminated if he did not accept the resignation and

suspension compromise and because they reasonably could

consider this lawsuit to be a rejection of that compromise. 

There is not a genuine dispute that the decision to

terminate the plaintiff from his employment as a Harrisburg

City police officer had been made before this case was filed. 

The issue pending when this case was filed was whether he would

accept the offer to him of a lengthy suspension and a delayed

resignation so as to permit him to have a pension. The time

allotted to the plaintiff in which to accept the offer had

either expired or was about to expire, but whether or not it

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had expired is not a material factor. Then the plaintiff filed

this civil action, and then he was terminated. The plaintiff

was terminated on the stated grounds that he had committed the

offense of conduct unbecoming an officer in that he had falsely

testified at the Blackwell preliminary hearing that he had not

seen Muldrow strike Blackwell and because defendant Kellar had

determined that in future criminal cases in which the plaintiff

would be a witness there would need to be a disclosure to the

defense of his false statements. The plaintiff knew of

defendant Kellar’s plan to terminate him when, on June 21,

2007, he filed this civil action. He was going to be

terminated, he had been told, unless he were to accept the

proposed agreement for a suspension to be followed by his

resignation. A reasonable inference can not be drawn from the

circumstances presented that the plaintiff was terminated for

filing this civil action, or in other words that his

termination would not have occurred if he had not brought this

civil action.

The plaintiff’s other claim of retaliation is that the

Chief disliked Muldrow, the plaintiff’s testimony at the

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Blackwell preliminary hearing was favorable to Muldrow, the

Chief wanted to prevail but did not prevail at the Muldrow

arbitration hearing, and the Chief assigned some blame to the

plaintiff, as a Muldrow friend, for not prevailing against

Muldrow.

The Muldrow arbitration hearing testimony provided an

evidentiary basis for defendant Kellar’s finding that the

testimony of the plaintiff at the Blackwell preliminary hearing

was false testimony. A reasonable inference can be drawn that

it was the testimony of the plaintiff at the Blackwell

preliminary hearing that was the basis for the decision of

defendant Kellar to terminate the plaintiff as an officer, not

on the basis that it favored Muldrow but on the basis that it

was found to be false. 

The plaintiff’s declaration states that defendant

Kellar and Attorney Lavery told the plaintiff that he would be

terminated if he were to show up at the Muldrow arbitration

hearing. They told him, he states, that his Blackwell

preliminary hearing testimony was perjury. They told him, he

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states, that the “would let it go if [he] simply did not show

up to testify at Muldrow’s hearing.” (Declaration of Julian

Adams, Doc. 103-13). An inference of retaliation for the

plaintiff’s appearance at the arbitration hearing is, however,

not reasonably or plausible, since the substance of his

testimony there contributed both to grounds for disciplining

Muldrow and to grounds for terminating the plaintiff.

It will be recommended that the motion of the

defendants for summary judgment be granted as to the

plaintiff’s claims of retaliation by the defendants for the

plaintiff’s exercise of his First Amendment rights.

Equal Protection Claim.

Turning to the defendants’ motion for summary judgment

as to the plaintiff’s equal protection claim, we observe at the

outset that it is a Section 1983 claim. It is not a Title VII

claim or a Pennsylvania Human Relations Act claim.

To assert an equal protection claim based upon

membership in a protected class, the plaintiff

must demonstrate (1) that he or she is a member

of a protected class and (2) that the

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government treated similarly situated

individuals outside of the protected class

differently. See Oliveira v. Twp. of

Irvington, 41 F.App’x 555, 559 (3d Cir. 2005);

Keenan v. City of Phila., 983 F.2d 459, 465 (3d

Cir. 1992) (requiring plaintiffs to demonstrate

differential treatment on the basis of

membership in a protected class). When

alleging the existence of individuals outside

the protected class, a plaintiff “cannot use

allegations ... that amount to nothing more

than ‘conclusory, boilerplate language’ to show

that he may be entitled to relief.” Young v.

New Sewickley Twp., 160 F.App’x 263, 266 (3d

Cir. 2006) (citing Evancho v. Fisher, 423 F.3d

347, 354-55 (3d Cir. 2005)). The plaintiff

must instead identify individuals outside of

the plaintiff's protected class who received

differential treatment. See Harris v. New

Jersey, No. Civ. A. 02-2002, 2008 WL 141503, at

*10 (D.N.J. Jan. 14, 2008); Lane v. Culp, No.

Civ. A. 05-576, 2007 WL 954101, at *1 (W.D.Pa.

Mar. 28, 2007). In this respect, the evidence

required to prove a protected-class equal

protection claim is equivalent to that required

for a Title VII disparate treatment case. See

Black v. Columbus Pub. Sch., 79 F.App’x 735,

738 (6th Cir. 2003); Andrews v. City of Phila.,

895 F.2d 1469, 1483 n. 4 (3d Cir. 1990)

(observing that both Title VII and equal

protection claims require proof of 

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discrimination based upon membership in a

protected class).

Terrell v. City of Harrisburg Police Dept., 549 F. Supp.2d 671,

687 (M.D.Pa. 2008). 

In the summary judgment context, where the plaintiff

has the trial burden of proving his claim and the defendant is

the party moving for summary judgment, the equal protection

issue is properly framed as whether there is evidence

sufficient to support a reasonable inference that the

plaintiff, a member of a protected class, was treated in a

materially different (and less favorable) manner as to a

certain decision or action by the defendants than persons not

in the protected class even though the plaintiff and the other

persons were similarly situated as to the factors that are

material to the particular decision or action. 

The defendants argue that there is no similarly

situated person not in the plaintiff’s protected class who was

treated differently from the way in which the plaintiff was

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treated by the defendants. Although the plaintiff asserts

generally that there were other instances of officers who but

for race were in a similar situation to his and were treated

differently by the defendants, and although he refers to other

officers having given false statements about use of force in

the October 2003 arrest of Mr. Blackwell, both the defendants

and the plaintiff have focused principally upon the case of

Officer Ryan Neal in the discussion of the equal protection of

the plaintiff. We will limit our summary judgment analysis to

the Neal comparison. 

3

The plaintiff’s discipline was imposed in 2007 for

conduct that occurred in 2003. The discipline of Officer Neal

in 2009 was for conduct occurring in 2008 and early 2009. The

different time frameworks do not make a material difference. 

Defendant Kellar was the Chief of Police throughout this entire

relevant period and he made the final disciplinary decision in

both officers’ cases. 

3. Whether or not the plaintiff at trial should be permitted to

present evidence relating to putatively similarly situated persons

other than Officer Neal is not addressed herein.

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The defendants argue that there are material

differences between the two officers’ violations and that the

differences include the reasons for discipline, the charges,

the outcome of district attorney review and the effect upon the

officer’s ability to go forward and to function as a police

officer.

Each officer was accused of conduct that can reasonably

be classified as having made false statements under oath, one

as a witness testifying in court and one as an affiant

presenting applications to a judge for orders authorizing the

searches of persons' homes. The two officers plainly were

treated differently by the defendants, one receiving a two day

suspension and the other a termination. The court must decide

in this present context of a summary judgment motion whether a

jury could reasonably infer that the two officer’s violations

and other significant factors are materially similar. 

There is not a significant difference in the reasons

for disciplining one officer who has made false statements in

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court testimony and another officer who has made false

statements in search warrant affidavits. Police dishonesty,

perhaps particularly as to matters affecting individuals’

rights, are harmful to the objectives of our justice system,

and accordingly to police department interests. There is a

significant difference between intentional and knowing false

statements on the one hand and, on the other hand,

unintentional false statements. Here, one officer’s false

statements were characterized by the defendants as careless or

sloppy while the other’s were characterized as intentional. 

Whether these characterizations were reasonable is a material

issue that is in genuine dispute. Upon our careful review of

the record, we find there to be a genuine issue as to the state

of mind of each officer in making false statements. There is a

genuine issue as to whether the defendants’ finding of a

material dissimilarity is incorrect. 

The defendants describe the false statements under oath

of the plaintiff as knowing and intentional and those of

Detective Neal as sloppy police work. The plaintiff describes

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the false statements of Detective Neal as knowing and

intentional and those of the plaintiff as a matter of a

misunderstanding of questions asked in the proceedings. 

The plaintiff in his brief asserts, “Plaintiff never

committed perjury or otherwise gave sworn testimony that was

knowingly false with the intent to deceive anyone.” He argues

that it should have been accepted as true by defendant Kellar

that he construed the questioning at the Blackwell preliminary

hearing about whether Muldrow had struck Blackwell as

concerning whether Muldrow had struck Blackwell on the head,

since that was the subject of the complaints of excessive force

that had been presented and because the plaintiff considered

the preliminary hearing questions to be focused upon that

particular kind of striking force. The plaintiff states in his

Declaration:

12. After the Blackwell preliminary hearing, I

learned that there was a disciplinary

investigation of Lydell Muldrow for the use of

excessive force in the arrest of James

Blackwell. The investigation was conducted by

Sergeant Drobnak. Sergeant Drobnak and I

discussed my testimony at the preliminary

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hearing, and how that he thought that when I

said I didn't see any hits to Blackwell's head

that it was a little sloppy on my part. He

reminded me that even Muldrow admitted to

hitting Blackwell after Blackwell began

resisting arrest. This refreshed my

recollection that I did observe Muldrow give

Blackwell a couple of shots to the body to

control him, as I said during my interview with

Drobnak. At the time of the preliminary

hearing, I was focused on the questions and

discussion about Muldrow allegedly striking

Blackwell in the head with his flashlight

and/or his fists because I had heard that there

were allegations that this is what he did, and

I knew I didn't see any such hits. This is why

I testified the way I did, and it was all

truthful.

13. I am required as a police officer to give

sworn statements during the course of

disciplinary investigations like the one

Drobnak was conducting, and to answer all of

his questions as directed. He told me at one

point that he had concluded that the force used

by Muldrow was not necessary for anything, and,

because he interviewed more people than me and

was the person charged with making those

conclusions, I agreed with him. At no time did

Drobnak tell me that he thought I testified

falsely or that there was anything that I could

be disciplined for. He counseled me to be more

careful in my testimony in the future. This

was in early 2004, and I didn't hear anything

more about it until I was called in to talk to

Mr. Lavery in October 2005.

14. I was involved in the arrest of James

Blackwell on October 24, 2003. I was advised

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that Blackwell was armed and extremely

dangerous, and I knew of him from past

involvement with the Harrisburg Police. 

Officer Muldrow and I were assisted by numerous

officers that evening who all claimed in their

orchestrated testimony that Officer Muldrow

"beat Blackwell up" this is completely untrue

and false. These officers all testified

falsely, as confirmed by the Arbitrator's

findings in the Muldrow matter.

****

18. In early October, 2005, I was instructed

to come to the Chief’s Office to meet with him

and Attorney Lavery. I met with Lavery himself

on October 11, 2005, and I met with the Chief

and Lavery about a week before then. Lavery

and the Chief obviously did not want me to

testify at Muldrow's arbitration. Attorney

Lavery personally ordered me to not attend

Muldrow's hearing, and if I did so, I would

suffer consequences. Lavery also told me not

to speak with Sean Welby who was my union

attorney. Lavery also advised me there was a

lawsuit against Muldrow and the City and they

would have to pay a lot of money over this. He

threatened me by saying that what I did was

perjury, but that he and the Chief would let it

go if I simply did not show up to testify at

Muldrow's hearing.

19. After October 11, 2005, I never attended

any hearing regarding Corporal Muldrow. I know

that I never ever testified falsely with the

intent to deceive, committed false swearing or

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committed perjury, but I had also been a

Harrisburg Police Officer long enough to know

that that police officers can be abused,

disciplined, and lose their job when they

become a target of Kellar's vendettas. I was

afraid for my family and for the community I

serve as a police officer, which is why I did

not show up for any arbitration hearings until

ordered to do so by Chief Kellar.

20. I was very surprised and quite anxious

when I learned from detective Lau that I was

ordered by Chief Kellar to appear for the

September 15, 2006 hearing or be disciplined. 

I told Lau I felt I should be prepped for the

hearing because it had been so long since I had

gone over this matter, and did not understand

why it was Lau who was contacting me, but that

he didn't tell me I have any right to

representation. This was all a complete

contradiction of what Mr. Lavery advised me to

do previously, and I was very confused and

nervous about it all.

21. Mr. Lavery also advised me that [what] I

supposedly did was considered "perjury" and the

Chief is willing to let this go if plaintiff

did not testify for Muldrow. I was intimidated

by the direct threats and in jeopardy of losing

my whole career. I totally relied on Mr.

Lavery as an expert and did what I was told to

do. I agreed with statements he made in his

questions to me, but knew then and know now

that I never testified falsely with the intent

to deceive or made a false swearing or perjury. 

I simply agreed that the whole truth did not

come out in my testimony (a whole truth that I

did not know and in response to some very

inartful questions at the preliminary hearing),

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and that in that sense it can be called lying. 

I had no representation and should have, and

they should have told me I had a right to it. 

22. Mr. Lavery and the Chief spoke to me

without any Union rep and or attorney which I

thought was extremely odd at the time. If I

committed perjury and was going to be

disciplined at the time I should have been

given the right to be advised by my attorney

and/or Union Rep.

23. I was treated totally different from

officers Canfield, Neal, Holmes, Godusky, and

Galkowski (all Caucasian) who all testified at

the arbitration hearing that Muldrow punched

Blackwell in the head. If Muldrow hit

Blackwell in the head, I would have seen it

because they were both in my presence the whole

time. The testimony of these officers is all

lies and known to be so by Kellar at the time,

and likely orchestrated by defendants.

(Declaration of Julian Adams, Doc. 103-13).

Although a reasonable inference can be drawn that the

plaintiff knowingly testified untruthfully at the Blackwell

preliminary hearing, that proposition is in genuine dispute in

this case. 

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A reasonable inference can be drawn that the plaintiff

had admitted to knowingly testifying falsely, but that too is

in dispute. It is not free from genuine dispute that the

plaintiff admitted to Blackwell hearing false swearing in his

Muldrow hearing testimony. The plaintiff’s acknowledgment at

the Muldrow arbitration hearing that his testimony at the

preliminary hearing that Muldrow had used no striking or

hitting force had not been truthful and that not telling the

truth is a lie is reasonably construed as an admission by the

plaintiff that he had knowingly given untruthful testimony at

the Blackwell preliminary hearing. But the plaintiff denies

that it was an admission, and other interpretations of what he

stated may be plausible. 

The plaintiff has been found through the Police

Bureau’s fact finding process to have given false testimony,

but he has not been found independently of that process to have

given false testimony. He was not charged with perjury. The

defendants ask the court to defer to police department

administrative fact finding. In this context, where the claim

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is one of a denial of equal protection in administrative fact

finding, the defendants’ request is out of place.

The Arbitrator’s Opinion (Doc. 103-14, Exh. Q) in the

matter of the arbitration of the Muldrow suspension reveals

that there was a wide range of often inconsistent sworn

testimonial assertions of officers and witnesses concerning the

events of October 23, 2003 involving the arrest of Mr.

Blackwell. Some of these police officer witnesses testified

that they had seen Officer Muldrow strike Mr. Blackwell in the

head and in the face. Citizen witnesses had testified that

Blackwell was hit with a flashlight or a billy club. Officer

Neal had testified that punches were thrown by Muldrow to

Blackwell’s head. The Arbitrator, following extensive

discussion of very far ranging testimony, found that Mr.

Blackwell was not struck by Officer Muldrow in the head or in

the face. The Arbitrator found that Officer Muldrow had used

force in an effort to move Mr. Blackwell by striking him in the

ribs and by attempting to strike him in other parts of his

body. The Arbitrator cited the Department’s Use of Force

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Policy and found that, considering the totality of the

circumstances, the discipline that had been imposed as to

Officer Muldrow was excessive. 

No officer who testified at the arbitration hearing

other than the plaintiff was disciplined on the basis of

testimony given relating to the Blackwell arrest incident.

The plaintiff claims that he, an African American

officer, was treated differently from how Detective Ryan Neal,

a white officer, was treated in materially the same

circumstances. Neal had written two search warrant

applications containing factual errors. Neal had in one

instance stated in an application for a search warrant that a

confidential informant had said that a certain named person

sold drugs to the confidential informant inside a certain

house. In that instance, while it was true that the

confidential informant had said to him that he or she had

purchased drugs in that house from that named person, by the

time that Detective Neal made application for the search

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warrant he knew that it was not that named person who had been

in the house and had made the referenced sale. He knew that

the named person had not been in that house at the time of the

sale. But he did not note that in the warrant application. It

ensued that that named person was criminally charged and, after

that, the charge was dismissed against that person. (Neal

Deposition, Doc. 103-16, Exh. S; Jenkins Deposition, Doc. 112). 

In a later search warrant application, Detective Neal

stated that a drug transaction had occurred inside a house,

when in reality it had not occurred inside the house. It had

occurred at the doorway of the house. He stated that one

person (the confidential informant) had entered and exited the

house prior to the transaction when in fact another person had

entered and exited the house prior to the transaction. A

charge was brought against a person as a result of evidence

seized in the execution of that search warrant. That charge

was later dismissed. (Neal Deposition, Doc. 103-16; Jenkins

Deposition, Doc. 112).

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In both matters, Detective Neal was charged with

failing to conduct a proper investigation. He was determined

by defendant Kellar to have violated the Code of Conduct, and

was disciplined with a two day suspension. He was not charged

with having made false statements under oath. He was not

charged with conduct unbecoming to an officer, a violation

subject to a range of punishment including termination, as was

the plaintiff. As a function of the charge brought against

him, Officer Neal was not subject to possible termination. He

was removed from the Vice Unit in which he had been assigned,

but he was not dismissed from the Department. 

A more in depth, and informative, statement of the

facts relating to the two search warrants is set forth by

Officer Jenkins in his deposition. (Doc. 112). 4

The defendants refer in their brief, in comparing and

contrasting the Adams and the Neal cases, to Adams’ false

4. The deposition is under seal. Order of March 3, 2009. 

(Doc. 46). 

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Case 4:07-cv-01103-LFS Document 115 Filed 08/16/10 Page 47 of 57
swearing in preliminary hearing testimony as “lying under oath”

and to Neal’s false swearing in two search warrant affidavits

as “two misstatements”. 

Although Detective Neal was not charged with false

swearing, a reasonable inference can be drawn that Detective 

Neal’s conduct involved false swearing in making statements

under oath. A police officer’s statement in an application for

a search warrant that “a confidential informant has stated that

X occurred” is, as judges, attorneys and police officers know,

intended by the police officer to be considered by the judge as

a basis for the judge to find that X occurred. If the police

officer learns that X did not occur but states in the search

warrant application that the confidential informant had stated

that X occurred, that is a literally true statement but viewed

in correct context is a material misrepresentation to the

judge. 

Assuming arguendo that both the plaintiff and Officer

Neal both knowingly under oath made false statements, there is

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a basis for a reasonable inference of disparate treatment. 

Assuming arguendo that both made “misstatements”, there is a

basis for a reasonable inference of disparate treatment. The

level and the nature of the officer’s knowledge and of the

officer’s intent in both instances is a matter open to a range

of possible inferences. In the context of this equal

protection issue, a deference to the police department’s

disciplinary characterizations of the conduct would not be

appropriate. The evidence relating to the level and the nature

of knowledge and of intent in the two situations is not

amenable here to a finding that no reasonable inference of

similarity can be drawn.

In our analysis of it, the defendants have not argued

that the Neal and Adams situations are dissimilar on a basis

that does not require the resolution of some issue of

credibility. Credibility issues are not properly resolved by

the court on a summary judgment motion, but must be resolved by

the jury. 

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It is not free from genuine dispute whether the

plaintiff intentionally testified falsely at the Blackwell

hearing. Although the plaintiff's opinion that he has

testified clearly at all times (Declaration of Julian Adams,

Doc. 103-13) is not plausible, and although it is possibly

difficult from the summary judgment record to find reasonable

the plaintiff's explanation for his assertion that he did not

intend to falsely state the facts in denying repeatedly at the

Blackwell hearing that Muldrow had hit Blackwell, it is also

difficult to find reasonable the defendants' determination that

another officer's false representation to the court in a search

warrant application was a comparatively minor infraction. 

The false swearing of a police officer in a search

warrant affidavit is as serious of a violation of police

department interests as is false testimony under oath in a

court proceeding. The officer preparing the affidavit has the

unbridled opportunity to choose the language and the facts to

be used in the affidavit. The officer testifying in court does

not choose the subject matter of the question or the phrasing

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of the question. The officer in court generally does not have

the opportunity to explain the answers he states to the

questions. The conditions of in-court testimony do not lend

themselves to prolonged deliberation over the best articulation

of facts. The conditions under which a search warrant

affidavit is prepared do not usually involve similar pressures

and constraints. 

A description of the plaintiff’s conduct of false

swearing under oath was submitted by defendant Kellar to the

Dauphin County District Attorney and to the United States

Attorney for the Middle District of Pennsylvania and both

prosecutors advised defendant Kellar that criminal case

defendants in future cases in which the plaintiff was involved

as an investigator or witness would need to be informed that

the plaintiff had testified falsely under oath. A description

of Detective Neal’s conduct was submitted by defendant Kellar

to the District Attorney of Dauphin County. The District

Attorney of Dauphin County told defendant Kellar that criminal

defendants in future cases in which Detective Neal is an

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investigator or a potential witness will not need to be told

that Detective Neal had made false statements in search warrant

affidavits. The summary judgment record does not include

evidence of the description of the facts presented to the

prosecutors in the meeting leading to the prosecutors’ letters.

The defendants have not argued that an officer’s false

statement under oath in a search warrant application is not as

serious of a trespass against the objectives of the justice

system as an officer’s false statement under oath in courtroom

testimony. The difference that the defendants are advancing is

one of state of mind. They advance the theory that the

plaintiff’s falsehood was knowing and intentional and that

Detective Neal’s false statements in two search warrant

affidavits were “sloppy police work”. This is a factual

argument, and the factual characterizations are genuinely in

dispute.

The plaintiff, like Officer Neal, had an explanation

for his preliminary hearing testimony in the Blackwell case

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that if accepted as true would support an inference that he was

not knowingly testifying falsely. (Doc. 94-6, Exh. C, pp. 37-

44, 49-53). Some fact finders might find the likelihood of

purposeful deception in the one officer’s case to be greater

than in the other’s case. 

The plaintiff’s equal protection claim, based upon the

comparison of his termination for testifying falsely under oath

to the two day suspension of a white police officer, who on two

occasions provided false statements in search warrant

applications, is a claim as to which there is a genuine dispute 

as to material issues of fact. It may be determined by the

jury at trial that the two are materially different, but that

can not be found to be so on the summary judgment record. 

The circumstances and the content of the plaintiff’s

testimony under examination by Attorney Lavery at the Muldrow

arbitration hearing are significant evidence in the matter of

the plaintiff’s claim of unequal treatment. The defendants’

construction of the arbitration hearing testimony as an

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admission of intentional false swearing on the part of the

plaintiff is a reasonable construction of it. But the

plaintiff was not a party in that proceeding and was not

represented. He had no representative there to further develop

the meaning of his answers to the questions asked of him by the

attorney for the Police Bureau. 

We conclude for the foregoing reasons that there is

evidence to support a reasonable inference that the plaintiff,

a member of a protected class, was treated in a materially

different manner, as to the decision of defendant Kellar to

terminate him from his employment, from a similarly situated

person not in the protected class. 

Qualified Immunity.

 Qualified immunity is appropriate if the alleged

conduct of the defendant does not violate clearly established

constitutional or statutory rights of which a reasonable person

would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).

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In Saucier v. Katz, 533 U.S. 194, 121 S.Ct.

2151, 150 L.Ed.2d 272 (2001), the Court

explained that a qualified immunity analysis

must begin with this threshold question: do the

facts alleged, viewed in the light most

favorable to the party asserting the injury,

show that the officer's conduct violated a

constitutional right? Saucier, 121 S.Ct. at

2156. If the plaintiff fails to allege the

violation of a constitutional right, no further

inquiry is necessary. If, however, the alleged

facts show that there was a constitutional

violation, then the next step is to ask whether

the right was clearly established. See id. In

other words, a court must consider “whether it

would be clear to a reasonable officer that his

conduct was unlawful in the situation he

confronted.” Id. (citing Wilson v. Layne, 526

U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818

(1999)). This inquiry, the Court noted, “must

be undertaken in light of the specific context

of the case, not as a broad general

proposition.” Id. If a court concludes that an

officer's conduct did violate a clearly

established constitutional right, then it must

deny him the protection afforded by qualified

immunity. See id. at 2156-57.

Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). The

plaintiff in the amended complaint alleges a violation of the

right to equal protection, a right of which defendant Kellar

would reasonably have known. Defendant Kellar is not entitled

to qualified immunity. 

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City of Harrisburg as a Defendant Under Monell.

The defendants acknowledge that Chief Kellar

constituted the final policy making authority for discipline in

the police department and that this constitutes grounds for

municipal liability under Monell v. Department of Social

Servs., 436 U.S. 658 (1978) and McGreevy v. Stroup, 413 F.3d

329 (3d Cir. 2005) if there is a constitutional tort. If the

plaintiff succeeds on his constitutional tort claim, there can

be municipal liability. The motion for dismissal of the City

of Harrisburg under Monell should be denied. 

Recommendation.

It is recommended that the defendants’ motion for

summary judgment be granted in part and denied in part. It is

recommended that the motion be granted as to the plaintiff’s

claim of retaliation for his exercise of his right to testify

(in the arbitration) and of his right to bring a civil action. 

It is recommended that the motion be denied as to the

plaintiff’s claim that his termination violated his right to

equal protection of the laws. It is recommended that the

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Case 4:07-cv-01103-LFS Document 115 Filed 08/16/10 Page 56 of 57
motion of defendant Kellar to dismiss on the basis of qualified

immunity be denied and that the motion of defendant City of

Harrisburg to dismiss under Monell be denied. It is further

recommended that the Order of March 3, 2009 (Doc. 46) be

vacated, and that the case be listed for trial. 

/s/ J. Andrew Smyser

J. Andrew Smyser

Magistrate Judge

Dated: August 16, 2010.

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