2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-8-2010

James DeWees v. Jeffrey Haste

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2804

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Recommended Citation

"James DeWees v. Jeffrey Haste" (2010). 2010 Decisions. Paper 990.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2804

___________

JAMES M. DEWEES, 

 Appellant

v.

JEFFREY T. HASTE; MARK TEMPLETON; 

DOMINICK DEROSE; DAUPHIN COUNTY

___________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1-05-cv-00212)

District Judge: The Honorable Yvette Kane

___________

Submitted Under Third Circuit LAR 34.1(a)

May 20, 2010

Before: FUENTES, HARDIMAN, and NYGAARD, Circuit Judges.

(Filed: July 8, 2010)

___________

OPINION OF THE COURT

___________
The District Court noted that DeWees’ complaint appeared to raise both 1.

individual and official capacity claims against DeRose, Haste, and Templeton. It

dismissed the official capacity claims as duplicative of the claim against Dauphin County. 

DeWees does not challenge the District Court’s finding.

2

NYGAARD, Circuit Judge.

Since this opinion is wholly without precedential value, we write solely for the

benefit of the parties, who are familiar with the factual and procedural history of this case. 

The District Court granted summary judgment in favor of the Appellees on all claims. 

We will affirm.

 James DeWees, former Deputy Warden at the Dauphin County Prison, first

alleges that the termination of his employment was a retaliatory act in violation of the

First Amendment of the United States Constitution. DeWees alleges that Dauphin

County and, in their individual capacities, Prison Warden Dominick DeRose, County

Commissioner Jeffrey Haste, and Human Resources Director Mark Templeton eliminated

his position in retaliation for three acts: DeWees’ previous lawsuit against DeRose and

Dauphin County; a report DeWees made to the District Attorney about alleged over

billing by a prison contractor; and a letter DeWees sent to Haste about alleged

misappropriations of prisoners’ funds. He further claims that his termination constitutes 1

a wrongful discharge under Pennsylvania law. 

DeWees next alleges that the Defendants withheld his final paycheck, in violation

of his rights to due process and equal protection under the Fourteenth Amendment of the
In addition, the District Court concluded that it “cannot say that Defendants have 2.

satisfied their substantial burden of proving a non-retaliatory basis was the but-for cause

of Plaintiff's loss of his job and that no reasonable juror could conclude otherwise.” 

DeWees v. Haste, 620 F.Supp.2d 625, 634 (M.D.Pa. 2009).

3

United States Constitution. Finally, DeWees maintains that the Defendants’ roles in

terminating his employment constitute civil conspiracy.

On appeal, DeWees argues that the District Court applied the wrong standard of

review to his claims, thereby failing to make reasonable inferences of fact in his favor. 

He also asserts that the District Court made numerous errors of law and fact. We will

briefly review each claim. 

With regard to alleged First Amendment retaliation arising from DeWees’ reports

of financial issues at the prison, he acknowledges in briefing that such a claim is premised

upon a legal determination that the events allegedly giving rise to retaliation were

protected speech. We do not find any error in the District Court’s legal conclusion that

DeWees’ reports of alleged improprieties at the prison were not protected speech because

they fell within his employment obligations. Garcetti v. Ceballos, 547 U.S. 410, 421

(2006). Accordingly, DeWees’ First Amendment retaliation claim stemming from these

reports clearly failed as a matter of law.

The District Court did find that DeWees provided sufficient, albeit paltry, evidence

to make out a prima facie case that the elimination of his position was in retaliation for

his earlier lawsuit against DeRose and Dauphin County. Yet, the District Court ruled 2
DeWees attempted, at the time of summary judgment, to construe his allegation 3.

that Templeton withheld his paycheck as another instance of First Amendment retaliation. 

The District Court ruled that characterizing this allegation in this manner was inconsistent

with DeWees’ complaint, and it refused to consider this claim in its First Amendment

analysis. While DeWees attempts to make the same argument on appeal, he does not

challenge the District Court’s conclusion that, in his complaint, the paycheck allegation

relates only to his assertion of Fourteenth Amendment violations. For this reason, we

reviewed it only within the context of DeWees’ Fourteenth Amendment claim. 

DeWees alludes to an equal protection violation in his appellate brief, but he does 4.

not challenge the District Court’s reasoning that the “class-of-one” theory he asserted is

not available in this context to ground an equal protection claim. We, therefore, regard an

appeal of DeWees’ equal protection claim as waived.

4

that the record did not support any reasonable inference that either Templeton or DeRose

had any personal involvement in the Dauphin County Salary Board’s decision to cut

DeWees’ position: a requisite for asserting a civil rights claim. With regard to Haste, the

District Court held that, as a member of the Dauphin County Salary Board, his vote to

eliminate the Deputy Warden position was a legislative act that entitles Haste to absolute

immunity. On these bases, as to DeWees’ First Amendment retaliation claims arising

from the lawsuit, the District Court granted summary judgment in favor of all of the

Defendants. Upon our own review, we agree with the District Court.3

DeWees next asserts Fourteenth Amendment equal protection and due process

claims emanating from his allegation that the Defendants unjustly withheld his last

paycheck. The Defendants respond that the check was properly kept back pending 4

DeWees’ compliance with instructions to return items regarded as prison property. While

noting a possible factual dispute over whether certain items were actually returned, the
5

District Court ruled that DeWees’ allegation simply does not support a claim of a

Fourteenth Amendment due process violation because the conduct in question plainly

does not shock the conscience, which is necessary to sustain such a claim. We agree.

Regarding DeWees’ civil conspiracy claim, the District Court found that the utter

absence of any direct evidence that the Defendants had any joint plan to treat DeWees

unjustly necessitated a dismissal of this claim. Again, upon our own review, we agree. 

DeWees’ final claim is, essentially, that the same facts grounding his First

Amendment retaliation claims also support an allegation of wrongful discharge under

Pennsylvania law. The District Court found that Dauphin County had governmental

immunity from the wrongful discharge suit. It also granted summary judgment on this

claim in favor of Templeton and DeRose because of the complete absence of record

evidence linking them to the Salary Board’s vote to eliminate DeWees’ position. Finally,

as to defendant Haste, the District Court dismissed the wrongful discharge claim against

him because, according to Pennsylvania decisional law, a single commissioner cannot be

held liable for the actions of an entire board. We do not find any error in these holdings. 

For all of these reasons, we will affirm the order of the District Court granting

summary judgment in favor of the Defendants.