NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-2226

_____________

CHRISTOPHER D. AUBRECHT,

 Appellant

 v.

PENNSYLVANIA STATE POLICE, JEFFERY B. MILLER, JOHN R. BROWN,

RALPH M. PERIANDI, RODNEY PATTERSON, JAMES J. GAROFOLO, JAMES

MCFADDEN, MARCENIA ROBINSON, STACY SCHMITT, BRYAN L. KEY,

ANTHONY DELUCA, MICHELLE FREE, AND THE PENNSYLVANIA STATE

TROOPERS ASSOCIATION

 

_____________

On Appeal from the United States District Court 

for the Western District of Pennsylvania

(D.C. No. 06-cv-01053)

District Judge: Honorable David Stewart Cercone

_____________

Submitted Under Third Circuit L.A.R. 34.1(a),

July 15, 2010

Before: FUENTES, VANASKIE, and WEIS, Circuit Judges.

(Opinion Filed: August 5, 2010)

OPINION OF THE COURT
 We exercise plenary review of the District Court’s entry of summary judgment. 1

Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003).

 Aubrecht defaulted in the District Court by failing to respond to the Defendants’ 2

Concise Statements of Material Facts or provide his own. Thus, pursuant to the Western

District of Pennsylvania’s Local Civil Rule 56.1(C) and (E), the facts set forth in the

statements of the Commonwealth Defendants and the Association are undisputed for

purposes of this appeal. 

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FUENTES, Circuit Judge:

Christopher D. Aubrecht appeals the District Court’s order granting summary

judgment to the Pennsylvania State Police (“PSP”), a number of named officers in their

individual and official capacities (together with the PSP, the “Commonwealth

Defendants”), and the Pennsylvania State Troopers Association (the “Association”). We

have jurisdiction under 28 U.S.C. § 1291, and will affirm.1

I.

Because we write primarily for the parties, we discuss the facts only to the extent

necessary for resolution of the issue on appeal. Pennsylvania State Trooper Christopher 2

D. Aubrecht contends that his complaints concerning an alleged ticketing quota system

resulted in adverse treatment at the hands of his superiors. Aubrecht has been employed

by the PSP since 1994. He serves in Troop T at the New Stanton Station, a troop

assigned the task of patrolling the Pennsylvania Turnpike system. As a turnpike trooper,

Aubrecht’s primary responsibility is traffic enforcement. 
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In an effort to evaluate the relative performance of officers on turnpike patrol, one

factor the PSP considers is the individual officers’ rates of traffic citations, written

warnings, and assists to motorists compared to the monthly station averages in those

categories. As a rule, officers are not instructed to issue any set number of citations. 

When officers consistently fall below the average, however, supervisors will assign a

senior officer to accompany the junior officer (known as “ride-a-longs”) to ensure that the

officer is using his or her unobligated time wisely.

For many years, Aubrecht had written far fewer citations than the station average,

resulting in friction with his supervisors. In June 2004, Sergeant Key, citing pressure

from superiors, allegedly instructed Aubrecht to write a minimum of twenty citations per

month. On August 15, 2004, Aubrecht sent a memo to Key expressing his concerns about

the legality of the required number of citations; Aubrecht invoked 71 P.S. § 2001, a

Pennsylvania law that proscribes the use of quotas in the enforcement of traffic laws. 

Key responded on August 16, 2004, claiming that Aubrecht had misunderstood their

conversation and that he did not mean to order him to write twenty citations per month. 

Aubrecht claims that as a result of his refusal to participate in the illegal quota

system, he was subjected to adverse employment conditions, which only increased after

the June 2004 conversation with Key. The adverse employment actions of which he

complains include: ride-a-longs, denial of transfer requests, denial of overtime

opportunities, remedial training, poor performance evaluations, denial of training, and
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denial of certain shift selections. Based on these perceived slights, Aubrecht sought relief

in the District Court under 42 U.S.C. § 1983 for violations of his First and Fourteenth

Amendment rights.

The District Court held that Aubrecht failed to show that the Commonwealth

Defendants deprived him of a constitutional right or that the Association acted under

“color of state law.” The Court held that while the Commonwealth Defendants did act

under “color of state law,” none of the actions alleged by Aubrecht amounted to

constitutional violations. The Court granted summary judgment to the defendants and

dismissed the case. Aubrecht appeals.

II.

A.

The Commonwealth Defendants argue, and we agree, that Aubrecht’s appeal must

“be dismissed due to appellants manifest failure to comply with [Federal Rule of

Appellate Procedure] 28(a)(9)(A).” (Br. at 35.) Rule 28(a)(9)(A), Fed. R. App. P., and

Local Appellate Rule 28.3(c) both require that appellants’ briefs articulate contentions

supported by reasoning grounded in authority, as well as citations to the factual record. 

We have held “that casual mention of an issue in a brief is cursory treatment insufficient

to preserve the issue on appeal.” Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). 

“[A]n argument consisting of no more than a conclusory assertion . . . (without even a

citation to the record) will be deemed waived.” Reynolds v. Wagner, 128 F.3d 166, 178
 Moreover, many of the alleged facts included in the brief are contradicted by the 3

record. For example, the Commonwealth Defendants’ Concise Statement of Material

Facts clearly articulates that the alleged “quota system” amounted to nothing more than a

monthly average that assisted supervisors in ensuring that officers used their time wisely. 

In fact, Aubrecht admitted to this in his own deposition, calling it a “dynamic” quota that

changed from month to month. (App. A-126.) Aubrecht’s brief does not contest or

explain these critical factual issues, choosing instead to copy and paste stale allegations

from his complaint. 

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(3d Cir. 1997). Disregarding these well-settled rules, Aubrecht’s brief includes no

citations to the record and, at best, surface-level treatment of authority. 

In Aubrecht’s brief, numerous pages of the “facts” section are copied directly from

the Complaint without citations to the record. Large portions of the “facts” section are

then recopied verbatim in the “argument” section of the brief, again without record

citations. Notwithstanding his contention that “genuine issues of fact exist[] concerning 3

the claims advanced by the Appellant in that the evidence of record is such that a

reasonable jury could return a verdict for the Appellant,” (Br. at 14), Aubrecht fails to

point us to any facts or evidence in the record that could undermine the District Court’s

holding.

Additionally, Aubrecht makes virtually no effort to support his allegations with

relevant legal authority. For example, Aubrecht writes: “[a] public employee does not

speak ‘as a citizen’ when he makes a statement ‘pursuant to official duties.’” (Appellant’s

Brief at 20 (quoting Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)).) After quoting these

phrases, Aubrecht fails to provide any evidence or authority that would explain to this
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Court why, as a police officer, his statements to superiors regarding the alleged quota

system would not qualify as statements made “pursuant to official duties.” He makes no

attempt to distinguish his conduct from the conduct explicitly excluded from coverage in

Garcetti. The lack of engagement with the case law renders his brief insufficient pursuant

to the Rules of Appellate Procedure and our local rules. Because Aubrecht’s submission

does not satisfy the undemanding requirement that a brief contain minimally adequate

“supporting arguments and citations,” we will dismiss his appeal. Simmons v. City of

Philadelphia, 947 F.2d 1042, 1065 (3d Cir. 1991). 

B.

Even if Aubrecht had filed a proper brief, we would hold that the District Court

did not err in granting summary judgment to the Commonwealth Defendants and the

Association. To succeed in a § 1983 claim, the defendant must allege a deprivation of a

constitutional or federal right and that the defendants acted under “color of state law.” 

Aubrecht has not shown that any of the defendants violated his constitutional rights or

that the Association acted under “color of state law.”

Aubrecht’s primary contention on appeal appears to be that the individual

Commonwealth Defendants violated his First Amendment right to freedom of speech by

punishing him for speaking out against the “illegal and unlawful ‘quota system.’” 

(Appellant’s Brief at 20-27.) As stated above, however, the case law simply does not

support this allegation. Consistent with the Supreme Court’s holding in Garcetti v.
Aubrecht also raises a Fifth Amendment Due Process claim. Because the alleged 4

wrongs involve only state actors, this claim was properly dismissed.

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Ceballos, we have held that where a public employee makes statements within the

workplace pertaining to his or her official duties, that speech is not protected by the First

Amendment. See Foraker v. Chaffinch, 501 F.3d 231, 241-43 (3d Cir. 2007) (“In making

their voices heard up the chain of command and reporting to the State Auditor under

order, [plaintiffs] spoke pursuant to their duties as government employees. . .”). Here, it

is undisputed that Aubrecht confined all of his comments to the workplace and that all of

his complaints dealt with aspects of his official duties as a police officer. Therefore, his

speech regarding the alleged “quota” is not afforded constitutional protection.

Aubrecht also appears to raise Fourteenth Amendment challenges regarding his

treatment at the hands of the Commonwealth Defendants. First, he argues that the police

department deprived him of a property interest without due process of law by denying

overtime, shift preferences, station transfers, etc. Aubrecht points to no authority to 4

support his contention that these perceived slights implicate property interests protected

by the Constitution. Regardless, the PSP does provide a process, via a grievance

procedure, that Aubrecht simply chose not to use, and Aubrecht points to no authority

suggesting that such a process is inadequate. Second, Aubrecht asserts an Equal

Protection claim. It is well-settled, however, that a public employee cannot assert an
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Equal Protection claim under the “class of one” theory as Aubrecht attempts to do. 

Enquist v. Oregon Dep’t of Agriculture, 553 U.S. 591 (2008). 

The District Court also properly concluded that the Association was not acting

under “color of state law.” The Supreme Court has held that “to constitute state action,

the deprivation must be caused by the exercise of some right or privilege created by the

State or by a person for whom the State is responsible, and the party charged with the

deprivation must be a person who may fairly be said to be a state actor.” West v. Atkins,

387 U.S. 42, 48 (1988) (internal quotations omitted). Aubrecht has pointed to nothing in

the record suggesting that the Association acted in concert with the Commonwealth

Defendants in allegedly violating his constitutional rights.

III.

For the foregoing reasons, we affirm the District Court’s judgment.