Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-14-2004
Ober v. Brown
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3754
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"Ober v. Brown" (2004). 2004 Decisions. Paper 501.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3754
DARRELL G. OBER,
Appellant
v.
CAPTAIN RICK BROWN; SYNDI GUIDO;
BARBARA CHRISTIE; JOANNA REYNOLDS
Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 02-cv-02186
District Judge: Honorable Christopher C. Conner
Submitted Under Third Circuit LAR 34.1(a)
June 29, 2004
Before: AMBRO, BECKER and GREENBERG, Circuit Judges
(Opinion filed: July 14, 2004)
OPINION
AM BRO, Circuit Judge
Darrell G. Ober appeals the District Court’s order dismissing his action against
counsel (and their investigator) who defended their clients against Ober in a prior
lawsuit. Ober alleges that defendants’ actions during that litigation were taken in
retaliation against him for exercising his First Amendment right of free speech. Because
we conclude that Ober’s complaint failed to state a viable First Amendment retaliation
claim, we affirm.
I.
In 1998, Ober, a police officer with the Pennsylvania State Police (“PSP”),
learned that an FBI agent was investigating the allegation that one of the PSP troopers
was taking bribes. Ober did not report this information to his direct superiors, even
though an established PSP regulation required him to do so. Instead, he discussed the
matter with a Deputy Commissioner of Staff, who was outside the chain of command.
Believing that certain officials of the PSP took various adverse employment
actions against him in retaliation for exercising his First Amendment right to bypass the
chain of command when discussing matters of public concern, in January 2001 Ober
brought an action against them in the United States District Court for the Middle District
of Pennsylvania. He later added a claim for abuse of legal process, alleging that Syndi
Guido and Joanna Reynolds, counsel for defendants, misled the Court. The District
Court dismissed Ober’s claim against Guido and Reynolds, explaining that filing a
motion to dismiss in defense of the lawsuit was not an abuse of legal process.
With respect to Ober’s underlying First Amendment retaliation claim, the District
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Court denied defendants’ summary judgment motion.1 We reversed, holding that
defendants were entitled to summary judgment because Ober did not engage in any
constitutionally protected speech. Ober v. Evanko, No. 02-3725, 2003 WL 22596339, at
*5 (3d Cir. Oct. 21, 2003) (“Ober was required by regulation to report his conversation to
his supervisor; his decision to go outside of the appropriate hierarchy is not a
constitutionally protected free speech right . . . .”).2 We also noted that “none of [the
alleged adverse employment] actions [against Ober] affected Ober’s rank, pay, benefits
or status.” Id. at *2.
In November 2002, while the appeal of Ober I was pending, Ober brought the
current action in the United States District Court for the Middle District of Pennsylvania
against Guido, Reynolds, and Barbara Christie (all of whom were counsel for the Ober I
defendants), and Rick Brown, an investigator for defendants’ counsel in Ober I. Ober
alleged that during the course of the Ober I litigation defendants committed numerous
acts of misconduct, including presenting false testimony, unlawfully acquiring irrelevant
personal information to intimidate him, attacking his key witness and manipulating the
witness’ responses intentionally to discredit him, creating a legally irrelevant false fact
scenario, and failing to disclose the names of their witnesses. Ober asserted that these
actions were taken to retaliate against him for exercising his First Amendment right to
1
That motion was based on qualified immunity grounds.
2
Thus we did not need to decide, and did not decide, whether defendants were entitled
to qualified immunity.
3
file Ober I. Defendants moved for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c). The District Court granted the motion, concluding that Ober
failed to state a cause of action for the First Amendment retaliation claim. He appeals.3
II.
When a Rule 12(c) motion alleges plaintiff’s failure to state a claim upon which
relief can be granted as here, we analyze the motion under the same standard as a Rule
12(b)(6) motion to dismiss. Turbe v. Government of Virgin Islands, 938 F.2d 427, 428
(3d Cir. 1991). Therefore, our review of the District Court’s order to dismiss is plenary
and we affirm only if no relief could be granted after accepting all factual allegations in
the complaint as true and drawing all reasonable inferences in favor of the plaintiff. Id.
III.
To prevail on his First Amendment retaliation claim, Ober must establish that: (a)
he engaged in activity protected by the First Amendment; (b) defendants retaliated in
response; and (c) defendants could not rebut the claim by demonstrating that they would
have taken the same action even in the absence of the protected speech. Baldassare v.
State of New Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001). Although Ober’s filing of a
suit is protected under the First Amendment, Anderson v. Davila, 125 F.3d 148, 161 (3d
Cir. 1997), he obviously fails to satisfy the second prong; he does not provide us with
any factual or legal support for his contention that the alleged actions the attorneys and
3
We have jurisdiction under 28 U.S.C. § 1291.
4
their investigator took were retaliation against him for his filing a lawsuit, as opposed to
the actions merely taken for the purpose of defending a lawsuit. All he asserts is how
inappropriate, distasteful, or unlawful defendants’ conduct was during the litigation.
Thus we agree with the District Court that what Ober is essentially alleging is nothing
more than defendants’ misconduct in the course of representing their clients, which, if
true, should have resulted in sanctions assessed by the Ober I Court. See Heffernan v.
Hunter, 189 F.3d 405, 413 (3d Cir. 1999).
Ober also contends that defendants acted beyond the scope of their representation
when they committed the alleged misconduct. As whether defendants acted within the
scope of their representation has no bearing on the question of whether their conduct was
retaliatory, we do not address this issue.
* * * * *
Accordingly, we affirm the District Court’s order dismissing Ober’s complaint.
5