Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-25-2007
Herman v. Carbon
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2311
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"Herman v. Carbon" (2007). 2007 Decisions. Paper 386.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2311
MARY ALICE HERMAN
v.
CARBON COUNTY;
ROBERTA BREWSTER, Court Administrator;
WILLIAM O. GUREK; WAYNE NOTHSTEIN;
CHARLES GETZ, County Commissioner
Roberta Brewster,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 04-cv-00614
(Honorable James M. Munley)
Argued April 23, 2007
Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN*, Circuit Judges.
(Filed: September 25, 2007)
David M. Donaldson, Esquire (Argued)
Supreme Court of Pennsylvania
Administrative Office of PA Courts
1515 Market Street, Suite 1414
Philadelphia, Pennsylvania 19102
Attorney for Appellant
*
The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
Donald P. Russo, Esquire (Argued)
117 East Broad Street
P.O. Box 1890
Bethlehem, Pennsylvania 18016
Attorney for Appellee Mary Alice Herman
OPINION OF THE COURT
SCIRICA, Chief Judge.
In this interlocutory appeal, Court Administrator Roberta Brewster seeks review of
the denial of her motion to dismiss a 42 U.S.C. § 1983 action against her on grounds of
qualified immunity and failure to state a claim. We will affirm the denial of the motion to
dismiss on qualified immunity grounds. But on the failure to state a claim, we find the
amended complaint fails to comport with fair notice pleading standards. Therefore, we
will vacate the order and remand to allow Jury Clerk Mary Alice Herman to replead her
retaliation claim based on her exercise of First Amendment free speech rights.
I.
This case stems from the decision to reduce the hours from full to part-time of
Herman, the Jury Clerk for the Court of Common Pleas of Carbon County. The President
Judge of the Common Pleas Court originally recommended a reduction of Herman’s
hours to the Jury Selection Commissioners. The Jury Selection Commissioners are the
President Judge and two elected Jury Commissioners. The two elected Jury
Commissioners voted against the reduction on October 27, 2003. When the President
Judge continued to advocate the reduction, the Jury Commissioners spoke to the media.
2
The President Judge then took his case for reduction to the County
Commissioners, who sit as the County Salary Board. On December 12, 2003, Herman
wrote to the County Commissioners requesting they adhere to the October 27, 2003 vote
of the Jury Commissioners. But the County Commissioners voted to approve the
President Judge’s recommendation to reduce Herman’s hours. Herman then sued the
County Commissioners, the County, and Brewster, alleging a retaliation claim under 42
U.S.C. § 1983 based on Herman’s exercise of her First Amendment free speech rights, as
well as additional claims not at issue in this appeal.1
Herman contends the reduction of her hours was in retaliation for her support of
the elected Jury Selection Commissioners in violation of the First Amendment. Brewster
filed a motion to dismiss, arguing failure to state a claim and qualified immunity. The
District Court denied her motion to dismiss with respect to the retaliation claim. Brewster
appealed the partial dismissal of her motion contending she was entitled to qualified
immunity and plaintiff had failed to state a claim.2
II.
1
Herman’s additional claims against Brewster included a claim under the
Pennsylvania Whistleblower’s statute, 43 Pa. Const. Stat. §§ 1421–28 , a 42 U.S.C. §
1983 claim based on violation of her due process rights under U.S. Const. Amend. XIV §
1, and a claim for age discrimination under the Age Discrimination in Employment Act,
29 U.S.C. §§ 621–34.
2
Jurisdiction of this 42 U.S.C. § 1983 suit in federal District Court was based on 28
U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291.
3
A plaintiff claiming retaliation under the First Amendment must allege: “(1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of
ordinary firmness from exercising his constitutional rights, and (3) a causal link between
the constitutionally protected conduct and the retaliatory action.” Thomas v.
Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing Mitchell v. Horn, 318 F.3d
523, 530 (3d Cir. 2003)). Qualified immunity protects eligible defendants from liability
as well as the additional burdens accompanying a lawsuit, such as discovery and
preparing for trial. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). But in order to invoke
qualified immunity, a defendant must prove that, viewing the facts in a light most
favorable to plaintiff, plaintiff has failed to allege a violation of a clearly established
constitutional right. See Saucier v. Katz, 533 U.S. 194, 201–202 (2001) (“The relevant,
dispositive inquiry in determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.”). The District Court found viewing the facts in a light most favorable to
Herman, she had pleaded a violation of clearly established law by claiming retaliation in
violation of her First Amendment free speech rights. See Azzaro v. County of Allegheny,
110 F.3d 968, 975 (3d Cir. 1997) (discussing the contours of a retaliation claim based
upon violation of First Amendment rights). We agree. Accordingly, we affirm the
District Court’s denial of partial immunity.
But Herman’s amended complaint suffers from a more fundamental problem. A
“complaint must only ‘give the defendant fair notice of what the plaintiff’s claim is and
4
the grounds upon which it rests.’” Thomas, 463 F.3d at 295 (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). But to satisfy fair notice, a plaintiff must at minimum state the
operative facts underlying the claim. Kyle v. Morton High School, 144 F.3d 448, 455 (7th
Cir. 1998). Herman contends she openly and publicly supported the Jury Commissioners’
statements to the media. But Herman does not allege any operative facts. She fails to
allege when these open and public expressions took place or the content of these
expressions. These allegations are crucial in allowing defendants an opportunity to
meaningfully respond. See Kyle, 144 F.3d at 455 (“How can the [defendant] determine
whether the speech engaged in by the plaintiff was not protected, when they have no idea
to what speech, if any, Kyle is referring?”). Herman’s amended complaint fails to allege
sufficient facts to satisfy fair notice requirements.
It may be possible that Herman can state a valid claim and she should be granted
leave to amend. See Fed. R. Civ. P. 15(a) (“[L]eave shall be freely given when justice so
requires.”); Foman v. Davis, 371 U.S. 178, 182 (1962) (“If the underlying facts or
circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits.”); Newark Branch, NAACP v.
Town of Harrison, New Jersey, 907 F.2d 1408, 1417 (3d Cir. 1990) (“[C]ourts have held
that grants for leave to amend complaints should be routinely granted to plaintiffs, even
after judgments of dismissal have been entered against them, if the appropriate standard
for leave to amend under Fed. R. Civ. P. 15(a) is satisfied.”).
III.
5
For the foregoing reasons, we will vacate the order and remand to the District
Court with directions to allow Herman to replead her claim.
6