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Media Alerts - Zaloga v. Borough of Moosic - Third Circuit
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October 26, 2016
  Zaloga v. Borough of Moosic - Third Circuit
Headline: Third Circuit rules that retaliation for free speech does not alone overcome qualified immunity doctrine.

Area of Law: Qualified Immunity, Constitutional Law

Issues Presented: Does qualified immunity extend to a government actor's retaliation against a plaintiff for use of free speech?

Brief Summary: The owner of a medical company that serviced Lackawanna County prison engaged in a political dispute with members of Moosic Borough's government. In retaliation, those parties attempted to end his contract with the prison, and he sued for violation of his First Amendment rights. The Third Circuit ruled that the nature of the constitutional principles at play did not create a right clear enough to overcome the reasonableness standard created by the qualified immunity doctrine.

Extended Summary: Plaintiff Dr. Edward Zaloga is the owner of Correctional Care, Inc., a company that services the medical needs of correctional facilities. While living in Moosic Borough in Lackawanna County, his company contracted with Lackawanna County prison. Plaintiff became involved in a dispute with a tire company whose facility was immediately adjacent to his home. He was dissatisfied with the Borough's handling of the situation and began political attacks against the president of the borough council and the mayor.

A month later Plaintiff was informed by the county solicitor that Lackawanna County would not continue its contract with his company upon its expiration. He was also told that he could bid for the contract against other similar companies, but learned from a prison board member that his political opponents were working to block his contract renewal by contacting members of the board and gaining their support. The contract was ultimately renewed in 2009 and again in 2015.

Plaintiff filed a complaint in 2010 for alleged violations of his First and Fourteenth Amendment rights. Defendants moved for summary judgment. That motion was granted in part and denied in part, with the court ruling that the jury should decide whether one defendant was entitled to qualified immunity from suit.

The Third Circuit began by explaining that qualified immunity only shields government agents from suit insofar as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine qualified immunity, the court first examines whether the facts show a violation of the plaintiff's constitutional rights. Second, the court evaluates whether those rights were clearly established in the specific context of the case.

The Court held that because the district court's analysis was mistaken as to the second part of the analysis there was no need to analyze the first. The Court explained that qualified immunity is meant to protect government workers who make mistakes but not those who are plainly incompetent or who knowingly violating the law. Thus, the constitutional right must be clearly established. "[T]he contours of that right must be clear to a reasonable official" so that such officials can be expected not to violate that right. Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012). It is not enough that there is a well-established right against retaliation by a state actor for free speech; this right must be understood by a reasonable state actor.

Turning to Third Circuit precedent, the Court concluded that retaliation for free speech must be of a particularly virulent character to violate a constitutional right. That actor must coerce or threaten a third party to act in order for that conduct to be actionable. McLaughlin v. Watson, 271 F.3d 566 (3d. Cir. 2001). The case at hand involved no such coercion or threats. Furthermore, it has never been established that a governmental official who takes no direct action beyond pressuring others to act can be held personally liable.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/152723p.pdf

Panel (if known): Smith, Jordan, Rendell

Argument Date: July 12, 2016

Date of Issued Opinion: October 24, 2016

Docket Number: 15-2723

Decided: Reversed and Remanded

Case Alert Author: John Farrell

Counsel: Joshua M. Autry, Esq. [Argued], Counsel for Appellants; Bruce L. Coyer, Esq., Joseph T. Healy, Esq. [Argued], Counsel for Appellees

Author of Opinion: Judge Jordan

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 10/26/2016 12:34 PM     3rd Circuit  

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