James M. Dewees v. Jeffrey T. Haste

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2804
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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
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Submitted Under Third Circuit LAR 34.1(a)
May 20, 2010
Before: FUENTES, HARDIMAN, and NYGAARD, Circuit Judges.
(Filed: July 8, 2010)
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OPINION OF THE COURT
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The District Court noted that DeWees’ complaint appeared to raise both1.
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.
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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 constitutes1
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

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In addition, the District Court concluded that it “cannot say that Defendants have2.
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).
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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 ruled2

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DeWees attempted, at the time of summary judgment, to construe his allegation3.
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 does4.
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 pending4
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

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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.

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