Michalesko v. Freeland Borough

18 F. Supp. 3d 609, 2014 WL 1689719, 2014 U.S. Dist. LEXIS 58896
CourtDistrict Court, M.D. Pennsylvania
DecidedApril 29, 2014
DocketCivil Action No. 3:13-2634
StatusPublished
Cited by8 cases

This text of 18 F. Supp. 3d 609 (Michalesko v. Freeland Borough) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michalesko v. Freeland Borough, 18 F. Supp. 3d 609, 2014 WL 1689719, 2014 U.S. Dist. LEXIS 58896 (M.D. Pa. 2014).

Opinion

MEMORANDUM

MALACHY E. MANNION, District Judge.

Scott D. Michalesko spent nearly twelve years as an officer with the Freeland Borough police department. During the last year of his service, he broke both elbows, one wrist, also sustaining injuries to his ribs and face while apprehending a criminal. He recovered for four months before he was cleared by his doctor to return to limited duty. One week after being cleared by his doctor, he was notified that borough officials were conducting an investigation into whether some of his actions warranted suspension. The next day, December 22, 2011, a friend of the family called police and told them that Mr. Mi-chalesko held a gun to his head and threatened to commit suicide. After his daughter was able to calm him down and the gun was taken away, she took him to the hospital before the Pennsylvania State Police arrived. Mr. Michalesko voluntarily checked himself into the hospital to receive mental treatment, but only remained there for a few hours.

After becoming aware of the situation, the Freeland Borough’s chief of police sent a letter to the borough council to notify them of the situation and request council to relieve Mr. Michalesko of his duties for the time being. Approximately two weeks later, the Freeland Borough council voted to temporarily suspend plaintiff without pay. A hearing was conducted roughly a month later where the council received evidence from both the Borough solicitor and Mr. Michalesko. At a later meeting, council voted to terminate the plaintiff for actions unbecoming an officer. That decision was later overturned by an arbitration panel. The plaintiff is now pursuing alleged violations of his constitutional rights and rights under the ADA and PHRA.

The court finds the plaintiff has stated valid due process and first amendment claims against the Borough at this stage of the proceedings. However, the individual members of the council are entitled to qualified immunity as to the due process claim, but not as to the first amendment claim. Further, the court finds the plain[615]*615tiff has failed to state a claim under both the ADA and the PHRA. As such, those claims are dismissed.

I. FACTUAL BACKGROUND

The plaintiff, Scott D. Michalesko was a police officer for the Freeland Borough police department for approximately twelve years. He was also a member of the Fraternal Order of Police Officers Union and acted as the Bargaining Committee Chairman for his police department. In August 2011 he suffered various injuries, including two broken elbows, a broken wrist, bruised ribs, and a facial injury, while making an arrest. The day after he was injured he requested and was granted Heart and Lung benefits based on his physical ailments. (Doc. 6, p. 4). The plaintiff was unable to work from the date of his injury through early December.

In early September he informed the Freeland Borough council that the union intended to proceed with binding interest arbitration 1 Starting in early December, the plaintiff alleges that the defendants who were members of the Freeland Borough council during this period, Robert Quinn, John Budda, John Potoskie, Rick Wenner, Barbara Tulanowski, Joseph Pal-ko, Jr., and Daniel Bobby (hereinafter referred to collectively as the “the council members”), all engaged in a campaign of harassment against him. He claims they disparaged him by claiming he was able to return to work, pressured him to return to work without full medical clearance, made false accusations of criminal wrongdoing against him, suspended him without pay, and terminated him in February, 2012. (Doc. 6, p. 7).

The plaintiff avers that on December 6, 2011, the defendants determined he was ready to return to work and, as such, “they were going to terminate his Heart and Lung benefits.” Approximately one week later, the plaintiffs doctor cleared him to return to work in a limited capacity. There is no allegation that the defendant’s actually terminated those benefits prior to him being cleared to return to work the next week. The doctor went on to state that he would be able to resume his full duties within two to three weeks. {Id., p. 5). Despite this clearance, it does not appear that the police department scheduled him to work at all between the middle of December and first week of January, 2012.

Although it is unclear from the complaint and additional filings, the plaintiff and the council members had some type of meeting on December 20, 2011 concerning the continuation of his benefits. The council members sent the plaintiff a letter the next day regarding that meeting, but again it is not apparent to the court the exact nature of the conflict, based on the available pleadings and documents. (Doc. 11, Att. 2; Doc. 20, Att. 4).

The day after that letter was sent, the plaintiff was in his basement when he called his daughter.2 She was worried about her father’s recent depression, so she went down to see what was going on. She found him with a gun in his hand, but [616]*616not pointed at his body. After his daughter took the gun, she called her mother and told her what happened. The plaintiffs wife then called a friend who reported the incident to the Pennsylvania State Police.3

When the friend called 911, he reported the plaintiff put a gun to his head and threatened to commit suicide in front of his family. State troopers responded to the scene and upon arrival found the plaintiff had already departed for the hospital with his daughter. The troopers headed to the hospital, but were called off when Wilkes-Barre police said he had arrived at Wilkes-Barre General Hospital and agreed to commit himself for treatment. The troopers then returned to the plaintiffs home and seized three of his handguns. (Doc. 11, Att. 2).

A short time later, a member of the Freeland Borough police department became aware of the incident and contacted the state police. The state police reported they responded to a call for the plaintiff who “held a pistol to his head and threatened to commit suicide in front of his family members.” After gathering some additional information, the Freeland officer contacted Police Chief Nadine Sist. Chief Sist told the officer to go to the hospital to ensure the plaintiff was not armed and did not pose a threat to himself, his family, or the public. While en route to the hospital, the officer received a call from Wilkes-Barre police that the plaintiff and his daughter had arrived unharmed. When the officer got to the hospital, he learned that the plaintiff had checked himself in for mental health treatment. All of this information was later communicated to Chief Sist.

Chief Sist contacted council president Robert Quinn, Mayor Tami Martin, and council solicitor Donald Karpovich and apprised them of the situation. She then called the state police to see whether they had seized the plaintiffs service weapon, but they reported they had only found his personal firearms. A subsequent search of the plaintiff’s locker revealed his service weapon was left at the police station. (Doc. 11, Att. 2).

Later that same day Chief Sist wrote a letter to the council members informing them of the alleged suicide attempt and later events. At the close of the letter, she requested they consider relieving the plaintiff of his duties for the safety of fellow officers and the safety of the community.

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Cite This Page — Counsel Stack

Bluebook (online)
18 F. Supp. 3d 609, 2014 WL 1689719, 2014 U.S. Dist. LEXIS 58896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michalesko-v-freeland-borough-pamd-2014.