Opinion
Civil Action No. 1:03-CV-1890.
January 4, 2005
MEMORANDUM
Presently before the court are motions (Docs. 58, 61) for summary judgment by defendants Joseph Korsak ("Korsak") and Billy G. Lanham ("Lanham"). Defendants argue that there is insufficient evidence of record upon which a reasonable jury could find them liable under 42 U.S.C. § 1983 for violating the right of plaintiff James E. Foster ("Foster") to access to the courts. The court agrees, and will therefore grant the motions.
The facts herein are presented in the best light to the plaintiff, in accordance with the standard of review for a motion for summary judgment. See infra Part II.
In 1997, Foster was terminated from employment because of his alleged sexual harassment of a co-worker. (Doc. 62, Exs. 1 5 at 28-29, 50). Foster subsequently hired Korsak, an attorney in private practice, to represent him in an unemployment compensation matter related to the termination. (Doc. 59 at 2). Korsak also represented Foster in a hearing before the Pennsylvania Human Relations Commission ("PHRC"). (Doc. 62, Ex. 5 at 21, 25, 30, 42-43; Doc. 60 ¶ 2, 4).
Following the PHRC hearing, Foster had a difficult time finding gainful employment. (Doc. 62, Ex. 5 at 46-49). At some point he attempted to utilize the services of the Department of Labor and Industry's ("DOLI") job resource center, Career Links. (Doc. 22 at 2). When this proved fruitless, Foster purportedly contacted DOLI and was told by an unknown individual that a DOLI database listed the circumstances of his previous termination — apparently as related to the sexual harassment allegations. (See Doc. 61 at 2 Ex. 2; Doc. 62, Ex. 5 at 26-27, 32-33). In October 2001 Foster approached Korsak for advice on his employment problems. (Doc. 62, Ex. 5 at 24-25). During this fifteen minute conversation Korsak allegedly told Foster that "the best thing you can do is . . . go home and pray that some sorry-assed human resources manager will hire you." (Doc. 62, Ex. 5 at 46, 55, 62).
In January 2002 Foster wrote to then — Pennsylvania Governor Mark Schweiker about what Foster believed was a DOLI "blacklist" database. (Doc. 62, Ex 1). Foster's letter was subsequently referred to Lanham at Career Links, who wrote to Foster and encouraged him to update his online resume and contact the regional office where Foster had originally registered. (Doc. 62, Exs. 2 5 at 55-56). Foster subsequently wrote Lanham requesting information on the alleged DOLI "blacklist" database as well as Carrer Link's source of funding. (Doc. 62, Exs. 3, 4). Lanham did not respond to these requests. (Doc. 56 ¶ 9).
Foster commenced the above-captioned action in October 2003. The complaint, filed pro se, named Korsak's former law firm and numerous state entities and officials as defendants. (Doc. 1). By order of court dated February 23, 2004 (Doc. 19), claims against the majority of defendants were dismissed and Foster was granted leave to amend the complaint. On March 8, 2004, Foster filed an amended complaint, asserting claims under 42 U.S.C. §§ 1981, 1983, and 1985 against Korsak, Lanham, and Wendy McCrory Rotz ("Rotz"). (Doc. 22). The court construed the amended complaint to aver that defendants concealed actionable defamation, dismissed the §§ 1981 and 1985 claims against Korsak and Lanham, and dismissed all claims against Rotz. (Doc. 49 at 11). The remaining claims against Korsak and Lanham arise under 42 U.S.C. § 1983 and are presently before the court in defendants' motions for summary judgment. (See Docs. 58, 61).
As noted in the memorandum accompanying the order of court dated August 8, 2004 (Doc. 49), the amended complaint was inartfully drafted and the conspiratorial averments nebulous at best.
The substance of Foster's allegations is that he was unsuccessful in his job search because DOLI, through Lanham, possessed in its database and posted to prospective employers incorrect, defamatory, and fraudulent information. (Doc. 22 at 2; Doc. 62, Ex. 5 at 26-27). Foster alleges that Korsak is knowledgable about the purported database, and thus involved with DOLI in depriving him of gainful employment. (Doc. 62, Ex. 5 at 13-14, 44-45, 69). Foster also asserts that Korsak's submission of redacted documents at the unemployment commission followed by the submission of the same documents in nonredacted form at the PHRC hearing demonstrates Korsak's duplicity in concealing the defamatory information. (Doc. 62, Ex. 5 at 38).
Foster implies that the conspiracy to maintain the blacklist database extends to the law firms of central Pennsylvania, a plethora of which have declined to represent him in this case and have subsequently become defendants in one of Foster's three related cases (Doc. 62, Ex. 5 at 67-68). See Foster v. Myers, No. 04-1617 (M.D. Pa. July 23, 2004).
II. Standard of Review
"Summary judgment serves as a minimal but important hurdle for litigants to overcome before presenting a claim to a jury."Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004). Faced with such a motion, the adverse party must produce affirmative evidence, beyond the disputed allegations of the pleadings, in support of the claim. FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Corneal v. Jackson Township, 313 F. Supp. 2d 457, 464 (M.D. Pa. 2003),aff'd, 94 Fed. Appx. 76 (3d Cir. 2004), cert. denied, 73 U.S.L.W. 3196 (Oct. 4, 2004). "Such affirmative evidence — regardless of whether it is direct or circumstantial — must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001) (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)). Only if this burden is met can the cause of action proceed. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see FED. R. CIV. P. 56(c), (e).
III. Discussion
Section 1983, and other Reconstruction-era provisions of the Civil Rights Act, 42 U.S.C. §§ 1981- 1986, offers private citizens a means to redress violations of federal law by state officials.See id. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .Id. Section 1983 is not a source of substantive rights, but merely a method to vindicate violations of federal law committed by state actors. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish a claim under this section, a plaintiff must show a deprivation of a "right secured by the Constitution and the laws of the United States . . . by a person acting under color of state law." Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)). A private person acting in conjunction with the state or one of its agents may be "acting under color of state law" for purposes of a § 1983 claim. Dennis v. Sparks, 449 U.S. 24, 27 (1980).
The United States Constitution guarantees a right of access to the courts, and a violation of this right is actionable under § 1983. See Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990). A right-of-access suit seeks "to provide vindication for a separate and distinct right to seek judicial relief for some wrong." Christopher v. Harbury, 536 U.S. 403, 414-15 (2002). The right of access is thus ancillary to an underlying claim, which must be "nonfrivolous" and "arguable," and without which "a plaintiff cannot have suffered injury by being shut out of court." Id. at 415.
The underlying claim in the present action is defamation. (Doc. 49 at 11). "Defamation is a communication which tends to harm an individual's reputation so as to lower him or her in the estimation of the community or deter third persons from association or dealing with him." Elia v. Erie Ins. Exchange, 634 A.2d 657, 660 (Pa.Super.Ct. 1993). The plaintiff in a defamation action has the burden of establishing:
(1) The defamatory character of the communication.
(2) Its publication by defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.
In the instant case, Foster's defamation claim is without any demonstrable support. It rests entirely on the purported existence of a DOLI blacklist. To support his claim of a blacklist, Foster relies upon: (1) an alleged telephone conversation with an unknown individual at DOLI (Doc. 62, Ex. 5 at 33, 57); (2) Korsak's alleged October 2001 comment (Doc. 62, Ex. 5 at 46, 55, 62); and (3) the fact that he has yet to find gainful employment. (Doc. 62, Ex. 5 at 34, 36, 37, 49). Foster has no documentation to support his theory. (Doc. 62, Ex. 5 at 32). Foster has no testimony to support his theory. Suffice it to say that the claims presently before the court are built upon sheer speculation and conjecture; even when viewed in the best light a reasonable jury could not find any of the requisite elements of defamation.
Foster explained his theory at a deposition:
Attorney: [H]ow do you believe that you were somehow discriminated against by potential employers based on this alleged database, if the only time you've ever heard of it was this one phone call [to] the Department of Labor and Industry?
Foster: Well, I think if you look at the credentials, my credentials, and what I've done, what I've designed, what I did, there's no other reason for it.
. . . .
Attorney: [Y]ou believe that you're such an exceptional employee that anyone would be wrong not to hire you. And that the only reason you're not being hired is because of the existence of this alleged database. Do you see the problem I'm having connecting the dots here?
Foster: Apparently it's probably because you don't know my skill level.
(Doc. 62, Ex. 5 at 34, 49).
Further, there is nothing in the record upon which a reasonable jury could find that Korsak — undisputedly an attorney in private practice — worked in conjunction with the state. Foster supports his conspiracy theory by pointing to his former employer's internal memoranda that were submitted in a redacted form at either the unemployment or the PHRA hearing. (See Doc. 64 at 4; Doc. 62, Ex. 5 at 38). However, this does not lend credence to the claims presently before the court. Moreover, a comparison of the original documents and the redacted versions demonstrates that the nondisclosed information is irrelevant and was likely redacted for encompassing attorney-client communications. (Compare Doc. 64, Ex.16 with Doc. 64, Ex.17).
Because there is insufficient evidence of record to support the underlying defamation claim, defendants' motions for summary judgment will be granted. See Christopher, 536 U.S. at 414-419.
An appropriate order will issue.
ORDER
AND NOW, this 4th day of January, 2005, upon consideration of the motions (Docs. 58, 61) for summary judgement, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:1. The motions (Docs. 58, 61) are GRANTED.
2. The Clerk of Court is directed to enter judgment in favor of defendants Joseph Korsak and Billy G. Lanham and against plaintiff James E. Foster.
3. The Clerk of Court is directed to CLOSE this case.
4. Any appeal from this order is DEEMED frivolous and not in good faith. See 28 U.S.C. § 1915(a)(3).